Clancy v. Board of Fire & Police Commissioners

WiNsnow, O. J. Thomas A. Clancy, chief of the fire department of the city of Milwaukee, was removed from office by the Board of Fire and Police Commissioners of Milwcm-leee after trial upon charges as provided by subsec. 19 of sec. 959 — 4Qd, Stats. (Laws of 1911, ch. 586). He thereupon brought action in the circuit court for Milwaukee county against the board to reverse their decision, as provided by subsecs. 20 and 21 of the same law, and upon trial thereof the circuit court reversed the judgment of removal, and the commissioners appealed to this court from such judgment of reversal. The respondent now moves to dismiss the appeal to this court on the ground that no appeal from the judgment of the circuit court is provided for by the law. The appellants, while contesting the motion to dismiss, make a motion — 633 — for the issuance (in the event of a dismissal of the appeal) of a-writ of certiorari out of this court directed to the circuit court for the purpose of reviewing the judgment, claiming that the circuit court had no jurisdiction because of the unconstitutionality of the act aforesaid. It seems to -us quite clear that no appeal lies from the decision of the circuit court. .The law creates a new remedy to meet a new situation. The principle is familiar that under such circumstances the remedy is exclusive and is subject-to th,e conditions and limitations which legislative wisdom has seen fit to throw around it. State ex rel. Cook v. Houser, 122 Wis. 534 (see p. 595), 100 N. W. 964. The right of appeal is purely statutory, and unless given it is withheld. Puffer v. Welch, 141 Wis. 304, 124 N. W. 406. It is true that our statutes in general terms authorize appeals from judgments in actions in the circuit court, and that the present proceeding is expressly termed an action in the law which creates it ■Examination of the provisions of the law, however, seems to indicate very conclusively that no appeal to this court was contemplated. In the first place, nothing is said about any such appeal, and this is the more significant because upon examination of somewhat similar'laws giving to circuit courts the right of review of the decisions of special tribunals, we find special provisions for appeal to this court industriously inserted. Kailroad Commission Law: Laws of 1905, eh. 362, sec. 16 (see. 1191 — 16, Stats.: Supp. 19.06) ; Public Utilities Law: Laws of 1907, ch. 499 (secs. 1797m — 1 to I797»&wkey;109, Stats.)', sec. 1797m — 69. See, also, secs. 1849, 1379 — 36, and 1299/, Stats. (1898), governing condemnation proceedings for railroad, drainage, and highway purposes. Much stronger than this mere negative inference, however, is the inference necessarily to be drawn from the positive provisions of the law itself. — 634 — Subsec. 22 provides that if tbe decision of tbe board is reversed bj tbe court tbe discharged man shall be at once reinstated in bis position and entitled to bis pay as if never discharged, and that if tbe decision of tbe board be sustained tbe order of discharge shall be final and conclusive in all cases. Tbe purpose to absolutely terminate tbe proceeding with tbe decision of tbe circuit court seems here very certain. Doubtless tbe probable demoralizing effect on tbe public service of long-drawn-out proceedings, during which time no permanent appointment could be made, was fully appreciated. Every clause of tbe law indicates tbe intention to make tbe entire proceeding as speedy as possible and yet give tbe accused person tbe right to fully make bis defense, and in view of tbe very significant provisions of tbe section last cited we entertain no doubt that tbe statute means, and was intended to mean, that tbe proceeding should be finally closed by tbe decision of tbe circuit court. It follows that tbe appeal will be dismissed. As to tbe motion for tbe issuance of a writ of certiorari, ■ different considerations arise. Tbe appellants’ contention is that tbe removal of such officers is purely an administrative or executive function and in no sense judicial, and cannot under tbe constitution be vested in tbe courts; that tbe law in band practically gives to tbe circuit court tbe power of removal, and hence is unconstitutional. We do not find it necessary to decide tbe question whether tbe power of removal of local officers is a function which can constitutionally be vested in tbe courts. Counsel urge that this question was decided in tbe negative by tbe case of State ex rel. Davern v. Rose, 140 Wis. 360, 122 N. W. 751, but an examination of that case shows that tbe question there presented was an entirely different one, and has only a remote bearing on tbe present ease, if indeed it has any bearing at all. — 635 — For many years tbe statutes of this state have provided for the removal of certain, administrative officers by judges of courts of record, and we are not aware that the constitutionality of these provisions has ever been attached. Circuit judges are authorized to remove the clerk of the circuit court (sec. 973, Stats. 1898), the county superintendent of schools (sec. 975), and town officers (see. 976). County judges are empowered to remove all school district officers (sec. 507). Circuit judges are also empowered to remove jury commissioners (sec. 2533a), and there may be other instances. However, we intimate no opinion upon the question. We ■do not consider that the law before us places the power of removal in the hands of the circuit court under any reasonable construction of its provisions. Subsec. 19 of the law provides for a hearing upon verified charges, and further provides that the board shall decide by majority votes whether-the charges are sustained, and if sustained shall at once determine whether the accused shall be removed, suspended from office temporarily, or reduced in rank. Subsecs. 20 and 21 provide for the commencement of an action such as the present by the removed officer against the commissioners in the circuit court, for the purpose of reversing the decision, and that the same shall be tried by the court without a jury upon the evidence returned by the board. Upon this retrial the only question to be reviewed by the court is the question, “Under the evidence was the decision of the board reasonable?” Sec. 21 further provides that the court may require a further or additional return to be made, and may also require the board “to take further and additional testimony and make return thereof.” • Taking the two sections together, it is plain that the legislative purpose was to require the board not only to decide whether the charges are sustained, but to make a decision which is reasonable under the evidence taken. The object — 636 — evidently was to require that tbe decision should not be whimr sical, capricious, or merely partisan, but a decision founded on some rational view of the evidence. It is equally plain, we think, that the legislative idea further was that, as a further safeguard against purely partisan decisions or predetermined decisions founded on no substantial grounds, the circuit court should have power to summarily review the trial and decision, not. for the purpose of deciding whether the officer was in fact guilty of the charges made, or whether the court would decide the same way upon the evidence, but simply whether the board had performed its statutory duty and made a reasonable decision upon the evidence, i. e. had acted not necessarily wisely but as reasonable men upon the evidence placed before them. In substance this appeal was intended to perform the functions of a writ of certiorari in a case where the writ is directed to a tribunal of this nature, namely, to review the evidence to ascertain only whether there was reasonable ground for the decision made. State ex rel. N. C. Foster L. Co. v. Williams, 123 Wis. 61, 100 N. W. 1048. It is a method provided by statute by which the power of superintending control which is vested in the circuit courts by the constitution is to be exercised. The constitution (art. VII, sec. 8) provides that the circuit courts shall have a supervisory control over all inferior courts and tribunals and shall have power “to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions.” While no formal writ issues in the present case and the proceeding is termed an appeal, it accomplishes the same result as though it had been commenced by the issuance of the ancient writ, and there can be no doubt of the legislative power to reach the desired end by procedure termed an appeal as — 637 — well as by an original common-law writ. It is true that by the last clause of subsee. 21 it is provided that the court may require the board to make a further return and also “to take further and additional testimony and make return thereof.” The appellants claim that this clause authorizes the circuit court to try and decide the case bn testimony which has never been considered by the board, and thus that in such cases the court is authorized to pass de novo upon the question as to whether the accused is guilty or not. We do not so construe the clause in question. It is true that there is no specific provision that the board shall consider the additional testimony, but that seems to us to be the only construction which fully harmonizes the clause with the general purpose of the other provisions regulating the appeal. That general purpose, as before said in this opinion, is clearly not to make the court a trier of the facts, but simply a trier of the question whether the board has acted reasonably on the evidence before them. To so construe the law as to permit the court to pass upon the question of guilt as an original question upon evidence never considered by the board would subvert its dominant purpose and should not be done unless unequivocal words require such construction. We do not think that such a case is presented here. While the law does not expressly say that the board shall report whether their decision remains the same as before or not, it requires that they make a return, and we construe this as meaning not only that they send up the evidence, but also return therewith their decision in the light of the additional evidence. If this were not the intention it would certainly be absurd to require the board to formally meet for the sole purpose of taking additional testimony when the same could be at once taken by the court itself, or by a single officer authorized to take depositions with far greater dispatch and far less trouble. The conclusions reached demonstrate that in acting under this statute the court neither removes an officer nor extends — 638 — bis term of office, — it simply decides whether the board has performed the duty imposed on. it by the statute. This question is purely judicial. There is no ground for a claim that the provisions attacked are unconstitutional. By the Oowrt. — Upon the respondent’s motion the appeal is dismissed with costs; appellants’ motion for the issuance of a writ of certiorari is denied without costs.