223 Wis. 605 | Wis. | 1937
Lead Opinion
The following opinion was filed December 8, 1936 :
The action was brought in the circuit court for Milwaukee county by James William McCarthy for a mandatory injunction directing the chief engineer of the fire department of the city of Milwaukee, and the board of fire and police commissioners of the city (hereinafter referred to as the “chief” and the “board,” respectively) to permit him to withdraw an application theretofore made by him for retirement on pension upon his completion of the requisite term of service for retirement, and to reinstate him to the position of assistant chief engineer of the fire department of the city which he occupied at the time of the filing of the application. The chief threatened that if he did not so retire he would demote the plaintiff from that position to the position of cap
“1. The defense set forth in paragraph 8 of title I of the defendants’ answer reading as follows :
“ ‘Answering paragraph 17 of the complaint, deny that defendant Peter J. Steinkellner had no power to demote plaintiff without preferring charges against him and without trial.’
“2. The defense set forth in paragraph 9 of title I of defendants’ answer reading as follows:
“ ‘Answering paragraph 23, of the complaint, deny the defendant Peter J. Steinkellner had no right or authority, as alleged or otherwise, to demote plaintiff.’
“3. The defense set forth in paragraph 10 of title I of defendants’ answer reading as follows :
“ ‘Answering paragraph 24 of the complaint, deny that the threatened demotion of plaintiff by defendant Peter J. Stein-kellner was an arbitrary, unlawful, illegal, unwarranted and unjustifiable action, or otherwise, on the part of said defendants.’
“4. The defense set forth in paragraph 2 of title IV of defendants’ answer reading as follows :
“ ‘Alleges that by virtue of the conduct of the plaintiff, as alleged in his complaint and in this answer, is and was such as to make him guilty of laches.’ ”
Although the defendants do not present it, we are met at the outset with the proposition that a demurrer does not lie to separate portions of an answer or complaint. A pleading cannot thus be attacked piecemeal. Obviously, if it could be, no complaint or answer could withstand attack for insuffi
The plaintiff urges that a demurrer lies to separate defenses set up by answer. This is correct. But before a demurrer can be interposed to a portion of an answer, that portion must be set up as a separate defense. The portions of the answer' demurred to are not so set up in the answer before us. Before one can demur to portions of an answer which might be set up as a separate defense but which are not so set up, he must move to have the separate defenses so set up. Danielson v. Garage Equipment Mfg. Co. 151 Wis. 492, 139 N. W. 443; Gilbert v. Hoard, 201 Wis. 572, 230 N. W. 720.
The plaintiff claims that his demurrers meet the requirement of the court rule, sec. 263.17, Stats., which provides that the plaintiff may “demur to the answer or any alleged defense therein when it does not state a defense.” The trouble is the portions of the answer demurred to are not alleged as defenses. Three of them are merely denials of portions of the complaint, and a denial is not a subject of demurrer. 49 C. J. p. 400, § 507, and cases cited in note 57. The fourth is aimed at a conclusion of law, incorporated in an alleged separate defense to the effect that the allegations of the complaint and answer make the plaintiff guilty of laches; and conclusions of law are not subjects of demurrer.
It follows that the demurrers were properly overruled. However, owing to the form of the order appealed from, this does not determine that the ruling of the court was in all respects proper. The order is as follows :
“It is ordered that said demurrer be and the same hereby is overruled and that the defendants have judgment thereon, but with leave to the plaintiff to serve an amended complaint within twenty days,” etc.
The power of the chief and of the board as well as the rights of all those in the service of the department, whether
The tenure of members of the department is fixed by sub. 9 of the amended act. “All members” of the department “shall continue to hold their respective positions and employments at the pleasure of” the chief, “subject to trial” as in the act provided. Other subsections of the act provide as follows: 11. No member of the department shall be discharged or suspended for more than thirty days by the chief except for cause and after trial as provided in the act. 12. When complaint is made to the chief he shall immediately communicate the same to the board and a trial shall be ordered by the board. 13. When the chief discharges or suspends a member for more than thirty days, he shall immediately report the same to the secretary of the board, together with a complaint setting forth his reasons for his action, and the member may appeal from the chief’s order to the board by filing with the board a notice of appeal. 14. On a member’s appeal the board shall serve the member with a copy of the complaint and a notice of the time of trial. 16. On the trial witnesses shall be put under oath. The trial shall be public. The accused shall have full opportunity to be heard in his defense, may have witnesses subpoenaed at the expense of the city and may appear in person or by attorney; all evidence taken shall be taken by a sworn stenographic reporter. 17. The board shall by a vote of a majority determine whether the charges are sustained by a preponderance of the evidence. If the board finds the charges are so sustained they shall determine whether the good of the service requires that the accused shall be permanently discharged, or suspended without pay for a period not exceeding sixty days or reduced in rank. If the board does not find the charges sustained, the accused shall be immediately “reinstated in his former position, without prejudice.”
The powers of the chief besides those above enumerated are defined by the act as follows: 8. Whenever a vacancy shall exist in the office of first assistant engineer (the office which the plaintiff held) the chief shall nominate and with the approval of the board shall appoint a suitable person for such office, “subject to suspension and removal” as provided by the act. By sub. 23 of the act he is declared to be “the head” of the department, and is given power to regulate the department and prescribe rules for the government of its members.
This we believe covers all provisions of the act that bear in any way on the question before us. The three provisions bearing most directly upon the question are those of sub. 9 that all members shall continue to hold their respective positions and employments at the pleasure of the chief “subject to trial hereinafter provided for," that of sub. 8 that when an assistant chief is appointed he is “subject to suspension and removal as hereinafter provided,” and that of sub. 17 that the board may “reduce in rank” which is the only provision in the act respecting demotion of an officer. When an assistant chief is “reduced in rank” he is demoted, and when he is demoted he is removed from his position. This would seem to be self-evident and not to require argument or citation of authority to support it. However, People v. Board of Education, 78 App. Div. 501, 79 N. Y. Supp. 624; Ibid. 174 N. Y. 169, 66 N. E. 674; and Kennedy v. Board of Education, 82 Cal. 483, 22 Pac. 1042, expressly so hold. The pro
It appears from the complaint that ever since the act was passed the chief has exercised the power to demote officers, and has claimed that power as of right. This under the rule respecting practical construction by the officers intrusted with the enforcement of a statute may be taken as an indication of intent on the part of the legislature, that the power to demote officers temporarily, that is until such time as the officer could procure a decision of the board upon a trial of preferred charges, remained with the chief. Before the act was passed he could demote at his pleasure. But thereafter he could only demote at his pleasure, subject to permanent demotion in the manner provided by the act, and the act provided for permanent demotion only by the board after trial. If the act were to be construed strictly, the chief could not demote even temporarily. The statute well warrants, and but for the practical
We are not unmindful that the decision of the trial court went upon the view that before enactment of the 1911 act officers of the defendant held their positions subject to the pleasure of the chief, which gave him absolute power both of discharge and demotion, and the chief, after passage of the act, retained all powers that were not taken away from him by the act. Nor are we unmindful of the argument in support of this view that the defeat of bills in the legislature both
It is urged by respondents that the power of permanent demotion by the chief is essential to the exercise of the power to regulate the department conferred by sub. 23 of the act and to the discipline of its officers. Whether it is so necessary was for the legislature to determine, and the act clearly indicates that the legislature determined otherwise. The act expressly provides for permanent demotion by the board when such demotion is deemed by the board for the good of the service. That is the only permanent demotion permitted by the act. Temporary demotion by the chief is only permissible upon the theory that the chief retains such powers as he possessed before the act was passed that are not taken away by express provisions of the act.
In the recent case of Logan v. Two Rivers, 222 Wis. 89, 267 N. W. 36, it was held that an officer discharged by a city manager who was without power to discharge him was entitled to restoration of his office. It is there said : “If in con
It was recently held in Horlick v. Swoboda, 221 Wis. 373, 267 N. W. 38, that the firemen’s pension board of the city of Racine, which had charge of the administration of the firemen’s pension fund of the city could not lawfully retire officers in the fire department competent to continue in service and who desired to do so, although they had served long enough to entitle them to retire from service and receive a pension. With equal, if not greater reason, the defendant chief could not lawfully compel the plaintiff to retire on pension against his will by threats of demotion, much less by threats of unlawful demotion, in case he did not apply for retirement.
As the decision of the case turns on the interpretation of our own statutory provisions, decisions of other courts are not authoritative or helpful. Elowever, the case of Bryan v. Landis, 106 Fla. 19, 142 So. 650, 651, is quite similar in its facts and the statutes involved. A chief of police was removed from office because he refused on request “to be demoted by resigning . . . and accepting appointment as chief of detectives.” The city charter involved gave to the city manager the power “to suspend the chief of police” for certain specified causes or “for any other just and reasonable cause.” It required the manager on removal of the chief to certify the fact and the cause therefor to the police commission, who were required to “proceed to hear such charge and render judgment thereon.” Removals by appointing officers, and the manager had the power of appointment, were prohibited except as by the charter provided. The removal by
We are also required in passing on the sufficiency of the complaint to determine whether it states facts sufficient to excuse the plaintiff from the application to retire and receive a pension which the complaint states he made and states was accepted. The plaintiff alleges that the application was made because of a demand of the chief that he have his application for retirement on file by June 1, 1936, and because of the threat of the chief that if he did not the chief would demote him from his position of assistant chief to that of captain. That on retirement as assistant chief his pension would be one half his salary of $270 per month, while if he was demoted to the rank of captain his pension on retirement would be'based upon a captain’s salary of $210' per month. That the plaintiff desired to remain in his position of assistant chief, and that by experiencé, age, health, strength, habits, character, and ability was competent and qualiñéd so to remain. That on the chief making said threat he requested the chief to discharge him and file charges so that he might have a hearing before the board, but the request was refused. That at the time he filed the application he knew the chief had theretofore exercised the power of demotion and he believed that the chief had such power and believed that the chief would carry out his said threat if he did not retire, and so believing was coerced against his will into filing said application. That he was soon thereafter informed by counsel that the chief did not possess any power of demotion. That on being so informed the plaintiff in writing applied on June 4, 1936, to the chief and to the board for permission to withdraw his application, and asked to be reinstated to his position
We consider that these allegations bring the complaint within the rule respecting duress of municipal officers protected by tenure of office provisions recently enunciated in the cases of Schuh v. Waukesha, 220 Wis. 600, 265 N. W. 699; Van Gilder v. Madison, 222 Wis. 58, 267 N. W. 25, 268 N. W. 108, wherein the court relieved members of the police departments of the defendant cities from their agreements to waive portions of their salaries under threat of discharge if they did not do so. An officer is as much entitled to protection against salary reduction by unlawful demotion by his chief as by unlawful attempts at reduction by other city officials, and as much entitled to restoration of other rights unlawfully attempted to be taken from him as to restoration of salary, even though through duress he for a short time submitted to those attempts.
We are of opinion that the complaint states a cause of action. The portion of the order appealed from directing dismissal of the complaint unless the plaintiff should amend is therefore erroneous, and must be reversed. (
By the Court. — The portion of the order overruling the demurrers is sustained and the portion directing entry of judgment of dismissal if the plaintiff did not amend his complaint is reversed, and the record is remanded with direction to proceed to determination of the issues raised by the complaint and answer.
Dissenting Opinion
{dissenting). I am of the opinion that the trial court reached the correct result, and I base my dissent from the decision overruling the order on the proposition that the law clearly fixes the power of demotion in the chief.
Some time prior to 1911, a division of opinion developed as to the wisdom of reposing completely unrestricted disciplinary power in these officers. On the one side were arrayed those who were of the opinion that the power was too great. On the other were those whose opinion was that the wiser course was to retain in the chief these methods of maintaining discipline. The latter believed that this so-called autocratic power would not be abused by a chief whose sole ambition should be and doubtless would be to have at the service of the people a department developed to its highest efficiency, and that the powers of discharge, of reducing in rank, of suspension, and of requiring forfeiture of pay would tend to keep a balance between loyalty, merit, and ability and the rewards thereof. This division of opinion found its way as is usual in a democracy into the legislature. Proposed legislation was introduced before the amendment now under discussion was adopted. These preliminary efforts, taken together
For the purposes of this dissent, the only proposed legislation, prior to 1911, to which I will call attention, other than to state that a similar effort was made in 1907, is that disclosed in Bill No. 58, S., introduced in the session of 1909. The bill as introduced (it encountered some opposition) was referred to the usual committees, and finally came before the legislature as Substitute Amendment No. 1, S., to Bill No. 58, S', section 1 of which read as follows :
“In all cities of the first class within this state having a board of police and fire commissioners, no member of the police force or fire department shall be discharged, suspended for a term exceeding thirty days, or reduced in rank by the chief of either of said departments except for cause and after trial as herein provided.”
Section 7 read:
“Any member of either department discharged, suspended for a period exceeding thirty days or reduced in rank by the chief, may within ten days after the order hereinbefore provided is filed with the clerk of the circuit court of said county, bring an action in the circuit court of the county in which said city is located to review said order; . . . ”
This bill passed both the senate and the assembly and was returned, without approval, by the governor. In the veto message, it was said:
“This act provides, in substance, ... no member of the police or fire department shall be discharged, suspended for a term of thirty days, or reduced in rank by the chief of either of said departments except for cause after trial.”
The veto was sustained. In 1911, the same senator who introduced Bill No. 58, S., in 1909 was the author of Bill No. 30, S., which became ch. 586, Laws of 1911, now before
At sessions of the legislature subsequent to 1911, at different times, those adhering to the opinion that disciplinary measures ought to be subject to the right of trial based on charges filed, sought to amend ch. 586, Laws of 1911. In 1923, for instance, there appeared Bill No. 429, A., wffiich was a proposed amendment, containing a section reading:
“No member of the police or fire department shall be discharged, reduced in rank, or suspended . . . except for cause and after trial as herein provided.”
This bill was defeated. The only change sought to be made by that bill was the one of writing into the law the words “re
“11. No member of the police force or fire department shall be discharged or reduced in rank or suspended for a term exceeding thirty days by the chief of either of said departments respectively except for cause and -after- subject to trial as herein provided.
“13. The chief discharging, reducing or suspending -for a-period- ■ excoeding-th-irty-days- any member of his force as aforesaid shall immediately report the same to the secretary of the board of fire and police commissioners together with a complaint setting forth the reasons for such discharge, reduction or suspension and the name of the complainant if other than the chief. Within ten days after such discharge, reduction or suspension the members so discharged, reduced or suspended may appeal from such order of discharge or suspension to the said board of fire and police commissioners. ...”
This proposed amendment to the law appears to have been defeated in the assembly by a vote of 78 to 11. In the light of this legislative history and the terms of the statute itself, it seems to me that up to the present time, at least, there has been a determined attitude on the part of the legislature to impose upon the chiefs of the police and fire departments in the city of Milwaukee a responsibility to regulate their departments and discipline their members so as to maintain a high standard of efficiency in an agency in the service of the people. As a means to the accomplishment of that end, confidence has been reposed in the officials by the representatives of the people that they will properly use the powers which are vested in them. The powers are, among others : (1) To reduce in rank when in the discretion of the chief occasion requires it; and (2) subject to the right of trial, to discharge and suspend members of the department. We must presume that the sue-
For these reasons I disagree with my brethren.
I am authorized to state that Mr-. Justice Wickhem concurs in this opinion.
The following memorandum was filed February 9, 1937:
Rehearing
(on motion for rehearing). The respondents move for a rehearing on the ground that the opinion of the court shows a misapprehension by the court that the appellant was a “first assistant engineer” of the fire department, whereas he was only an assistant chief of the department, and quotes sub. 8 of the act involved, which relates to the appointment of the first assistant engineer by the chief with the approval of the board “subject to suspension and removal” as provided by the act, as bearing upon the rights of the appellant. The opinion shows misapprehension as stated, and counsel are correct in claiming that the subsection cited has no bearing upon appellant’s rights.