Kempster v. City of Milwaukee

Winslow, J. This is an appeal from an order sustaining a demurrer to the-complaint. The complaint alleges, in substance, that the plaintiff was the duly elected and qualified commissioner of health of the city of Milwaukee, and that in October, 1894, while a smallpox epidemic was raging in said city, and the plaintiff was performing his duty in trying to check the same, thirty-four charges of misconduct in office were wilfully and maliciously preferred against him, by private parties, to the council, for the sole purpose of harassing the plaintiff and causing him to abdicate his office; that the council thereupon, for the sole purpose of harassing and embarrassing the plaintiff and putting him to expense and annoyance, appointed a committee to investigate the charges; that afterwards the council, upon a report of such committee, adopted a resolution declaring nine of the charges sustained, [423] •and dismissing the plaintiff from bffice; thgt upon certiorari the removal proceedings were reversed by the circuit court for Milwaukee county, and the plaintiff was reinstated in his office; that by reason of the council’s taking cognizance of the said charges, and compelling the plaintiff to defend his office and official acts for the public good, he was put to great expense in procuring the services of attorneys. And he prays to recover of the city the amount of the bills for attorney’s services so incurred. It is quite apparent that this complaint states no cause of action against the city. In carrying out the laws for the preservation of the public health the city is performing a duty which it owes to the whole public as distinguished from a mere corporate duty. It is a duty which it is bound to see performed in pursuance of law as one of the governmental agencies, but not a duty from which it derives special benefit or pecuniary advantage in its corporate or private capacity. It is like the administration of the fire and police departments. Hayes v. Oshkosh, 33 Wis. 314; Kuehn v. Milwaukee, 92 Wis. 263; 2 Dillon, Mun. Corp. (4th ed.), § 977. It is well settled that a city may indemnify its officers against liabilities incurred in the discharge of their duties where the city had a right to defend or had a pecuniary or corporate interest in the discharge of such duty, but not where the officer was acting simply as an official performing a public service, such as the preservation of public order or the conserving of the public health. Mechem, Pub. Off. § 879; 1 Beach, Pub. Corp. § 648; Lawrence v. McAlvin, 109 Mass. 311. If the city cannot legally agree to indemnify such officer, it plainly cannot be liable without agreement. If the common council was guilty of an actionable tort in maliciously •encouraging the prosecution of the plaintiff, its members must answer therefor in their individual capacity; there would be no corporate liability. Uren v. Walsh, 57 Wis. 98; Robinson v. Rohr, 73 Wis. 436. By the Court.— Order affirmed.