State ex rel. Elliott v. Kelly

• Decision Date: 07 October 1913
• Citation: 143 N.W. 153,154 Wis. 482
• Parties: STATE EX REL. ELLIOTT v. KELLY, CITY CLERK, ET AL.
• Court: Wisconsin Supreme Court

154 Wis. 482

143 N.W. 153

STATE EX REL. ELLIOTT

v.KELLY, CITY CLERK, ET AL.

Supreme Court of Wisconsin.

Oct. 7, 1913.

Appeal from Circuit Court, Lincoln County; A. H. Reid, Judge.

Mandamus action to compel the proper officers of the city of Tomahawk to issue a municipal warrant to the relator for salary as “Superintendent of Trade and Commerce.” The cause, in due form, was submitted on a record showing the following: The relator, during the term for which he sought to recover compensation, had assumed to hold an official position in the city of Tomahawk, denominated “Superintendent of Trade and Commerce.” He commenced the action to obtain a warrant for his pay after the councilhad, in due form, set aside a fund therefor and directed an order to be issued accordingly. The city clerk, upon due demand, refused to issue the warrant. Existence of the office depended upon whether the following circumstances were efficient therefor: An ordinance was duly proposed to the common council of the city of Tomahawk, creating the office of “Superintendent of Trade and Commerce.” The proposal was accompanied by a request signed by more than twenty-five per cent. of the persons who voted for Governor in the city at the last general election, for submission of the matter to a vote of the electors of the city in case of the ordinance being rejected by the council. It was rejected and, thereupon, a resolution was adopted for such submission and directing the city clerk to cause the proposed ordinance to be published and notice of its submission, as requested, to be given and to prepare for use the proper ballots in respect to the matter.

At the election held pursuant thereto the form of the ballot denominated the office proposed to be established “Office of Chamber of Commerce.” The vote was 170 for the proposed office and 91 against it. The ordinance was duly published naming the office “Superintendent of Trade and Commerce.” July 4th thereafter the council, in form, fixed the salary of the office at $1,800, to be paid in monthly installments of $150. Thereafter the relator was duly appointed to the office and the appointment was approved by the council. He was not a citizen of this state at the time of such appointment. He removed to the city of Tomahawk a few days prior thereto for the purpose of accepting the position if tendered. He duly took possession of the office to which he was appointed and performed its duties during the period covered by the salary claimed. The money was appropriated to pay such salary, the comptroller directed to issue an order therefor, such issuance demanded and the same refused. There was no other claimant of the office during the period in question. Through oversight, the relator did not file his oath of office until after the termination of the period in question.

The trial court decided, among other things, that the relator was, at least, a de facto officer and entitled to a warrant for the salary, since the city council had set aside money to pay the same and directed issuance of a proper order. The discrepancy between the ordinance and ballot respecting the creation of the office was held immaterial, as the voters, doubtless, intended to vote on the question of adopting the ordinance.

G. M. Sheldon, of Tomahawk, for appellants.

J. R. Pfiffner, of Tomahawk, for respondent.

MARSHALL, J.

[1][2] The first question for solution is: Was there a de jure office in the city of Tomahawk, as claimed by the relator? Obviously, if otherwise, there could not be an incumbent, either de jure or de facto, of such place, and a holding of at least the latter dignity would be required in order to entitle the relator, under any circumstances, to compensation for his services.

[3] It does not clearly appear from the name, “Superintendent of Trade and Commerce,” that the duties of the place in question were other than of a municipal character. Possibly, as suggested by counsel for appellants, the purpose in creating the office was to accomplish a laudable though not, really, an authorized public purpose; but any fair indication that the contemplated official duties are substantially within the scope of the granted municipal authority, would preclude holding that the proceedings to establish the office are ultra vires. There seems to be such indication. The general welfare feature of the city charter is very broad. It affords the common council of a city a large measure of power to legislate for the benefit of trade and commerce (section 925--52). The council may also create such minor offices as it may deem necessary (section 925--23), fill such offices and fix the salary incidents. All reasonable presumptions must be indulged in that there was no intention to depart from the scope of the broad powers, conferred as aforesaid, and none in fact. From such premises, it is considered that the municipality possessed power to create such an office as the one in question.

[4] It is considered that the proposed ordinance creating the office of “Superintendent of Trade and Commerce” was duly adopted by referendum to the electors of the city, under chapter 513, Laws of 1911. The fact that the voting was for or against establishing the office of “Chamber of Commerce,” instead of “Superintendent of Trade and Commerce,” is not fatally material. The voters evidently intended to take sides at the polls in respect to the question raised by the proposed ordinance. In voting, as they did, they intended to express their will as to whether such ordinance should be adopted or rejected. They knew what it was for. It had been brought to their attention in the manner provided by law. Now should their decision be held for naught merely because the city clerk failed to furnish ballots stating, literally, the question to be passed upon? It would be contrary to the evident wishes of the people and to the modern trend of judicial thought, to hold that any such accuracy is required. So long as it is reasonably clear that the electors expressed their will respecting the adoption of the ordinance, the fact that they did it somewhat inartificially should not be regarded as rendering their efforts inefficient. The statute requires the ballot in such a case to contain “a concisestatement of the nature” of the ordinance. Any brief...