Smelker v. Campbell

165 Wis. 358 | Wis. | 1917

Winslow, C. J.

Upon the defendants’ appeal it is urged that the county court had no jurisdiction of the subject matter of this action. The statute conferring civil jurisdiction on this court is ch. 339, Laws 1915, and the particular section in question will be found printed in the case of State ex rel. Owen v. Reisen, 164 Wis. 123, 159 N. W. 747, where it was held that its jurisdiction did not extend to an action in equity to enjoin a public nuisance. Under this ruling it may well be that, if this action had been brought simply to enjoin the city from paying any salaries in the future, it would not be within the jurisdiction granted to the county court. The primary object of the action, however, as shown by the demand for judgment, was to recover on behalf of the city the sums already paid out, and enforce their repayment to the city. An action brought for this purpose is certainly included within the words “all civil actions ... in law and in equity . . . for all claims, demands and sums . . . not exceeding the sum or value of twenty-five thousand dollars.” The county court having jurisdiction to determine this claim, it becomes unnecessary to determine whether it had power to grant injunctional relief or not.

Upon the merits of the case we think the judgment must he reversed. It is clear that all mere defects of procedure in the passage of the ordinance have been cured by sec. 926a, Stats., providing in effect that any such question may be tested by certiorari action brought within three months after the adoption of the ordinance, but not thereafter. This seems also to have been the conclusion of the trial judge, but he concluded further that the council, by leaving out two sections, had failed to adopt an entire plan covering a given subject, but only an incomplete fragment, and hence that the attempt had failed. Adams v. Beloit, 105 Wis. 363, 81 N. W. 869; State ex rel. Boycott v. Mayor, etc. 107 Wis. 654, 84 N. W. 242. In this we think the trial court was in error. Secs. 925 — 22 to 925 — 36 of the general charter law form subch. V of the general charter law (ch. 40a, Stats. 1915). The sections cover many subjects, such as the number and names of city officers, the manner of their election, their term of office, the eligibility of citizens to office, the fixing of salaries, filling of vacancies, term of office, removal from office, and other provisions. The subchapter cannot be logically considered as a complete scheme from which nothing can be taken without destroying the legislative purpose; it is rather a chapter containing sections covering many different though nearly related subjects. The two sections which were omitted by the ordinance of adoption were sections relating to the methods of electing city officers and the time of the commencement of their terms of office. These subjects were both fully provided for in somewhat different ways by the special charter of the city. There is no inconsistency between the provisions of the special charter covering these subjects and the provisions of the general charter which were adopted by the ordinance. They can stand together harmoniously and without hiatus. Under these circumstances the rule of the cases cited above has no application. The city had power to adopt the sections which it attempted to adopt, and they are now a part of the charter, superseding such parts of the special charter as are in conflict with them.

These considerations dispose of the case and obviate the consideration of any further questions.

By the Court. — Judgment reversed on both appeals, and action remanded with directions to dismiss the complaint on the merits. Defendants to tax one bill of costs.