225 Wis. 335 | Wis. | 1937
The plaintiffs’ contentions may be stated as that the ordinance reducing salaries is void, (1) because not pursuant to a “recommendation” of the board of fire and police commissioners; (2) because not made at the first meeting of the council in February; (3) because the board of fire and police commissioners was not legally constituted. The
(4) The defendants claim that mandamus will not lie to compel the issuance of orders upon the city treasury unless it appears that there are funds in the treasury to pay them, and as the petition did not allege the existence of such funds, their motion to quash should have been granted. The premise of the defendants is correct. State ex rel. Brown v. Slavan, 11 Wis. 160; State ex rel. Gericke v. Mayor and Common Council, 99 Wis. 322, 327, 74 N. W. 783; State ex rel. Redenius v. Waggenson, 140 Wis. 265, 268, 122 N. W. 726; State ex rel. Van Lyssel v. Scheuring, 154 Wis. 93, 96, 141 N. W. 1001. However, it does not necessarily follow, because the remedy of mandamus was invoked, that the court is precluded from granting such relief to the parties as the allegations of the petition and proofs upon trial show them to be entitled. We recently granted relief as upon a complaint for a declaratory judgment in a case wherein the remedy invoked was mandamus. State ex rel. Young v. Maresch, ante, p. 225, 273 N. W. 225. Without approving the use of the remedy of mandamus, except in cases where it clearly lies, we- consider that in the instant case the public interests will be better, because more quickly, served by following the course adopted in the Young Case, supra.
(1) The petitioners’ main assignment of error is that the ordinance reducing their salaries is void because sec. 62.13 (7), Stats., provides that while the city commissioners may fix the salaries of the members of the fire and police departments, they cannot reduce them except-on the recommendation of the board of fire and police commissioners, and they claim that the action of the latter board in that respect did not recommend and therefore did not confer authority to make the reduction. •
The final action of the board in that respect was to pass a resolution on November 2, 1932, by a vote of five to one,
(2) The contention here is that as the resolution reducing salaries was adopted at a meeting of the council in January, it is void because sec. 62.09 (6) (b), Stats., provides that
(3) The contention here is that the board of fire and police commissioners is illegally constituted, because it consists of six members instead of five, and because the mayor is a member of the board. The membership of the board is governed by secs. 62.13 (1) and 63.05 (6), Stats. The former provides for five citizens on the board. The latter provides that in cities under the commission form of government the council shall annually select one of its own members to act as a member of each of the boards and commissions existing under the statutes. The mayor is a member of- the city council. Sec. 63.04 (1), Stats. The mayor in the instant case was selected by the council as the one of its members to act as a member of the board of fire and police commissioners. Under the statutory provisions above referred to, we are unable to perceive any defect in the constitution of that board. Were this not so, the plaintiffs could not in this action attack the validity of the board’s action. It is at least a de facto board and its acts as such are valid. 2 McQuillin, Mun. Corp. §§ 504, 505; State ex rel. Bloomer v. Canavan, 155 Wis. 398, 145 N. W. 44; State ex rel. Sisson v. Kalk, 197 Wis. 573, 223 N. W. 83.
By the Court. — The judgment of the circuit court is affirmed.