City of Milwaukee v. Reiff

Siebeckee, J. Oh. 376, Laws of 1897, is entitled “An act to fix the salary of the city clerk in all cities in this state having a population of one hundred and fifty thousand or more, and to require all city officers to file sworn pay rolls for the disbursements of all moneys appropriated for clerk hire or other service.” Sec. 1 of the act fixes the salary of the clerk of such cities at $2,500 annually; and sec. 2 provides that such salary shall be in full compensation for the services rendered by him in discharge of his official duties. By sec. 3 it is enacted: “The city clerk shall make the tax roll of such city as required by law, hut he shall receive no compensation for the same other than that provided in section one of this act, but he is hereby authorized to employ such expert assistants as he may deem necessary, the aggregate amount to be paid for such service to be determined by the common council and appropriated for such service from year to year.” In passing on the validity and nature of the act the trial court held, and we think the holding a proper and correct one: “If that chapter were a special act as claimed it would necessarily be unconstitutional. But its constitutionality is doubtless saved by the fact that it applies to all cities in the state of 150,000 population or more, and while at the time of the enactment there was and still is hut one city of that size in the state, it would apply to any city acquiring that size in the future, and is just, as general in its nature as are those provisions of ch. 40a of the Statutes applying to cities of the first class.” Adams v. Beloit, 105 Wis. 363, 81 N. W. 869 ; Johnson v. Milwaukee, 88 Wis. 383, 60 N. W. 270. It is clear that this law was valid as a general law and applied to the city of Milwaukee, and that the city clerk was required to make the tax roll, but it authorized him to employ experts to assist him in performing this service. Oh. 493, Laws of 1907, creates sec. 925 — 31c, Stats., and other sections. Sec. 1 reads: “There are added to the Stat [229] utes of 1898 new sections to read,” and enacts eight separate sections, making each one a subsection of sec. 925 of the Statutes. All of the various subsections of sec. 925 are a part of ch. 40a, Stats., which is entitled “Of the organization and government of cities under general law.” The city of Milwaukee, being incorporated by special charter, is of the class of cities covered by ch. 406, Stats., entitled “Of cities under special charter.” Sec. 925 — 31c (ch. 493, Laws of 1907) provides: “No officer or employee receiving a salary from any city, whether organized under general or special law, shall receive for service of any kind or nature rendered such city any compensation therefor other than the salary fixed and provided for such office. This act shall apply to all officials now serving or hereafter elected or appointed to public place.” The provisions of the act clearly apply generally to the various subjects with which they deal in all cities of the state, and the phrase “whether organized under general or-special law,” in this section, specifically indicates that the legislature intended this section to apply to all cities of the state, for there can be no city organized outside of the two specified classes, namely, those organized under the general charter law and those organized under special charters. The history of legislation shows that the legislature has incorporated provisions in ch. 40a which by express terms or by necessary implication apply generally to both classes of cities. There is no variance between the provisions of see. 925 — 31c and the provisions of the charter of the city of Milwaukee, and hence the provisions of secs. 4986 and 4987 have no controlling effect on the question here presented. Since, then, sec. 925 — 31c applies to and must govern the subject of this litigation in the city of Milwaukee, it necessarily follows that the payments made to Eeiff for services ite an expert in extending the city tax roll for the year 1912 were contrary to the express provisions of this act, in view of the fact that he was at the time [230] a city officer receiving an annual salary from the city. The moneys so received by him from the city were disbursed without any legal warrant or authority and are therefore recoverable in an action like this one. The payments having been made in violation of a law which forbade them renders the equitable doctrine such as ruled the case of Frederick v. Douglas Co. 96 Wis. 411, 71 N. W. 798, inapplicable here. The trial court properly sustained the demurrer to the answer. By the Court. — The order appealed from is affirmed.