Nehrling v. State ex rel. Thal

Cassoday, C. J. As indicated in the statement of facts, the board not only made return to the writ, but two supplemental returns. 1. Error is assigned because the court refused to receive evidence to show that the second supplemental return was not in fact the return of the board. It was made in response to an order of the court, and under and in pursuance of a resolution of the board, adopted ata special meeting thereof called for that purpose, authorizing and directing the president of the board “ to sign said return for and in behalf of said board, and to cause said return to be duly and forthwith filed in said circuit court for Milwaukee county; ” and the same was so signed, as follows: “ The Board of Trustees of the Public Museum of Milwaukee, by E. W. Windfelder, President of Said Board.” There is no pretense that such return was a forgery, nor that it was not made by the authority and direction of six of the nine members of the board. Moreover, counsel contend that the return made was incomplete, in that the “ pencil memoranda ” kept by the secretary, showing each of the several votes of the members of the board upon each of such several charges, had been destroyed by the secretary, and that, as there was a conflict between the affidavits of the three dissenting trustees and the return, as to the result of some of such votes, neither could supply the record itself, and hence that the court improperly accepted and acted upon the return as made. “ The return must consist,” say counsel, “ exclusively of the record before the tribunal below, and no missing link can be supplied by the recollection of the lower tribunal or the affidavits of other persons.” In support of the proposition, counsel cite cases where the tribunal below was required by statute to keep records. Cassidy v. Millerick, 52 Wis. 379, followed in later cases (Fulton v. State ex rel. Meiners, 103 Wis. 241, and cases there cited). The act of the legislature under which the Public Museum in question was established [644] and is maintained does not require the keeping of records. Ch. 328, Laws of 1882. But the rule is elementary, as stated by Mr. Greenleaf, that, “ If the record is lost, . . . its contents may be proved, like any other document, by any secondary evidence, where' the case does not, from its nature, disclose the existence of other and better evidence.” 1 Greenl. Ev. § 509. Here the return shows that before destroying such “ pencil memoranda ” the secretary prepared therefrom the record of the executive session at which such votes were taken, and recorded the same in the record book of the board, the same as reported to the court, believing “ that the conclusion only of the board was necessary to appear upon the records,” and hence that such pencil memoranda were of no further use or consequence; and, so believing, they were destroyed long before any proceeding had been taken in court and without any intention of suppressing or concealing any of the facts. In harmony with numerous adjudications of this court, we must hold that the return of the board was responsive to the writ of certiorari and conclusive upon the relator; and there was no error in refusing to require a further return. State ex rel. Gray v. Common Council, 104 Wis. 622; State ex rel. Heller v. Fuldner, 109 Wis. 56. 2. It is urged that the return should be disregarded, for the reason that one of the trustees was absent for a short time on two occasions during the trial or investigation. The contention is without foundation. This is settled by numerous adjudications of this court, and in fact by statute. Subd. 3, sec. 4971, Stats. 1898. Melms v. Pfister, 59 Wis. 196, and numerous cases there cited; In re Luscombe’s Will, 109 Wis. 194, 197. 3. It is urged that the return should be disregarded, because none of the witnesses on either side was sworn. In support of such contention, counsel cite cases in courts of law or tribunals before which witnesses were required to be sworn. [645] In a case cited by both parties it was held by this court at an early day, in effect, that where no oath is required by statute the taking of an oath would be “ extrajudicial and no indictment for perjury would lie upon it, however clearly it might be proven ” that the person taking such oath had acted corruptly. Lumsden v. Milwaukee, 8 Wis. 494; State ex rel. Andrews v. Oshkosh, 84 Wis. 565. The act of the legislature in question required the trustees to take an “ official oath,” and expressly authorized them to remove the custodian “ from office for misdemeanor, incompetency or inattention to the duties of his office.” Secs. 3, 7, ch. 328, Laws of 1882. But the act nowhere requires or suggests that any witness shall be produced, much less sworn and examined, in the investigation resulting in such removal. The act seems to contemplate a summary investigation by the trustees,— of course giving such official an opportunity to be heard. As stated by Mr. Justice Winslow in a case cited by the appellant’s counsel: “The power to remove officers for cause, though to-be exercised in a judicial manner, is administrative, not judicial. It is a part of the power of the corporation, which is very useful, in fact almost necessary, for the efficient performance of the corporate duties. In this state the exercise of the power by similar bodies does not seem to have been questioned until now, though the cases have been quite numerous.” State ex rel. Starkweather v. Common Council of Superior, 90 Wis. 619. Sufficient authority is there cited in support of such statements. See, also, State ex rel. Moreland v. Whitford, 54 Wis. 150; State ex rel. Sch. Dist. v. Thayer, 74 Wis. 48; State ex rel. Heller v. Lawler, 103 Wis. 460; 2 Bailey, Jurisdiction, §§ 433 et seq. 4. The question recurs whether, upon the facts so returned, the board was justified in removing the appellant from the office of custodian. The act in question prescribes the du [646] ties of the board, as indicated in the statement of facts, and also provides: “ The custodian elected under this act may be removed from office for misdemeanor, incompetency or inattention to the duties of his office, by a vote of two thirds of the board of trustees; the assistants and other employees may be removed by the board for incompeténcy or for any other cause.” Sec. 7, ch. 328, Laws of 1882. The returns show that the appellant was acquitted of the third charge, and that the board was unable to agree to a specific fin ding as to the sixth charge. The returns further show that “ by a vot.e of two thirds of the board of trustees ” the appellant was found guilty of the first, second, fourth, and fifth charges, respectively. As to the first charge, he was simply found guilty of official misconduct toward Carl Thal, and censured therefor. As to the fourth charge, he was found to be at fault, and censured therefor. Upon the second charge it was found, in effect, that in 1899 he purchased certain books from foreign book dealers, never authorized by the board of trustees, and which were in fact purchased by him for his personal use, but were charged' to the museum. Under the fifth charge it was found, in effect, that in May, 1898, he presented to the finance committee of the museum a bill for the payment of $1(3.11 freight and other charges from Uew York to Milwaukee on 660 pounds of books, all of which except thirty-six pounds were for himself personally, and that the finance committee and the board, being deceived by NeKrling in the matter, signed and allowed the bill. The board thereupon held that the evidence sustained “ the charges so far as to prove the misconduct, incompetency, and inattention to the duties of his office,” and hence removed him from the office of custodian. Counsel contend that Nehrling was not found guilty of a misdemeanor. But, as indicated, he is, in effect, found guilty of obtaining money from the museum by false pre [647] tenses and deceit and in violation of his duties and with intent to defraud. Such misconduct may fairly be regarded a misdemeanor. Secs. 4423, 3294, Stats. 1898. “Incompetency ” includes a lack of moral qualities, as well as intellectual,— a lack of fitness for the duties of the office. That is covered by the two findings last mentioned, and also by the finding on the first charge. It appears from such findings and the judgment of the board that Mr. Nahjing did not properly attend to the duties of his office as such custodian, and was properly removed. By the Court.— The judgment of the circuit court is affirmed.