McClutchey v. Milwaukee Cnty.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtFOWLER
Citation300 N.W. 917,239 Wis. 139
Decision Date02 December 1941
PartiesMcCLUTCHEY v. MILWAUKEE COUNTY et al.

239 Wis. 139
300 N.W. 917

McCLUTCHEY
v.
MILWAUKEE COUNTY et al.

Supreme Court of Wisconsin.

Dec. 2, 1941.


On Motion for Rehearing.-[By Editorial Staff]

Motion denied.

For former opinion, see 300 N.W. 224.

Padway & Goldberg and David Previant, all of Milwaukee, for appellant.

Herbert J. Steffes, Dist. Atty., O. L. O'Boyle, Corp. Counsel, and C. Stanley Perry, Asst. Corp. Counsel, all of Milwaukee, for respondents.


FOWLER, Justice.

A motion for rehearing is made, based on the contention that the instant case is ruled by Johnson v. Milwaukee County, 147 Wis. 476, 133 N.W. 627. The Johnson case, while cited in the appellant's brief was not referred to in the opinion filed. It was not examined because cited in the synopsis of the brief to the point that the statute of limitations does not bar the action, and that point was not mentioned because the decision was based wholly on the point that the action is not a taxpayer's action.

[1] On the proposition that the action is a taxpayer's action the Johnson case is in direct conflict with the decision of this court in Milwaukee Horse & Cow Comm. v. Mill, 207 Wis. 420, 241 N.W. 364, and should be disregarded for the same reason that the decision in Tyre v. Krug, 159 Wis. 39,149 N.W. 718, L.R.A.1915C, 624, was disregarded in the Horse & Cow Comm. case, viz: that it manifestly is not a taxpayer's action because the taxpayer is not pecuniarily affected and is in no different position from a citizen not a taxpayer. This point was not considered in the Johnson case. The only question there raised by the appellant was that the action was quo warranto, and that was the only question considered by the court. The case of Butler v. Milwaukee, 119 Wis. 526, 97 N.W. 185, considered by the court in the Johnson case as ruling it, was decided on the express ground that the officer involved was expressly exempted from subjection to civil service law by the terms of the statute creating that law. The point of no pecuniary interest was not considered by the court.

It is to be noted that the entertainment of the instant action is contrary to the holding

[300 N.W. 918]

of the court in the later case of State ex rel. Elliott v. Kelly, City Clerk, 154 Wis. 482, 143 N.W. 153. That case involved the payment to an officer of the city of Tomahawk. The city clerk refused to issue a warrant for his monthly salary on the ground, among others, that he was not qualified to hold the office because not a citizen of the state and his election...

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3 practice notes
  • Consolidated Apparel Co. v. Common Council of City of Milwaukee
    • United States
    • United States State Supreme Court of Wisconsin
    • June 6, 1961
    ...ex rel. Dalrymple v. Milwaukee, County, 1883, 58 Wis. 4, 16 N.W. 21, and McClutchey v. Milwaukee County, 1941, 239 Wis. 139, 300 N.W. 224, 300 N.W. 917, 137 A.L.R. In the later case of State v. Donohue, 1960, 11 Wis.2d 517, 523, 105 N.W.2d 844, we held that by statute in Wisconsin prohibiti......
  • McClutchey v. Milwaukee Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 2, 1941
    ...Wis. 139300 N.W. 224McCLUTCHEYv.MILWAUKEE COUNTY et al.Supreme Court of Wisconsin.Oct. 7, 1941.Rehearing Denied Dec. 2, 1941.See 300 N.W. 917. Appeal from a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge. Affirmed. Action by James T. McClutchey, as a taxpayer, ......
  • Kniess v. Am. Sur. Co. of N.Y.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 2, 1941
    ...with our conclusion here. To summarize, the court is of the view: (1) That this is an ordinary performance bond under sec. 289.16, Stats. [300 N.W. 917] (2) That the bond discloses no intent to assume a liability broader than that contemplated by this section. (3) That the contract involved......
3 cases
  • Consolidated Apparel Co. v. Common Council of City of Milwaukee
    • United States
    • United States State Supreme Court of Wisconsin
    • June 6, 1961
    ...ex rel. Dalrymple v. Milwaukee, County, 1883, 58 Wis. 4, 16 N.W. 21, and McClutchey v. Milwaukee County, 1941, 239 Wis. 139, 300 N.W. 224, 300 N.W. 917, 137 A.L.R. In the later case of State v. Donohue, 1960, 11 Wis.2d 517, 523, 105 N.W.2d 844, we held that by statute in Wisconsin prohibiti......
  • McClutchey v. Milwaukee Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 2, 1941
    ...Wis. 139300 N.W. 224McCLUTCHEYv.MILWAUKEE COUNTY et al.Supreme Court of Wisconsin.Oct. 7, 1941.Rehearing Denied Dec. 2, 1941.See 300 N.W. 917. Appeal from a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge. Affirmed. Action by James T. McClutchey, as a taxpayer, ......
  • Kniess v. Am. Sur. Co. of N.Y.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 2, 1941
    ...with our conclusion here. To summarize, the court is of the view: (1) That this is an ordinary performance bond under sec. 289.16, Stats. [300 N.W. 917] (2) That the bond discloses no intent to assume a liability broader than that contemplated by this section. (3) That the contract involved......

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