In re Aldrich

114 Wis. 308 | Wis. | 1902

WiNslow, J.

On tbe 9th day of May, 1901, the appellant, Aldrich, a resident of Milwaukee, filed his petition in the circuit court for Milwaukee county, charging malfeasance in office by the respondent, ’Ringenoldus, then and now the duly elected clerk of said court, and praying his removal from such office. The respondent made answer to the petition, denying all of the misconduct alleged, and the matter was heard upon oral testimony by the two circuit judges, Hon. Eugeue S. Elliott (now deceased), and Hon. LaweeNCE W. Halsey, sitting together. At the close of the testimony the said judges joined in an opinion which partakes of the nature of a finding, by which they concluded that there had been no intentional or obvious dereliction in duty on the part of the respondent, and that, if there had been any erroneous action on his part in the particulars charged, it was the result of honest mistake. Thereupon the two judges entered judgment, which in form is a judgment by the court denying the petition and dismissing the proceedings, and from this judgment the petitioner has appealed.

The proceeding was brought under sec. 973, Stats. 1898, which provides that the judge of the circuit court may either in term time or vacation, by order specifying the cause therefor, remove the^ clerk of the circuit court of any county within his circuit for certain specified causes, among which is official misconduct. Although the proceeding was conducted below as though it were a proceeding in court, and the judgment was entered as a judgment of the court, it may be very doubtful whether in fact it is a proceeding in court at all. The statute provides that the judge of the circuit court may malee the removal, and the argument is that the law constitutes the judge a special tribunal to pass upon the question; that no appeal from his decision has been provided by the statute; and that the general statute providing for and regulating appeals from orders made by the court (sec. 3069, Stats. 1898), has no application. This question is not without its difficulties, but we have found it unnecessary to decide it. Conceding the order in tbis case to- be an order made by tbe court, it was an order made in a special proceeding, and can only be ap-pealable under subd. 2 of sec. 3069, supra, wbicb allows an appeal from “a final order affecting a substantial right made in special proceedings.” Under tbis it is self-evident that tbe order must affect a substantial right of tbe party claiming tbe figlit to appeal. Were tbe case here on appeal by tbe clerk f rom an order of removal, it might well be argued that tbe order bad affected a substantial right of the clerk, because it bad deprived him of a valuable office; but in what respect can it be said that any substantial right of tbe appellant has been affected by tbe order refusing to- remove tbe clerk? Tbe order deprives the appellant of nothing. It takes no money from tbe municipal corporation of wbicb tbe appellant is a member, nor does it in any way affect corporate property; and, even if it did accomplish either of these last-named results, tbe appellant is not in position to complain, because be is not shown to be a taxpayer in that corporation. It is true, he bad set in motion tbe investigation, and doubtless be felt great personal interest in it; but be has no more real interest in tbe result of tbe investigation than any other citizen of tbe community has, namely, tbe general interest wbicb every good citizen feels in tbe proper transaction of public business by public officers. He was no more aggrieved in the eye of tbe law by tbe vindication of the clerk from tbe charge made than be would have been by bis conviction and dismissal bad such been tbe outcome of tbe inquiry. Neither result would deprive him of a dollar of money or affect any right wbicb can be called substantial.

By the Court. — Appeal dismissed.