112 Wis. 637 | Wis. | 1902
As indicated in the statement of facts, the board not only made return to the writ, but two supplemental returns.
1. Error is assigned because the court refused to receive evidence to show that the second supplemental return was not in fact the return of the board. It was made in response to an order of the court, and under and in pursuance of a resolution of the board, adopted ata special meeting thereof called for that purpose, authorizing and directing the president of the board “ to sign said return for and in behalf of said board, and to cause said return to be duly and forthwith filed in said circuit court for Milwaukee county; ” and the same was so signed, as follows: “ The Board of Trustees of the Public Museum of Milwaukee, by E. W. Windfelder, President of Said Board.” There is no pretense that such return was a forgery, nor that it was not made by the authority and direction of six of the nine members of the board.
Moreover, counsel contend that the return made was incomplete, in that the “ pencil memoranda ” kept by the secretary, showing each of the several votes of the members of the board upon each of such several charges, had been destroyed by the secretary, and that, as there was a conflict between the affidavits of the three dissenting trustees and the return, as to the result of some of such votes, neither could supply the record itself, and hence that the court improperly accepted and acted upon the return as made. “ The return must consist,” say counsel, “ exclusively of the record before the tribunal below, and no missing link can be supplied by the recollection of the lower tribunal or the affidavits of other persons.” In support of the proposition, counsel cite cases where the tribunal below was required by statute to keep records. Cassidy v. Millerick, 52 Wis. 379, followed in later cases (Fulton v. State ex rel. Meiners, 103 Wis. 241, and cases there cited). The act of the legislature under which the Public Museum in question was established
2. It is urged that the return should be disregarded, for the reason that one of the trustees was absent for a short time on two occasions during the trial or investigation. The contention is without foundation. This is settled by numerous adjudications of this court, and in fact by statute. Subd. 3, sec. 4971, Stats. 1898. Melms v. Pfister, 59 Wis. 196, and numerous cases there cited; In re Luscombe’s Will, 109 Wis. 194, 197.
3. It is urged that the return should be disregarded, because none of the witnesses on either side was sworn. In support of such contention, counsel cite cases in courts of law or tribunals before which witnesses were required to be sworn.
“The power to remove officers for cause, though to-be exercised in a judicial manner, is administrative, not judicial. It is a part of the power of the corporation, which is very useful, in fact almost necessary, for the efficient performance of the corporate duties. In this state the exercise of the power by similar bodies does not seem to have been questioned until now, though the cases have been quite numerous.” State ex rel. Starkweather v. Common Council of Superior, 90 Wis. 619.
Sufficient authority is there cited in support of such statements. See, also, State ex rel. Moreland v. Whitford, 54 Wis. 150; State ex rel. Sch. Dist. v. Thayer, 74 Wis. 48; State ex rel. Heller v. Lawler, 103 Wis. 460; 2 Bailey, Jurisdiction, §§ 433 et seq.
4. The question recurs whether, upon the facts so returned, the board was justified in removing the appellant from the office of custodian. The act in question prescribes the du
“ The custodian elected under this act may be removed from office for misdemeanor, incompetency or inattention to the duties of his office, by a vote of two thirds of the board of trustees; the assistants and other employees may be removed by the board for incompeténcy or for any other cause.” Sec. 7, ch. 328, Laws of 1882.
The returns show that the appellant was acquitted of the third charge, and that the board was unable to agree to a specific fin ding as to the sixth charge. The returns further show that “ by a vot.e of two thirds of the board of trustees ” the appellant was found guilty of the first, second, fourth, and fifth charges, respectively. As to the first charge, he was simply found guilty of official misconduct toward Carl Thal, and censured therefor. As to the fourth charge, he was found to be at fault, and censured therefor. Upon the second charge it was found, in effect, that in 1899 he purchased certain books from foreign book dealers, never authorized by the board of trustees, and which were in fact purchased by him for his personal use, but were charged' to the museum. Under the fifth charge it was found, in effect, that in May, 1898, he presented to the finance committee of the museum a bill for the payment of $1(3.11 freight and other charges from Uew York to Milwaukee on 660 pounds of books, all of which except thirty-six pounds were for himself personally, and that the finance committee and the board, being deceived by NeKrling in the matter, signed and allowed the bill. The board thereupon held that the evidence sustained “ the charges so far as to prove the misconduct, incompetency, and inattention to the duties of his office,” and hence removed him from the office of custodian. Counsel contend that Nehrling was not found guilty of a misdemeanor. But, as indicated, he is, in effect, found guilty of obtaining money from the museum by false pre
By the Court.— The judgment of the circuit court is affirmed.