Kempster v. City of Milwaukee

97 Wis. 343 | Wis. | 1897

MaRshall, J.

The ground of complaint on this appeal is “that the court erroneously directed judgment for plaintiff on the evidence and special verdict, for two reasons: First, because the facts found by the verdict are not sufficient to ■show that plaintiff was eligible to the office when he was appointed; and second, that the salary for the time he was excluded from the office was paid to a de facto officer, Avho performed the duties of the office, and that the city cannot be compelled to pay the same again to plaintiff.

The particular defect in the special verdict pointed out by defendant is that it fails to find that plaintiff was a resident of the city of Milwaukee for one year preceding his appointment; that the finding to the effect that he intended, on or before the first Tuesday of April, 1893, to make the city of Milwaukee his place of residence may be true, and he not have resided there at all, or, if at all, may have changed his residence; that such finding does not meet the ■call of the charter for one year’s continuous residence previous to the appointment.

Some question is raised as to the validity of the charter provision in regard to eligibility to hold office under it, but ■on the record such question does not call for discussion or decision. The word residence as used in the charter does not mean physical location continuously. It is used in the broad sense of domicile requisite to citizenship. For the purposes of such residence there must be an actual location in the place in question, with the intention of making it a permanent home. That is sufficient to meet all the requisites of legal residence at the outset. In one sense a person may have more than one place of residence, but he can have ■only one which has the element of permanency essential in ■a legal sense to his domicile. He can have only one domicile at one time. To constitute that there must be an actual location, with the intent to make such place his home indefinitely. Parsons v. Bangor, 61 Me. 457. To establish the domicile does not require any considerable length of time. Eesidence at a place for any length of time, however short, with the concurring intention of permanently residing at such place, renders such place, in a legal sense, the person’s domicile, and, being once fixed, it will continue till abandoned, without reference to any mere absence for a temporary purpose, with the fixed intention of returning when such purpose shall be accomplished. Kellogg v. Winnebago Co. 42 Wis. 97; Dicey, Domicile, 76; Mechem, Pub. Off. § 159.

Applying the foregoing to the evidence, it is unimportant that the verdict is not full on the subject of legal residence. There is no controversy as to the fact. The only evidence there is on the subject is to the effect that plaintiff went to Milwaukee in the fall of 1890 with the intention of making that his permanent home; that such intention was continuous down to the time of his appointment .to the office of commissioner of health of said city and that he was physically present there during all the time except when absent on business, or otherwise, with the fixed intention pf returning as soon as the purpose of the absence should be accomplished. Obviously that made the city of Milwaukee plaintiff’s domicile and legal residence, continuous from his location there in 1890 down to the time of his appointment. Therefore, there was no question on the subject for the jury.

The doctrine invoked by defendant, that a dejwe officer cannot recover his salary from the municipality on regaining possession of his office, where it has been previously occupied without his consent by a defacto officer to whom the salary has been paid, but that his remedy is against such de facto officer, is sustained by the decided weight of authority, though there is much respectable authority against it. Ward v. Marshall, 96 Cal. 155; Andrews v. Portland, 79 Me. 484. It has never been adopted in this state. The question of whether such doctrine rules this case, however, cannot in any event be reached till the conditions are found to have existed requisite to its application. Here the office of commissioner of health was not filled by a defacto officer while plaintiff was excluded therefrom, so the salary incident ta such, office was not paid to such an officer. The fact that the public authorities created a condition which made it necessary to have the duties belonging- to the office of commissioner of health performed by some one other than the officer contemplated by law, and to meet such necessity the mayor appointed a person to do the work, and designated him acting commissioner of health, by no means made him defacto commissioner of health. There was no such office under the charter of the city of Milwaukee as acting commissioner of health; therefore, obviously, there could be no such defacto officer, and if there were, that was not the office held by the plaintiff. If, by appointment of the mayor and approval of the council, in the manner required by the city charter, the office of commissioner of health had been temporarily filled, then there would have been a de facto officer to receive the salary incident to the office; but the mere designation of a person, without authority of law, to perform the duties of the office, did not make such person an officer defacto, or furnish any justification for payment of the salary incident to the office to such person, that can be pleaded in defense of the claim of the officer de jure, made upon his regaining his office. The simple question here is, Can an officer be wrongfully excluded from his office, and another be employed to perform his duties without appointment or election to the office, such person be compensated for his services out of the public treasury, and, upon the officer so wrongfully excluded being permitted again to resume his duties, such payment be pleaded in defense of such officer’s claim for his salary for the time he was so wrongfully excluded? That must be answered in the negative. At best, such person can be considered but a mere intruder. That was the situation of the acting commissioner of health in this case. The principle of Warden v. Bayfield Co. 87 Wis. 181, applies.

By the Court.— The judgment of the superior court is affirmed.