#### State ex rel. Kleinsteuber, Respondent, vs. Kotecki, Comptroller, Appellant.

*October 29*

November *18, 1913.*

*Officers: Resignation: When vacates office without acceptance:*De facto *officer: Right to salary: Receipt of pension: Municipal corporations: Fixing salary of new office: Time: Fire and police commission: Commissioners to belong to different political parties: Constitutional law.*

*1.*Where the term of an officer is during good behavior, subject to removal for cause, and there is no provision that he shall hold until his successor qualifies, the office becomes vacant under sec. 962, Stats., upon his resignation, without an acceptance thereof.

2. Where acceptance of the resignation of such an officer is refused and he continues to perform the duties of the office, he becomes a *de facto*officer and is entitled to the salary of the office if there is no *de jure*officer claiming it.

5. Under ch. 347, Laws of 1913 (amending sec. 925 — 31c, Stats.), the fact that a city officer is receiving a pension from a fund held by the city does not debar him from drawing the salary of his office.

4. In a statute (sec. 959it-46íí, Stats.: Laws of 1911, ch. 586) creating a board of fife and police commissioners in cities of the first class, a provision that not more than two of the five commissioners “shall at any time belong to the same political party” does not exclude any one from eligibility and does not render (the law unconstitutional.

*675. A municipal ordinance creating a new office, passed after the time at which the common council is required hy law to fix all. salaries, may nevertheless fix the salary of the office so created.

Appeal from a judgment of the circuit court for Milwaukee county: OrREN T. Williams, Circuit Judge.

*Affirmed..*

Eor tbe appellant there was a brief by *Daniel W. Moan,*city attorney, and *Wm. H. Timlin, Jr.,*and oral argument by *Mr. .Timlin.*

*Moritz Wittig,*for tbe respondent.

ViNJE, J.

This is an appeal from a judgment granting *m*peremptory writ of *mandamus*commanding tbe defendant, as comptroller of tbe city of Milwaukee, to audit and countersign tbe pay rolls of said city for the-months of April, May, June, and July, 1912, so far as the salary, at $15Q per month, of tbe relator, as superintendent of tbe police and fire alarm system, is concerned. The defendant demurred to tbe petition for an alternative writ on tbe ground that it did not state facts sufficient to constitute a cause of action, and upon tbe court’s overruling tbe demurrer judgment was granted as stated. Tbe appeal raises a number of questions which will be briefly noticed.

1. It is claimed that tbe relator is not entitled to his salary because tbe petition shows that on tbe 25th of April he presented bis resignation to tbe board of fire and police commissioners and that such resignation vacated tbe office. Counsel for relator cites a large number of cases bolding that a resignation without an acceptance does not vacate the office, and counsel for defendant cite many cases holding the contrary. Fortunately, sec. 962, Stats. 1911, settles tbe controversy. It provides: “Every office shall become vacant on tbe happening of either of the. following events: (1) Tbe death of tbe incumbent. (2) His resignation. ...” So it must be held that upon tbe filing of tbe resignation of the-*68relator tbe office was vacated, since bis term of office was during good behavior subject to removal for cause. There was no provision in the act creating the office that he should hold till his successor qualified, so the case does not fall under •the rule announced in *State ex rel. Wheeler v.*Nobles, 109 Wis. 202, 85 N. W. 367.

2. But the petition shows the board refused to accept the resignation and that the relator continued, to exercise the duties of the office up to the time of filing the petition. He therefore became a *de facto*officer from the time his resignation was filed, and having, performed the duties of the office, and there being no *de jure*officer claiming it, he was entitled to his salary under the rule of *State ex rel. Elliott v. Kelly,*154 Wis. 482, 143 N. W. 153.

3. The objection that he was debarred from drawing a salary because he received a' pension is negatived by ch. 347, Laws of 1913, amending sec. 925 — 31c, Stats., which 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. Provided, that for the purposes of this section moneys or funds held by any such city as pension funds shall not be considered or construed to be city money or funds, and that the payment to or receipt by any person of any money from any such funds shall not be construed as the payment or receipt of money or compensation from such city.”

4. It is claimed that ch. 586, Laws of 1911 (sec. 959— 46cZ, Stats.), which creates a board of police and fire commissioners in cities of the first class, and under which the relator was appointed, is unconstitutional, because it provides with reference to membership: “Not more than two of whom shall at any time belong to the same political party,” and the *69case of *Rathbone v. Wirth,*150 N. Y. 459, 45 N. E. 15, is cited to sustain tlie claim. The provision there considered was that no person “is eligible to the office of police commissioner unless at the time of his election he is a member of the political party or organization having the highest or next highest representation in the common council,” and it was held unconstitutional by a vote of four to three on the ground that it unlawfully limited the eligibility to the office to adherents of .the two political parties having the highest representation in the common council, and was an unreasonable restriction upon local self-government. The case of *Rogers v.*Buffalo, 123 N. Y. 173, 25 N. E. 274, was referred to and distinguished. There it was held that a provision in an act creating a civil service commission that “no more than two of whom shall be adherents of the same party” was valid because it provided merely for diversity of' representation and excluded no one, whether' an adherent of any, or of no, political party, from being eligible. That is precisely the case at bar. The law does not exclude any one from eligibility. On the other hand, its aim.is to compel reasonable diversity of representation. We are also referred to the cases of *Att’y Gen. v. Detroit Common Council,*58 Mich. 213, 24 N. W. 887; *State ex rel. Holt v. Denny,*118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65; and *Evansville v. State,*118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. In *Att’y Gen. v. Detroit Common Council*the provision was for the appointment of election inspectors consisting of two persons from each of the two leading political parties, and it was held to be in violation of the Michigan constitution, because it recognized only two political parties and made it a necessity for the appointments to be made from, and confined to, the members of those parties. -The New York court distinguishes the Michigan ease from *Rogers v. Buffalo*on that ground, because in the *Rogers Case,*as in the case at bar, there is no requirement that any member shall be chosen from any political party, *70nor does the provision in question disqualify one wbo belongs to *no*political party or make bim ineligible. Instead of being restrictive it is distributive in its effect. In *State ex rel. Holt v. Denny, supra,*a provision tbat officers and patrolmen of a fire and police department should be selected equally between two leading political parties was field unconstitutional. Tfie same provision was field unconstitutional in *Evansville v. State, supra.*Tfie Michigan and Indiana cases are clearly distinguishable from tfie case before us, and we have no hesitation in holding tfie law constitutional.

5. Tfie objection that tfie relator is not entitled to his salary because it was not fixed at tfie time when tfie charter requires the fixing of annual salaries is disposed of in favor of tfie relator by tfie case of *State ex rel. Elliott v. Kelly,*154 Wis. 482, 143 N. W. 153.

A number of other points are raised by tfie defendant, but they do not seem to be of sufficient importance to merit separate treatment. They have all been considered and field not to affect tfie merits of tfie judgment appealed from.

*By the Court.*— Judgment affirmed.

TimliN, J., took no part.