McClutchey v. Milwaukee County

The following opinión was filed October 7, 1941: Fowler, J. The plaintiff sues to enjoin payment of salary to the defendant Boncher, who is in the service of the county as “engineman in charge of maintenance” in the courthouse. The plaintiff sues solely in his capacity as a taxpayer of the county. Boncher has been continuously in the service of the county as an “engineman” for over ten years. The sole ground of the action is that his original appointment was illegal under the civil-service law applicable to the county and the rules established by the board charged with the administration of the law. Coupled with the prayer for an injunction is a prayer that the defendant Sommers, the county treasurer, be adjudged to pay into the county treasury the amount of salary paid to Boncher during the entire term of his service. The latter claim, however, has been abandoned, and we are concerned only with the injunctional feature of the case. We are of the opinion that the dismissal of the complaint was proper for the reason that under the facts involved a taxpayer’s action does not lie. It is fundamental that in order to maintain such an action the taxpayer and taxpayers as a class must have sustained or will sustain some pecuniary loss. Kasik v. Janssen, 158 Wis. 606, 149 N. W. 398; Berger v. *141 Superior, 166 Wis. 477, 166 N. W. 36; Murphy v. Paull, 192 Wis. 93, 212 N. W. 402; Milwaukee Horse & Cow Comm. Co. v. Hill, 207 Wis. 420, 241 N. W. 364; Stuart v. Gilbert, 215 Wis. 546, 255 N. W. 142. In Milwaukee Horse & Cow Comm. Co. Case, supra, p. 428 et seq., this point is discussed at some length. It is there said that the only case in our court in which the action has been entertained when the plaintiff sustained no pecuniary loss is Tyre v. Krug, 159 Wis. 39, 149 N. W. 718, which is declared “out of line with every other Taxpayer’s action the maintenance of which has been sanctioned in this state, for the simple reason that no injury to taxpayers as such was present in the case,” and is expressly overruled. It is obvious that the taxpayers have not sustained nor will sustain any pecuniary loss by continuance of Boncher in the position he is occupying. He is filling and has ever filled the position adequately. He has at all times filled it and is now filling it in a highly efficient and entirely satisfactory manner. Had he not been appointed some one else would have been appointed to- the place, and the same salary paid to such appointee or appointees. Precisely the same salary would have been paid for the same service. If a mere public right is to be vindicated, or the evasion of law to be' prevented by injunction, the action should be brought by the district attorney or some public officer or body especially charged with the duty of enforcing the law. , If brought by a private person it must be pursuant to a statute especially empowering the private person to bring it under the circumstances existing. This action is brought merely to vindicate and prevent evasion of the civil-service law, and there is no statute authorizing a private person to bring such action. The dismissal of the action being correct for the reason above stated, the judgment must be affirmed, regardless of the grounds of the decision laid by the circuit judge or the other contentions of counsel pro and con. Gregory v. *142 Simpson, 173 App. Div. 6, 159 N. Y. Supp. 1016, is cited in support of the proposition that a taxpayer’s action will lie to enjoin payment of money to an employee on the ground that his appointment was illegal because violative of the civil-service statute applicable to cities in the state of New York, but the statute expressly gives the right of action to taxpayers irrespective of pecuniary loss to them. The case is without force as authority in absence of statutory authorization and none exists in this state. By the Court. — The judgment of the circuit court is affirmed. The following opinion was filed December 2, 1941: