State ex rel. Burdick v. Tyrrell

• Decision Date: 27 October 1914
• Citation: 149 N.W. 280,158 Wis. 425
• Parties: STATE EX REL. BURDICK v. TYRRELL.
• Court: Wisconsin Supreme Court

158 Wis. 425

149 N.W. 280

STATE EX REL. BURDICK

v.TYRRELL.

Supreme Court of Wisconsin.

Oct. 27, 1914.

Appeal from Circuit Court, Walworth County; George Grimm, Judge.

Action by the State, on relation of H. A. Burdick, against F. J. Tyrrell. Judgment for relator, and defendant appeals. Affirmed.

This is an action to try the title to the office of the city attorney of the city of Lake Geneva. The relator claims that he was elected to the office April 23, 1912, and the defendant claims that he was elected July 16, 1912. The common council of Lake Geneva consists of the mayor and six aldermen. The proceedings of the council out of which the controversy arose are as follows:

“April 23, 1912.

Pursuant to adjournment of April 16, 1912, the common council of the city of Lake Geneva, Wis., met in the council chambers of said city, April 23, 1912, at eight o'clock p. m.

Present: Mayor Augesky, Aldermen Nichols, Powers, Briegel, Agern, Flemming and Kroll.

Your committee on rules respectfully recommends the following:

1. Roll call at eight o'clock sharp.

2. Reading of minutes.

3. Election of officers in the following order:

Board of health and its physician, chief of police, night police, street commissioner, city attorney.

Alderman Nichols moved that in the election of officers same be by ballot, the first ballot to be an informal ballot. Motion seconded by Alderman Agern and carried.

Informal ballot for city attorney resulted as follows: Six votes cast, H. A. Burdick received three, L. G. Brown one, F. J. Tyrrell one, one blank.

First formal ballot resulted as follows: Six votes cast, H. A. Burdick received three, L. G. Brown one, F. J. Tyrrell one, one blank.

Second formal ballot, six votes cast of which H. A. Burdick received three, L. G. Brown one, F. J. Tyrrell one, and one blank.

Third formal ballot, six votes cast of which H. A. Burdick received two, L. G. Brown three, blank one.

Fourth formal ballot, six votes cast of which H. A. Burdick received three, L. G. Brown, two, one blank.

Alderman Nichols moved that the election of city attorney be deferred to the next regular meeting. Motion seconded by Alderman Briegel and carried.”

“May 7, 1912.

A regular meeting of the common council of the city of Lake Geneva, Wis., was held in the council chambers of said city May 7, 1912, at eight o'clock p. m.

Present: Mayor Augesky, Aldermen Nichols, Powers, Briegel, Agern, Flemming and Kroll.

Alderman Briegel moved the following corrections of the minutes: ‘That in the election of a city attorney, all ballots after the first formal ballot be stricken off the records.’ Motion was seconded by Alderman Nichols.

Alderman Nichols moved as an amendment ‘That the minutes be declared correct as read.’ Motion as amended was seconded by Alderman Kroll. Roll call on the amendment resulted as follows: Ayes, Aldermen Nichols, Powers, Kroll; Nays, Aldermen Briegel, Agern and Flemming.

Mayor declared amendment lost.

Roll call on original motion resulted as follows: Ayes, Aldermen Briegel, Agern and Flemming; Nays, Nichols, Powers, Kroll.

Mayor declared the motion lost.

Alderman Nichols moved that the rules be suspended and communication from L. G. Brown read. Motion was seconded by Alderman Agern and carried.

The resignation of L. G. Brown as city attorney was then read.

Alderman Kroll moved that the resignation be accepted as read. Seconded by Alderman Powers and carried.

Alderman Powers moved that the services of a city attorney be dispensed with for six months. Seconded by Alderman Kroll. A tie vote resulting, the mayor declared the motion carried.”

“July 16, 1912.

A regular meeting of the common council of the city of Lake Geneva, Wis., was held in the chambers of said city at 8 o'clock p. m. July 16, 1912.

Present: Mayor Augesky, Aldermen Nichols, Powers, Briegel, Agern, Flemming and Kroll.

Alderman Kroll moved the members of the common council to rescind and reconsider the action theretofore taken for the election or appointment of a city attorney. Seconded by Alderman Briegel. Carried.

Alderman Briegel moved that we proceed by ballot to elect a city attorney, first ballot to be informal. Seconded by Alderman Agern. Carried.

Result of informal ballot; H. A. Burdick 3; F. J. Tyrrell 3.

Result of the formal ballot; H. A. Burdick 3; F. J. Tyrrell 3.

The result being a tie vote, the mayor cast ballot declaring F. J. Tyrrell duly elected to the office of city attorney.”

The city of Lake Geneva operated under a special charter (chapter 322, Laws of 1885) until May, 1909, when it adopted the general charter law. Section 1 of the special charter named the elective officers of the city, and provided that all other officers, which included the city attorney, should be appointed by the common council. Section 7 provided that the common council might at its first meeting elect a city attorney to conduct the law business of the corporation, or omit such election, and when necessary provide or employ such attorney or counsel as it might desire, and further provided the duties of the city attorney.

The case was tried on stipulated facts, which show the proceedings heretofore recited, and also additional facts, among others that on May 3, 1912, the relator filed his oath of office, and that on July 17, 1912, the defendant filed his oath of office, and that the relator since the filing of his oath of office has been able, ready, and willing to perform the duties of said office, and that no protest or objection was made by the relator personally to the common council because of proceedings had before it, but that the relator was not present at any of the meetings of the common council; that the office of the city attorney carried no salary, said attorney being paid reasonable compensation for services rendered; that no certificate of election was ever issued to the relator or defendant. The court below held that the relator was duly elected city attorney and entitled to the office, and judgment was rendered accordingly, from which this appeal was taken.

Thompson, Myers & Kearney, of Racine (Thomas M. Kearney, of Racine, of counsel), for appellant.

Wallace Ingalls, of Racine, and D. B. Barnes, of Los Angeles, Cal., for respondent.

KERWIN, J. (after stating the facts as above).

At the time of the alleged election of the relator the city of Lake Geneva was operating under the general charter, but under its provisions the election of officers was continued in the manner provided by the special charter. The provisions of the general charter which in any way relate to the matter under consideration are as follows:

“City Officers; Methods of Choosing. Section 925--25. 1. The mayor, treasurer, comptroller, aldermen, justices of the peace and supervisors shall be elected by the people. The other officers shall be elected or otherwise selected as provided by ordinance approved by the electors of the city; provided, that in case any such officer, except policemen, shall be appointed by the mayor, such appointment shall be subject to confirmation by the council. In cities where the clerk performs the duties of comptroller, the clerk shall be elected by the people.

Methods under General Charter. 2. In all cities operating under the general law, officers, except as herein specified, shall continue to be elected or appointed in the manner now provided by law. In cities adopting the general law all officers shall continue to be elected or appointed in the manner prevailing in such cities at the time of the adoption of the general law, until changed in the manner herein provided, except as herein otherwise provided.

Terms. Section 925--26. All officers shall hold their offices respectively for the term of one year, except justices of the peace and aldermen, who shall hold for two years and until their successors are qualified, unless the council shall, by ordinance, provide a longer term for said officers or any of them, or unless a different term of office is expressly provided in this charter; provided, that this section shall not extend the terms of any city officers beyond the terms for which they were originally elected or appointed. The common council may provide that the terms of the aldermen first elected after the adoption of this provision shall expire in different years, and thereafter part of the aldermen shall be elected each year and hold for the full term.”

Section 925--34 provides that every person elected or appointed to any office shall, before he enters upon the discharge of his duties, take and subscribe the constitutional oath of office and file the same with the city clerk within ten days after notice of his election or appointment.

Section 925--49 provides that the mayor and aldermen shall constitute the common council, and that whenever a majority or certain proportion of the members of the council is required to take action or form a quorum, the mayor...