147 Wis. 476 | Wis. | 1911
Tbe resolution adopting cb. 297, Laws of 1907, was passed by tbe common council of tbe city of Milwaukee on tbe day upon wbicb it was introduced and at tbe same meeting, and without reference to any committee.
Sec. 5 of cb. IV of tbe charter of tbe city of Milwaukee provides that:
“All resolutions appropriating money, or creating any charge against any of the funds of said city or wards, and all accounts and ordinances, shall be referred to appropriate committees and shall only be acted on by tbe common council at a subsequent meeting not held on tbe same day, on tbe report of tbe committee to which tbe same were referred.”
Tbe trial court held that, inasmuch as cb. 297, Laws of 1907, created a number of salaried offices not before in existence, its adoption created a “charge” against tbe funds of tbe city and that tbe charter provisions should have been followed in passing tbe resolution adopting tbe law, and, not having been followed, it was never legally adopted, and tbe offices provided for therein were never lawfully created.
We cannot adopt tbe view of tbe law taken by tbe learned circuit court. Ob. 297, Laws of 1907, is an option law pure and simple. Tbe right of tbe legislature to pass such a law is settled beyond controversy in this state. Tbe right of tbe legislature to pass any constitutional law amending tbe charter of cities of tbe first class is of course conceded. Tbe legislature might have passed tbe law without tbe option feature and it might have provided that tbe act should not become operative until tbe electors voted to adopt tbe same, or until a maj ority or some maj or fraction of a maj ority of tbe common council so voted, or until tbe mayor and common council so voted. Tbe act itself we think quite plainly prescribes what should be done. It provides:
“Sec. 20. This act shall take effect and be in force from and after tbe first day of January, 1908, provided that before this act shall be in effect in any city to wbicb it applies, it*481 must first Rave been approved by a majority vote of tRe members elect of tRe common council of sucR city.”
TRe only prerequisite to its adoption was tRat it sRould receive tRe approval of a majority of tRe common council elect, and it did receive sucR approval. TRat tRis law did not contemplate tRat tRe passage of tRe resolution adopting it sRould be governed by tRe procedure prescribed for adopting resolutions under tRe city cRarter is quite manifest. SucR resolutions must be signed by tRe mayor, or, if vetoed by Rim, must be passed over Ris veto, if at all, by a two-tRirds vote of all tRe members elect. Sec. 7, cR. IV, Milwaukee CRarter. ISTow tRe law of 1907 does not provide for any consent by tRe mayor, and it was wholly immaterial whether Re gave Ris consent to tRe resolution adopted or not. Any other conclusion would lead to this anomalous and incongruous situation: the resolution might Rave been adopted by the council and vetoed by the mayor and Rave failed to receive the necessary two-thirds vote to pass it over Ris veto, although a majority of the members of the council so voted. If respondent’s contention is correct the law would not be adopted, because the resolution for adoption could not be passed under the cRar-ter provisions, though by its very terms the law was to become operative if approved by a majority vote of the members elect of the common council. We conclude that the law was legally adopted and that the offices therein provided for were legally created. It is therefore unnecessary to consider the effect of cR. 352, Laws of 1911 (sec. 926 — 175, Stats.), which was designed to cure any defect or informality inherent in the attempted adoption of the act of 1907.
TRe trial court further Reid that the appellant Mullen was appointed by the commissioner of public works in violation of the civil service law applicable to the city of Milwaukee. Appellants contend that the court was in error because the office or place to which Mullen was appointed was exempt from the operation of the civil service law, and because a court of
Neither do we think that the commissioner of public works is required to give a bond for the faitRful discRarge of their duties by the superintendents whom Re appoints. TRe law
However, it is strenuously argued by counsel for appellants that in reality the action is one to try title to office, and that an action at law in the nature of a quo warranto is not only the appropriate bnt is the exclusive remedy to secure the relief here sought. Many cases are cited which hold that equity will Hot take jurisdiction of a proceeding to try title to office, and, generally speaking, that it will not enjoin the payment of the salary of a de facto officer because such a suit would involve the title to the office. The question raised is one that was necessarily passed on in Butter v. Milwaukee, 119 Wis. 526, 97 N. W. 185, although it was not discussed. There the court took jurisdiction of just such an action as is here brought, and affirmed the judgment on the merits. Counsel may be justified in believing that the question was not considered because not discussed, and that if such was the case the decision should not carry any great weight as a precedent. Still, wre think it carries to a legitimate conclusion a principle that is well established by the decisions of
By the Court. — Order affirmed.