State ex rel. Ballard v. Goodland
150 N.W. 488
Wis.
1915
Check Treatment
Timlin, J.

Proceeding under see. 916, Stats. 1913, the circuit judge removed the relator from his office as chairman of the board of supervisors of the town of Grand Chute, Outa-gamie county, because Mr. Ballard had refused to levy a tax of $4,800 upon the taxable property of his town pursuant to the provisions of ch. 337, Laws of 1911, otherwise sub. 3 of sec. 1317m' — 4, Stats. 1911. Sec. 976 confers upon the circuit judge as contradistinguished from the circuit court certain administrative and quasi-judicial powers, to be exercised either during term time or vacation, for the purpose of removing town officers for cause and upon charges, notice, and hearing. The circuit court issued a writ of certiorari to the judge of-that court to review the above decision, and from a judgment of the circuit court affirming on certiorari the order-of the circuit judge this appeal is taken. The proceedings for removal returned pursuant to the writ show that the sole cause for removal was a refusal of Mr. Ballard to proceed under sub. 3, supra. After the order removing Mr. Ballard, the statute which he refused to obey, sub. 3 of sec. 1317m — 4,. otherwise known as ch. 337, Laws of 1911, was by this court declared unconstitutional in State ex rel. Carey v. Ballard, 158 Wis. 251, 148 N. W. 1090. The statute was there held invalid because, while leaving the administration of highway affairs and the raising of highway taxes with the town, it at*395tempted to confer upon private citizens, who would put up a sum of money for the privilege, power to fix the amount and compel the levy of a tax and direct its expenditure. There was therefore no ground shown in the charges or evidence for the removal of Mr. Ballard. An unconstitutional law imposes no enforceable legal duty, but the duties of the office remain defined by existing valid laws and as if such unconstitutional law had never been enacted. Barling v. West, 29 Wis. 307, 314; Campbell v. Sherman, 35 Wis. 103; Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885; Norton v. Shelby Co. 118 U. S. 425, 6 Sup. Ct. 1121.

Appellant contends that the removal of an officer is an administrative act. This is too broadly stated. It may be and it may not be, depending upon the kind of office and the kind of the tribunal by which the power is exercised and the statute prescribing the procedure for removal. No one would contend that removal from office by quo warranto or by impeachment is an administrative act. Generally speaking, proceedings to remove municipal officers are administrative. The legislature may in the absence of constitutional restriction confer the power of removal of officers upon an administrative tribunal. Express statute may provide for summary removal without charges and without hearing. But the statute may require the qiiast-judicial action of an administrative tribunal in order to remove, as where the statute expressly or by fair implication confers upon such tribunal the power and duty to hear evidence and determine the existence of facts which are ■cause for such removal. In the latter case the requirement ■of due process of law obtains. Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595; Schutz v. Roenitz, 86 Wis. 31, 56 N. W. 194; McGehee, Due Process of Law, 28-30, 162, 164. The removal provided-for in sec. 976, Stats. 1913, is of the latter class. Administrative powers are conferred upon the circuit judge, not as a court, but as an administrative officer, such -powers to be exercised by him by quasi-judicial action. All *396tribunals so acting in a qiiasz-judicial capacity are subject to tbe jurisdiction of the circuit court. Sec. 8, art. VII, Const. It was therefore proper procedure for the circuit court to issue its writ of certiorari to the judge of that court to review the qiitm-judicial action of the latter. The question presented is therefore properly before this court, and, the removal of Mr. Ballard having been without legal or justifiable cause, the judgment of the circuit court affirming the order of the judge is reversed, and the cause remanded with directions to the circuit court to reverse such order of the judge and dismiss the proceedings, with costs against the petitioner for removal.

By the Court. — It is so ordered.