State ex rel. Kempster v. Common Council of City of Milwaukee

• Decision Date: 20 June 1895
• Citation: 63 N.W. 751,90 Wis. 487
• Parties: STATE EX REL. KEMPSTER v. COMMON COUNCIL OF CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

90 Wis. 487

63 N.W. 751

STATE EX REL. KEMPSTER

v.COMMON COUNCIL OF CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

June 20, 1895.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Certiorari, on the relation of one Kempster, against the common council of the city of Milwaukee, impleaded with the city clerk. Appeal by the common council. Dismissed.C. H. Hamilton, for appellant.

Quarles, Spence & Quarles and V. W. Seely, for respondent.

WINSLOW, J.

The relator was the duly-appointed health commissioner of the city of Milwaukee. Upon charges of misconduct in office preferred by private citizens, the common council of said city, after a hearing upon such charges had been had before a committee of the council, passed a resolution declaring that certain of said charges were sustained by the evidence, and that the said Kempster be dismissed from office. Thereupon the relator sued out a writ of certiorari from the circuit court of Milwaukee county, directed to the common council of the city and the city clerk, to review said proceedings and reverse the same for alleged errors. The common council appeared in the circuit court, and moved to supersede and vacate the writ, which motion was, upon hearing, denied, and the common council appealed to this court. Motion is now made by the relator to dismiss the appeal on the ground that the common council has no legal right to appeal. The motion is well founded, and must be granted. The common council is not a party to the proceedings for removal, nor to the action of certiorari, and cannot therefore appeal. McCarty v. Supervisors, 61 Wis. 1, 20 N. W. 654. Appeal dismissed.