McClutchey v. Milwaukee County , 239 Wis. 139 ( 1941 )

The following opinion was filed December 2, 1941: A motion for rehearing is made, based on the contention that the instant case is ruled by Johnson v. Milwaukee, 147 Wis. 476,133 N.W. 627. The Johnson Case, while cited in the appellant's brief, was not referred to in the opinion filed. It was not examined because cited in the synopsis of the brief to the point that the statute of limitations does not bar the action, and that point was not mentioned because the decision was based wholly on the point that the action is not a taxpayer's action.

On the proposition that the action is a taxpayer's action the Johnson Case, supra, is in direct conflict with the decision of this court in Milwaukee Horse Cow Comm. Co.v. Hill, 207 Wis. 420, 241 N.W. 364, and should be disregarded for the same reason that the decision in Tyre v. Krug,159 Wis. 39, 149 N.W. 718, was disregarded in the Horse Cow Comm. Co. Case, viz., that it manifestly is not a taxpayer's action because the taxpayer is not pecuniarily affected and is in no different position from a citizen not a taxpayer. This point was not considered in the Johnson Case. The only question there raised by the appellant was that the action was quo warranto, and that was the only question considered by the court. The case of Butler v. Milwaukee, 119 Wis. 526,97 N.W. 185, considered by the court in the Johnson Case as ruling it, was decided on the express ground that the officer involved was expressly exempted from subjection to civil-service law by the terms of the statute creating that law. The point of no pecuniary interest was not considered by the court.

It is to be noted that the entertainment of the instant action is contrary to the holding of the court in the later case ofState ex rel. Elliott v. Kelly, 154 Wis. 482, 143 N.W. 153. That case involved the payment to an officer of the city of Tomahawk. The city clerk refused to issue a warrant for his monthly salary on the ground, among others, that he was not qualified to hold the office because not a citizen of the state and his election to the office by the city council was therefore void. The court held that whether he was qualified, and whether his election was void, were immaterial, because he had performed the duties of the office, he was therefore a de facto officer, there was no other claimant to the office and he was entitled to the salary.

If the city clerk was not entitled to withhold a warrant for Elliott's salary certainly a taxpayer's action could not have been maintained to enjoin the clerk from issuing a warrant therefor or to enjoin the city treasurer from paying such warrant. And if action would not lie to enjoin payment of salary to a city officer because he was not qualified or improperly chosen, certainly such action does not lie to enjoin payment of the salary of one who is not an officer but only a county employee.

It is further to be noted that the instant case does not fail within the reason of the Johnson Case, supra, and is therefore not ruled by it because of the difference between the factual situations involved. In the instant case, the appointee Boncher, had taken a civil-service examination and was certified by the commission as eligible to appointment. If his appointment was void, its validity could be attacked by certiorari by anyone who had such interest as entitled him to attack it. The other persons on the certified list obviously had such interest as entitled them to make such attack. Their time to attack by certiorari was limited to the time in which appeal lies from a judgment. State ex rel. Dalrymple v. MilwaukeeCounty, 58 Wis. 4, 16 N.W. 21; State ex rel. Grotegut v.Wuensch, 148 Wis. 218, 221, 134 N.W. 367. If it be granted that for extraordinary circumstances, certiorari might be granted after the time for appealing from judgments had expired, no extraordinary circumstances to warrant such issuing of the writ existed in this case. Grotegut Case, supra. If the time of the persons entitled to attack Boncher's original appointment by certiorari expired in the time appeal lies from judgments, such persons could not so attack it ten years after the appointment was made; and if such persons could not then attack it by certiorari, it is not conceivable that anyone else could then attack it in any other way.

The motion for rehearing is denied with $25 costs.