Hartwig v. Mayor of Watertown

MARSHALL, J. The precise ground upon which the alternative writ was quashed does not appear. It may be because the relief sought, so far as it affected recognition of. the relator as entitled to participate in the proceedings of the common council as a member thereof, was obtainable by certiora/ri, which was a plain and adequate remedy, if, as [85] Maimed, the proceedings for his removal were jurisdiction-ally defective, and it may he that under all the circumstances it was thought best, in the discretionary power of the court, to deny the use of the mandamus remedy. Either ground, in the opinion of the court, is sufficient to sustain the judgment. This, unlike State ex rel. Gill v. Watertown, 9 Wis. 254, was not a proceeding to reinstate the relator. It was doubtless seen when the proceeding was instituted that the period of suspension would expire before the court could act in the matter. So reinstatement was not the object sought, but the purpose was to compel respondents to efface from the city records the evidence of the impeachment. In practical effect, except as to such effacement, a reversal of the determination of the council was sought, for jurisdictional error, which was readily obtainable by certiorari if relator’s contentions are sound. Manifestly, a common council cannot be required to destroy its official records. It was the duty of the clerk to make the record and qf the council to see that he did so. Therefore, no wrong was done in the performance of such duties. It is well settled that a writ of mandamus ought not to be used to perform the office, of a writ of certiorari. State ex rel. W. G. Taylor Co. v. Elliott, 108 Wis. 163, 84 N. W. 149. That is regarded as elementary, as will be seen by reference to 19 Am. & Eng. Ency. of Law (2d ed.) 750, and the numerous cases there cited in the notes. The action of the council did not inflict any pecuniary injury on the relator. So far as shown, he was not f'alsély accused. He did the things stated in the accusation. Whether they constituted legal grounds for his impeachment is another •question. This proceeding not having been commenced till about two thirds of the period of suspension had expired,the court probably concluded that he knew at the start the whole period of his suspension would expire and he be in full possession of his office before a peremptory writ could issue, leaving it no' substantial office to perform. ■ The case so [86] turned out. Before the matter was heard he regained his place and his term of office had expired. Under those circumstances there was, in any event, no absolute right to the mandamus remedy. It was within the discretion of the court to quash the alternative writ and end the proceedings as was done. State ex rel. G. B. & M. B. Co. v. Jennings, 48 Wis. 549, 4 N. W. 641; Neu v. Voege, 96 Wis. 489, 71 N. W. 880; 19 Am. & Eng. Ency. of Law (2d ed.) 751. By the Court. — The judgment is affirmed.