State ex rel. Bloomer v. Canavan

• Decision Date: 13 January 1914
• Citation: 145 N.W. 44,155 Wis. 398
• Parties: STATE EX REL. BLOOMER v. CANAVAN ET AL.
• Court: Wisconsin Supreme Court

155 Wis. 398

145 N.W. 44

STATE EX REL. BLOOMER

v.CANAVAN ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1914.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Certiorari by the State, on the relation of William Bloomer, against J. V. Canavan and others, as Police and Fire Commissioners of the City of Appleton. Judgment for relator, and respondents appeals. Reversed and remanded.Henry D. Ryan, of Appleton, for appellants.

J. Elmer Lehr and Horace B. Walmsley, both of Milwaukee, for respondent.

BARNES, J.

Acting under chapter 448, Laws of 1909, the city of Appleton adopted the commission form of government. The reorganization was perfected on April 19, 1911. Chapter 448, Laws of 1909, was amended by chapter 387, Laws of 1911, which act became effective on June 19, 1911. On December 20, 1911, the chief of police suspended the relator, a police patrolman, for drunkenness and other misconduct, and reported such action to the mayor. On January 3, 1912, the mayor appointed four persons as members of the board of police and fire commissioners of the city to serve until the first Monday in May following, which appointments were confirmed. The council selected the mayor to act as a fifth member of the commission. These appointees took the necessary steps to qualify. On January 15, 1912, the relator demanded an immediate hearing on the charges preferred against him. Such hearing was held on January 20th before the commission constituted as indicated, the relator appearing in person and by counsel, and offering such evidence as he desired to submit. The commissioners found that the charges were sustained, and removed the relator, who thereupon sued out a writ of certiorari to review the action of the board in making the removal.

In the petition for the writ it was set forth that the board was without power, jurisdiction, or authority to act in the matter, and that its action was a nullity because the board of police and fire commissioners in office prior to April 19, 1911, continued in office thereafter, and such board was the only lawful one in existence on January 20, 1912. The term of office of but one member of the old board had expired at this time unless the entire board had been legislated out of office by reason of the change to the commission form of government. It was also alleged in the petition for the writ that chapter 448, Laws of 1909, and chapter 387, Laws of 1911, were violative of several provisions of our Constitution, and therefore void, and that the members of the so-called board were neither de facto nor de jure officers and their act in removing the relator was a nullity.

On the part of the defendants and appellants it is urged: (1) That the old board of police and fire commissioners ceased to exist for all purposes when the reorganization was effected on April 19th; (2) that it was the duty of the mayor to appoint four members of a new board by virtue of chapter 387, Laws of 1911, and of the council to select one of their number to constitute a fifth member of such board; (3) that in any event the persons who acted on the board when the relator was removed were de facto officers, and their acts were therefore valid; (4) that the acts of the board were legalized by chapter 488, Laws of 1913; and (5) that the Laws of 1909 and 1911 referred to are constitutional and valid.

The circuit court held: (1) That the acts in question were constitutional; (2) that the old board continued in office after the reorganization; and (3) that, whether it did or not, the mayor had no authority to appoint new members of the board at the time when he did, and that the proceedings of the board in so far as they affected the relator were void.

In support of the judgment, the respondent urges in this court that the board which removed the relator was an unlawful body, that the members of the board were not de facto officers, and that the statutes of 1909 and 1911 are void: (a) Because they attempt to delegate legislative power; (b) because the classification of cities attempted to be made is not a legitimate one; (c) because the acts prescribe unconstitutional qualifications for officers; and (d) because they arbitrarily exclude certain citizens from the privilege of holding office altogether.

[1] 1. Section 959--40 provides for a board of police and fire commissioners in all cities of the second and third classes and for the manner in which the commissioners shall be appointed, and the succeeding sections define the rights, powers, and duties of such board. Its powers over the police and fire departments are broad.

Chapter 448, Laws of 1909, provided a radically different scheme for the government of our cities from that found in our general charter law or in our special charters. The new scheme comprehended the wiping out of most of the existing offices and of placing the full power to govern and run the affairs of a city in the hands of three men. They might employ such help as they needed, but the responsibility for the city government was placed on their shoulders. If their administration was successful, the credit belonged to them, and if it was not, there was no chance to shift the blame, because there was no divided responsibility. This legislative idea is quite apparent from the whole act, and finds definite expression in section 925m--308, 1, which reads: “A city so reorganized shall be governed by its council, consisting of the mayor and councilmen elected as hereinbefore provided, and such council shall have all the powers and perform the duties had and exercised by the mayor and council and the several administrative and executive officers, boards, and commissions of such city, whether its former organization existed under general or special law.” By virtue of this provision all of the powers and duties formerly exercised by the board of police and fire commissioners of the city of Appleton were taken away and transferred to the new council. There was no further duty or function which the old board could perform. This being so, we think it was clearly the intention of the Legislature that it should be wiped out. As a positive or even a negative force in the government of the city it was neither useful nor ornamental, and we do not think it was contemplated that it should be carried along as a useless appendage. The statute cited was inconsistent with section 959--40 and succeeding sections, and therefore the existing board was not saved or continued in office by subdivision 1 of section 925m--303, being part of chapter 448, Laws of 1909. Assuming for the present that the law of 1909 was valid, we think the old fire and police board ceased to exist on and after April 19, 1911.

The 1911 Legislature proceeded to ingraft some of the old system of city government on the new. It repealed section 925m--308 in its entirety, and enacted a new section in its stead. By the amendment all the powers and duties conferred on the mayor and common council of a city were, in case of a change, conferred and imposed on the mayor and councilmen of the new organization. However, it was provided by the new act that: “All boards and commissions created and existing under laws heretofore in force in any city shall continue to exist, and all powers, authority, jurisdiction and duties conferred and imposed upon such boards and commissions shall remain unaffected by this act, except that the mayor shall not be ex officio a member of any such board or commission.” The effect of this act in the instant case was to create a fire and police board in the city of Appleton, which board should have all the powers and perform all the duties conferred or imposed by the charter of the city prior to the adoption of the commission form of government. This amendment became effective two months after the reorganization, and did not serve to reinstate in office those who had been legislated out by reason of the adoption of chapter 448, Laws of 1909.

[2][3] By section 959--40, which became applicable to the city of Appleton by virtue of the 1911 amendment, the mayor was required to appoint annually, between the last Monday in April and the first Monday in May, one member of the board of fire and police commissioners for the term of five years, or until his successor was appointed and qualified. It is insisted that the mayor had no lawful authority to appoint four members of the board when he did, nor for the time for which they were appointed. As to the member of the board who was to be selected by the mayor and council from their membership, the Statutes (subdivision 6 of section 925m--308) required...