88 Wis. 135 | Wis. | 1894
No question is made of the power of the-legislature to change the term of the office of city attorney of the city of Milwaukee so as to make it a term of four years, instead of a term of two years, as theretofore. The debate is upon the question of the power of the legislature to extend the term of office of the then incumbent of the office from two years to four years.
The constitution of the state (art. XIII, sec. 9) provides: “All city, town, and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns, and villages, or some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose.”
The office of city attorney existed before the constitution was enacted. It has not been created since. The territorial charter of the city of Milwaukee provided for a city attorney, to be appointed by the common council. His duties were not defined with much detail, but the office. wag recognized. It is, then, one of the city offices which are within the provisions of the constitution. C. & N. W. R. Co. v. Langlade Co. 56 Wis. 614; People ex rel. Brown v. Woodruff, 32 N. Y. 355.
So the decisive question is whether the provision of the act of 1889 which declared the term of office of the then incumbent of the office of city attorney of the city of Milwaukee to be extended two years was, in substance and effect, an appointment of the then incumbent to that office for the term of two years. If he should hold the office for that term of two years, would his tenure be by virtue of appointment by the legislature, or would it be by virtue of his election to the office for a previous term, which had expired? If it would be by virtue of the appointment,, then it would be in disobedience of the constitution and.
No account is made of the right which the. incumbent has to hold beyond his term until his successor is elected and qualified. The appellant’s claim is not based upon that right, but upon the power of the legislature to extend the term.
As the law was before the enactment of ch. 35, Laws of 1889, the next regular election for city attorney was appointed to be held on the first Tuesday in April, 1890.
Ho other time being fixed therefor by law, the act took effect from the time of its publication, and operated to extend the term of the person elected at the election next ensuing its enactment. State ex rel. Knox v. Hadley, 7 Wis. 700. That term began on the third Tuesday of April, 1890, and ended on the third Tuesday of April, 1894. The relator was elected at the municipal election held on the first Tuesday of April, 1894. He has qualified, and is entitled to hold the office.
By the Court.— The judgment of the circuit court is affirmed.