300 N.W. 917 | Wis. | 1941
Lead Opinion
Action by James T. McClutchey, as a taxpayer, against the county of Milwaukee and others to enjoin payment of public money. From a judgment dismissing the complaint, the plaintiff appeals. The facts are stated in the opinion. The following opinion was filed October 7, 1941: The plaintiff sues to enjoin payment of salary to the defendant Boncher, who is in the service of the county as "engineman in charge of maintenance" in the courthouse. The plaintiff sues solely in his capacity as a taxpayer of the county. Boncher has been continuously in the service of the county as an "engineman" for over ten years. The sole ground of the action is that his original appointment was illegal under the civil-service law applicable to the county and the rules established by the board charged with the administration of the law. Coupled with the prayer for an injunction is a prayer that the defendant Sommers, the county treasurer, be adjudged to pay into the county treasury the amount of salary paid to. Boncher during the entire term of his service. The latter claim, however, has been abandoned, and we are concerned only with the injunctional feature of the case.
We are of the opinion that the dismissal of the complaint was proper for the reason that under the facts involved a taxpayer's action does not lie. It is fundamental that in order to maintain such an action the taxpayer and taxpayers as a class must have sustained or will sustain some pecuniary loss.Kasik v. Janssen,
The dismissal of the action being correct for the reason above stated, the judgment must be affirmed, regardless of the grounds of the decision laid by the circuit judge or the other contentions of counsel pro and con Gregory v. *142 Simpson,
By the Court. — The judgment of the circuit court is affirmed.
Addendum
The following opinion was filed December 2, 1941:
A motion for rehearing is made, based on the contention that the instant case is ruled by Johnson v. Milwaukee,
On the proposition that the action is a taxpayer's action the Johnson Case, supra, is in direct conflict with the decision of this court in Milwaukee Horse Cow Comm. Co.v. Hill,
It is to be noted that the entertainment of the instant action is contrary to the holding of the court in the later case ofState ex rel. Elliott v. Kelly,
If the city clerk was not entitled to withhold a warrant for Elliott's salary certainly a taxpayer's action could not have been maintained to enjoin the clerk from issuing a warrant therefor or to enjoin the city treasurer from paying such warrant. And if action would not lie to enjoin payment of salary to a city officer because he was not qualified or improperly chosen, certainly such action does not lie to enjoin payment of the salary of one who is not an officer but only a county employee.
It is further to be noted that the instant case does not fail within the reason of the Johnson Case, supra, and is therefore not ruled by it because of the difference between the factual situations involved. In the instant case, the appointee Boncher, had taken a civil-service examination and was certified by the commission as eligible to appointment. If his appointment was void, its validity could be attacked by *144 certiorari by anyone who had such interest as entitled him to attack it. The other persons on the certified list obviously had such interest as entitled them to make such attack. Their time to attack by certiorari was limited to the time in which appeal lies from a judgment. State ex rel. Dalrymple v. MilwaukeeCounty,
The motion for rehearing is denied with $25 costs.