155 Wis. 66 | Wis. | 1913
This is an appeal from a judgment granting m peremptory writ of mandamus commanding tbe defendant, as comptroller of tbe city of Milwaukee, to audit and countersign tbe pay rolls of said city for the-months of April, May, June, and July, 1912, so far as the salary, at $15Q per month, of tbe relator, as superintendent of tbe police and fire alarm system, is concerned. The defendant demurred to tbe petition for an alternative writ on tbe ground that it did not state facts sufficient to constitute a cause of action, and upon tbe court’s overruling tbe demurrer judgment was granted as stated. Tbe appeal raises a number of questions which will be briefly noticed.
1. It is claimed that tbe relator is not entitled to his salary because tbe petition shows that on tbe 25th of April he presented bis resignation to tbe board of fire and police commissioners and that such resignation vacated tbe office. Counsel for relator cites a large number of cases bolding that a resignation without an acceptance does not vacate the office, and counsel for defendant cite many cases holding the contrary. Fortunately, sec. 962, Stats. 1911, settles tbe controversy. It provides: “Every office shall become vacant on tbe happening of either of the. following events: (1) Tbe death of tbe incumbent. (2) His resignation. ...” So it must be held that upon tbe filing of tbe resignation of the-
2. But the petition shows the board refused to accept the resignation and that the relator continued, to exercise the duties of the office up to the time of filing the petition. He therefore became a de facto officer from the time his resignation was filed, and having, performed the duties of the office, and there being no de jure officer claiming it, he was entitled to his salary under the rule of State ex rel. Elliott v. Kelly, 154 Wis. 482, 143 N. W. 153.
3. The objection that he was debarred from drawing a salary because he received a' pension is negatived by ch. 347, Laws of 1913, amending sec. 925 — 31c, Stats., which provides :
“No officer or employee receiving a salary from any city, whether organized under general or special law, shall receive for service of any kind or nature rendered-such city any compensation therefor other than the salary fixed and provided for such office. This act shall apply to all officials now serving or hereafter elected or appointed to public place. Provided, that for the purposes of this section moneys or funds held by any such city as pension funds shall not be considered or construed to be city money or funds, and that the payment to or receipt by any person of any money from any such funds shall not be construed as the payment or receipt of money or compensation from such city.”
4. It is claimed that ch. 586, Laws of 1911 (sec. 959— 46cZ, Stats.), which creates a board of police and fire commissioners in cities of the first class, and under which the relator was appointed, is unconstitutional, because it provides with reference to membership: “Not more than two of whom shall at any time belong to the same political party,” and the
5. Tfie objection that tfie relator is not entitled to his salary because it was not fixed at tfie time when tfie charter requires the fixing of annual salaries is disposed of in favor of tfie relator by tfie case of State ex rel. Elliott v. Kelly, 154 Wis. 482, 143 N. W. 153.
A number of other points are raised by tfie defendant, but they do not seem to be of sufficient importance to merit separate treatment. They have all been considered and field not to affect tfie merits of tfie judgment appealed from.
By the Court. — Judgment affirmed.