State Ex Rel. Kidder v. Steele
241 Wis. 198
| Wis. | 1942

Petition filed by Joseph K. Kidder, a member of the board of police and fire commissioners of La Crosse, praying for a writ of prohibition commanding the common council of the city and Fred E. Steele, a resident and taxpayer thereof, to desist from proceeding further before the common council on charges filed against Kidder as basis for his removal by the common council as a member of its board of police and fire commissioners. A motion to quash an alternative writ of prohibition was made by Steele and the common council, and the latter also demurred to Kidder's petition on the ground that neither the petition nor the writ states facts sufficient to entitle petitioner to the writ. The court entered orders sustaining the demurrer, denying the petition for a permanent writ, vacating the provisional writ and dismissing the petition. Kidder appealed from the orders. The appellant, Joseph K. Kidder, who was appointed and serving under sec. 62.13 (1), Stats., as a member of the board of police and fire commissioners of the city of La Crosse, contends that by reason of the general exception and inhibition created by sub. (4) of sec. 17.12, Stats., the provisions in sec. 17.12, which authorize the common council of a city to remove an appointive officer thereof for cause, are not applicable to the removal of a police and fire commissioner, and therefore the defendant common council is without authority to proceed with a hearing on charges filed as basis for the removal of Kidder as a commissioner.

Sub. (4) of sec. 17.12, Stats., reads:

"General exception. But no officer of any city, appointed according to merit and fitness under and subject to a civil service or to a police and fire commission law, or whose removal is governed by such a law, shall be removed otherwise than as therein provided."

Under the plain and obvious meaning of the terms in that provision, the application of the exception and inhibition created thereby is limited to officers (1) "appointed according to merit and fitness under and subject to a civil service or to a police and fire commission law, or" (2) "whose removal is governed by such a law." Under the police and fire commission law, sec. 62.13, Stats., the appointment of a commissioner is not required by any provision therein to be made according to merit and fitness under and subject to either a civil service or to the police and fire commission law. No such test as to qualifications or eligibility is prescribed or required by any law in relation to the appointment of such a commissioner. Neither is there any provision in sec. 62.13, Stats., which can be deemed to govern or be applicable to the removal of a *Page 200 commissioner, — although in sub. (5) thereof there are provisions governing removals of chiefs and subordinates of police and fire departments appointed under either sub. (3) or (4) thereof. Consequently, as the exception created by sec.17.12 (4), Stats., is not applicable to Kidder as such commissioner, the common council is authorized to proceed, under provisions in sec. 17.12 (1) (c) and (d), Stats., in relation to the charges filed as basis for his removal as such officer, and therefore the orders under review must be affirmed.

By the Court. — Orders affirmed.