State ex rel. Gillen v. Braman

Rosenberry, J. Two questions are presented: First. Does “Sec. 925 — 38&. The appointments to public office by the mayor of all cities shall be subject to confirmation by the common council, unless otherwise provided by law. An appointee to any office rejected by the common council shall be ineligible for. appointment to the same office for one year thereafter,” apply to the office of commissioner of public works for the city of Milwaukee? Second. If sec. 925 — 38b is applicable, did the action of the mayor intending plaintiff’s name to the common council April 20, 1920, at a time when the plaintiff was ineligible, amount in law to an appointment under the provisions of sec. 925 — 38b? Sec. 925 — 38b was enacted by the legislature of 1907 as a part of ch. 493 of the Laws of 1907. There was also created by said ch. 493 sec. 925 — 171a, which provided that “the park commissioners of all cities shall, under the direc [599] tion of the common council,” etc. In Superior v. Industrial Comm. 160 Wis. 541, 152 N. W. 151, it was held that ch. 493 of the Laws of 1907 was an act of general nature as to the cities of the state, and sec. 925 — 171a, therefore, applied to the city of Superior although it operated under a special charter. The plaintiff here urges very strongly that sec. 925 — 38b does not apply to the city of Milwaukee, which operates under a special charter. The main contention of the plaintiff upon this proposition is that by sec. 14, ch. XX, of the charter of the city of Milwaukee it is provided: “No general law of this state, contravening the provisions of this act, shall be considered as repealing, amending, or modifying the same, except such purpose be expressly set forth in such law.” Sec. 925 — 38b does not contravene any of the provisions of the charter of the city of Milwaukee. It is a general statute applicable by its terms to all the cities of the state and not in any sense in conflict with the charter of the city of Milwaukee. The decision of this court in Superior v. Industrial Comm. 160 Wis. 541, 152 N. W. 151, is decisive upon this branch of this case. Upon the second proposition little can be said. It is the contention of the plaintiff that the naming by the mayor of a person ineligible to the office is not an appointment within the meaning of sec. 925 — 38b, the act being wholly void. If we were to so construe the statute, we should be obliged, in effect at least, to insert the .word “eligible” before the word “appointee.” We do not feel that we are warranted in adopting such a construction. It was the apparent purpose of the legislation to prevent occurrences of the kind involved in this action. No limiting words were inserted ■before the word “appointee.” If a person, though ineligible, had in fact been appointed and the appointment confirmed, and he had, without objection, entered upon the duties of his office, there can be no doubt that he would have been at least [600] a de facto officer. If so, he must have been appointed and therefore must have been an appointee. We do not think that the question of whether or not a person is an appointee turns upon the question of his eligibility, but rather upon the fact of his appointment. From this it follows that the plaintiff was not eligible to appointment at the time his appointment was confirmed by the common council August 2, 1920. By the Court. — Judgment affirmed.