#### Johnson, Respondent, vs. City of Milwaukee and others, Appellants.

*November 16*

December *5, 1911.*

*Statutes: Municipal corporations: Optional amendment of charter: Adoption by city: Procedure: Officers: Appointment: Civil service law: Official bonds: Illegal payment of salary: Injunction: Taxpayer's action: Curative statute.*

1. An option law, such as ch. 297, Laws of 1907, creating the office of commissioner of public works in all cities of the first class, hut providing that it shall not take effect in any city until approved “by a majority vote of the members elect of the common council,” is valid.

2. The only prerequisite to the adoption of such act by a city is the approval thereof by the vote stated; and action upon the *477resolution of approval is not governed, by tbe procedure prescribed in tbe city charter for tbe adoption of resolutions appropriating money or creating a charge against funds of tbe city, such as reference to a committee, action on its report at a subsequent meeting, consent by tbe mayor, etc.

3. The superintendent of street construction who, under said cb. 297, Laws of 1907, is to be appointed by tbe commissioner of public works, is not, within tbe meaning of tbe civil service law (cb. 313, Laws of 1895), tbe “bead of any *’principal*department” of tbe city, nor, since be himself is required to give a bond directly to tbe city for tbe faithful discharge of bis duties, is be an “officer for tbe faithful discharge of whose duties a superior officer [tbe commissioner] is required to give a bond.” Such superintendent must therefore be appointed in tbe manner provided by tbe civil service law.

4. Payment of salary to a city official appointed in violation of tbe civil service law is an unlawful disbursement of public funds and may be restrained by a court of equity at tbe suit of a taxpayer. Such an action is not primarily an action to try title to an office, and where there is no rival claimant tbe question of title is involved in an incidental way only.

-5. Ch. 352, Laws of 1911, purports only to cure acts defectively done by tbe city and not omissions of duty by tbe commissioner of public works, and it therefore does not validate tbe appointment by such commissioner of a superintendent of street construction in violation of tbe civil service law.

Appeal from an order of tbe circuit, court for Milwaukee •county: E. 0. Esohweilee, Circuit Judge.

*Affirmed.*

On April 19, 1910, tbe common council of tbe city of *Milwaukee*passed tbe following resolution:

“Whereas, tbe city of *Milwaukee*is a city of tbe first class,

“Eesolvcd, by tbe common council of tbe city of *Milwaukee,*tbat, pursuant to tbe power and authority conferred by chapter 297 of tbe Laws of Wisconsin for tbe year 1907, entitled 'An act providing for tbe office of commissioner of public works in all cities of the first class, whether organized under special charter or under tbe general law,’ this common council, by majority vote of its members elect, hereby approves, incorporates and adopts as a portion of tbe city charter of tbe city of *Milwaukee,*said chapter 297 of tbe Laws of Wisconsin for tbe year 1907 (appearing as chapter Y of tbe Milwau*478kee city charter supplement, 1908), relating to the creation of the office of commissioner of public works in all cities of the first class and providing that such commissioner shall succeed within sixty days after his appointment to all the duties, powers, rights and privileges of the present board of public works in such cities. The true intent, purpose and effect of this resolution is to approve, adopt and put in full force and effect from and after the date of the passage of this resolution, said chapter 297 as a part of the charter of said city of *Milwaukee*

On April 22, 1910, such resolution was approved by the mayor, and thereafter the mayor, by communication in writing to the common council, appointed H. E. Briggs as commissioner of public works. Said Briggs filed his oath of office and official bond and entered upon his duties. On August 15, 1910, by communication in writing, Briggs advised the common council that he had appointed *O. A. MvZlen*as superintendent of street construction and repairing. On August 1, 1910, an ordinance was reported to said common council fixing the salary of such superintendent at $3,000 a year, and providing that he give bond in the sum of $10,000. This ordinance was passed August 15, 1910, and later approved by the mayor, and the defendant entered upon his-duties as superintendent.

Plaintiff brought this action as a taxpayer to restrain the defendant city and its treasurer and comptroller from paying the salary of the defendant *Mullen.*The complaint alleged that the appointment was not made in accordance with the provisions of the civil service laws of the state applicable to the cities to which the act applies, nor in accordance with tlm provisions of the charter of the defendant city, in that said *Mullen*had not resided in the city for one year next preceding such appointment, had never passed an examination in accordance with the civil service laws, and had not resided in the city of *Milwaukee*a sufficient length of time to entitle *479him to take such examination. The complaint further alleged that ch. 297, Laws of 1907, had never been legally adopted by the common council of the city of *MihvavJcee.*

Defendants demurred to the complaint on the ground that 'the court had no jurisdiction of the persons of the defendants in this action; that the court had no jurisdiction of the subject of the action; and that the complaint did not state facts sufficient to constitute a cause of action. Such demurrer was overruled, and from the order overruling the demurrer this appeal is taken.

*Daniel W. Hoan,*city attorney, for the appellants, argued that *quo warranto,*not injunction, was the proper remedy,

citing secs. 3463, 3466, 3475, Stats. (1898); Ward *v. Sweeney,*106 Wis. 44, 82 1ST. W. 169; *State ex rel. LocTc-schmidt v. Eaisler,*133 Wis. 672, 114 3ST. W. 118; *Huels v. Hahn,*75 Wis. 468, 44 U. W. 507; *State ex rel. Mercer v. Sullivan,*83 Wis. 416, 53 1ST. W. 677; *State ex rel. Anderton v. Kempf,*69 Wis. 470, 34 1ST. W. 226; *Burgess v. Davis,*138 Ill. 578, 28 1ST. E. 817; *Nelson v. Superior,*109 Wis. 618, 85 LT. W. 412; McCrary, Elections (4th ed.) §§ 386, 393, 397; and other cases. The appointment did not create any liability or “charge” against the city. There can be no salary unless created and fixed by law. *State ex rel. Milwaukee v. Milwaukee B. B. & L. Co.*144 Wis. 386, 129 U. W. 623; *Richards v. Enfield,*13 Gray, 344; *White v. Levant,*78 Me. 568, 7 Atl. 539; *Wood v. Board of Comm’rs,*125 Ind. 270, 25 U. E. 188; *State ex rel. Lirm Co. v. Adams,*172 Mo. 1, 72 S. W. 655; *State ex rel. Axen v. Meserve,*58 Ueb. 451, 78 1ST. W. 721; *Qioaw v. Faff,*98 Wis. 586, 74 1ST. W. 369. The appointee was either head of a department or a subordinate officer for whom his superior had to give bond; hence he was not within the civil service act. *Butler v. Milwaur kee,*119 Wis. 526, 97 1ST. W. 185.

*G. H. Hamilton,*for the respondent.

*480BaeNes, J.

Tbe resolution adopting cb. 297, Laws of 1907, was passed by tbe common council of tbe city of *Milwaukee*on tbe day upon wbicb it was introduced and at tbe same meeting, and without reference to any committee.

Sec. 5 of cb. IV of tbe charter of tbe city of *Milwaukee*provides that:

> “All resolutions appropriating money, or creating any charge against any of the funds of said city or wards, and all accounts and ordinances, shall be referred to appropriate committees and shall only be acted on by tbe common council at a subsequent meeting not held on tbe same day, on tbe report of tbe committee to which tbe same were referred.”

Tbe trial court held that, inasmuch as cb. 297, Laws of 1907, created a number of salaried offices not before in existence, its adoption created a *“charge”*against tbe funds of tbe city and that tbe charter provisions should have been followed in passing tbe resolution adopting tbe law, and, not having been followed, it was never legally adopted, and tbe offices provided for therein were never lawfully created.

We cannot adopt tbe view of tbe law taken by tbe learned circuit court. Ob. 297, Laws of 1907, is an option law pure and simple. Tbe right of tbe legislature to pass such a law is settled beyond controversy in this state. Tbe right of tbe legislature to pass any constitutional law amending tbe charter of cities of tbe first class is of course conceded. Tbe legislature might have passed tbe law without tbe option feature and it might have provided that tbe act should not become operative until tbe electors voted to adopt tbe same, or until a maj ority or some maj or fraction of a maj ority of tbe common council so voted, or until tbe mayor and common council so voted. Tbe act itself we think quite plainly prescribes what should be done. It provides:

> “Sec. 20. This act shall take effect and be in force from and after tbe first day of January, 1908, provided that before this act shall be in effect in any city to wbicb it applies, it *481must first Rave been approved by a majority vote of tRe members elect of tRe common council of sucR city.”

TRe only prerequisite to its adoption was tRat it sRould receive tRe approval of a majority of tRe common council elect, and it did receive sucR approval. TRat tRis law did not contemplate tRat tRe passage of tRe resolution adopting it sRould be governed by tRe procedure prescribed for adopting resolutions under tRe city cRarter is quite manifest. SucR resolutions must be signed by tRe mayor, or, if vetoed by Rim, must be passed over Ris veto, if at all, by a two-tRirds vote of all tRe members elect. Sec. 7, cR. IV, Milwaukee CRarter. ISTow tRe law of 1907 does not provide for any consent by tRe mayor, and it was wholly immaterial whether Re gave Ris consent to tRe resolution adopted or not. Any other conclusion would lead to this anomalous and incongruous situation: the resolution might Rave been adopted by the council and vetoed by the mayor and Rave failed to receive the necessary two-thirds vote to pass it over Ris veto, although a majority of the members of the council so voted. If respondent’s contention is correct the law would not be adopted, because the resolution for adoption could not be passed under the cRar-ter provisions, though by its very terms the law was to become operative if approved by a majority vote of the members elect of the common council. We conclude that the law was legally adopted and that the offices therein provided for were legally created. It is therefore unnecessary to consider the effect of cR. 352, Laws of 1911 (sec. 926 — 175, Stats.), which was designed to cure any defect or informality inherent in the attempted adoption of the act of 1907.

TRe trial court further Reid that the appellant *Mullen*was appointed by the commissioner of public works in violation of the civil service law applicable to the city of *Milwaukee.*Appellants contend that the court was in error because the office or place to which *Mullen*was appointed was exempt from the operation of the civil service law, and because a court of *482equity Rad no power to enjoin tRe payment of tRe salary of a *de facto*officer. TRe law of 1907 makes all appointments of tRe commissioner of public works except Ris deputy subject to tRe civil service law applicable to tRe city of *Milwaukee.*Secs. 4, 8, and 12 of said cR. 297. TRat law (cR. 313, Laws of 1895) exempts from its provisions “Reads of any principal departments of tRe city” and “officers and clerks for tRe faitRful discRarge of wRose duties a superior officer is required to give a bond.” It is conceded by tRe appellant tRat unless tRe office or position to wRicR *Mullen*was appointed (tRat of superintendent of street construction and repairing) comes witRin one of tRe above exceptions, tRe appointee sRould Rave been cRosen from tRe eligible list of tRe civil service commissioners. We do not think that the superintendent of street construction and repairing is the Read of a principal department of the city. TRe department of public works would no doubt answer such a description, but the appellant *Mullen*is but one of four subordinate officers who are subject 'to the direction and control of and who are appointed by and perform their duties under the immediate supervision of their superior officer, the commissioner of public works. They are Ris assistants and not Reads of principal departments. It is true the law says that each shall Rave charge of Ris respective department, but it also says that all shall be under the direction and control of the commissioner. Sec. 8, cR. 297, Laws of 1907. TRe departments over which they preside are integral parts of the principal department over which their superior officer presides. TRe word *“principal”*in the civil service law quoted must be given effect, and it is obvious here that the department over which *Mr. Mullen*presides is subsidiary to that presided over by the commissioner.

Neither do we think that the commissioner of public works is required to give a bond for the faitRful discRarge of their duties by the superintendents whom Re appoints. TRe law *483specifically provides that these superintendents must themselves take and file an oath of office and furnish a bond “for the faithful discharge of their respective duties, in such amount and with such sureties as the common council of such city may prescribe.” Sec. 8. The complaint alleges that *Mullen*did furnish a bond in the sum of $10,000. Had there been no requirement that the superintendents furnish bonds directly to the city, there might be a great deal of force in the claim that the commissioner was liable for their acts on his bond. *Butler v. Milwaukee,*119 Wis. 526, 97 N. W. 185. But surely the legislature did not intend that these appointees should be bonded twice and that the commissioner should also be liable on his bond for their acts. We conclude that the superintendent of street construction and repairing should be appointed in the manner provided by the civil service law for the selection of public servants coming under its provisions.

However, it is strenuously argued by counsel for appellants that in reality the action is one to try title to office, and that an action at law in the nature of a *quo warranto*is not only the appropriate bnt is the exclusive remedy to secure the relief here sought. Many cases are cited which hold that equity will Hot take jurisdiction of a proceeding to try title to office, and, generally speaking, that it will not enjoin the payment of the salary of a *de facto*officer because such a suit would involve the title to the office. The question raised is one that was necessarily passed on in *Butter v. Milwaukee,*119 Wis. 526, 97 N. W. 185, although it was not discussed. There the court took jurisdiction of just such an action as is here brought, and affirmed the judgment on the merits. Counsel may be justified in believing that the question was not considered because not discussed, and that if such was the case the decision should not carry any great weight as a precedent. Still, wre think it carries to a legitimate conclusion a principle that is well established by the decisions of *484this court. The payment of salary to *Mullen*by the treasurer of the city of *Milwaukee*was a plain, palpable violation of the civil service statute. Secs. 13, 17, and 18, ch. 313, Laws of 1895. This is not intended as any criticism on the treasurer, because he may in good faith have believed that *Mr. Mullen*was exempt from the operation of the civil service law. That question has been resolved against him, however; so that every time the treasurer paid any salary to *Mullen*he was disbursing public funds in defiance of positive law. This court has many times held that it would enjoin the unlawful expenditure of public funds- at the suit of a taxpayer. *Peck v. School Dist.*21 Wis. 516; *Nevil v. Clifford,*55 Wis. 161, 12 N. W. 419; *Beyer v. Crandon,*98 Wis. 306, 73 N. W. 771; *Webster v. Douglas Co.*102 Wis. 181, 77 N. W. 885, 78 N. W. 451; *Mulberger v. Beurhaus,*102 Wis. 1, 78 N. W. 402; *Land, L. & L. Co. v. McIntyre,*100 Wis. 245, 75 N. W. 964; *Kircher v. Pederson,*117 Wis. 68, 73, 93 N. W. 813; *St. Croix Co. v. Webster,*111 Wis. 270, 273, 87 N. W. 302; *Siegel v. Liberty,*111 Wis. 470, 473, 87 N. W. 487; *Linden L. Co. v. Milwaukee E. R. & L. Co.*107 Wis. 493, 503, 83 N. W. 851; *Allen v. Milwaukee,*128 Wis. 678, 687, 106 N. W. 1099; *Balch v. Beach,*119 Wis. 77, 86, 95 N. W. 132. Many other cases of like tenor are cited in the foregoing decisions. In this connection it might be said that there is no rival claimant for the office of street superintendent. The question of title to office is involved in an incidental way only. The grievance that plaintiff urges is that public moneys are being expended contrary to law. In proving his ease the plaintiff will be obliged to show that *Mullen*was never legally appointed to the office which he holds, but this does not necessarily make the action one to try title to office. Primarily it is not such an action. The rule here announced will, we conceive, be the one best calculated to secure efficient administration of our civil service laws. The curative act (ch. 352, Laws of 1911) does not validate or attempt to validate the *485appointment of *Mullen.*It purports only to cure acts defectively done by the city, and not omissions of duty by the commissioner of public works, and it is evident that it was not the legislative purpose to modify or disregard the civil service law applicable to *Milwaukee,*and in effect to make an appointment to office, assuming that it had the right to appoint a street superintendent for the city of *Milwaukee,*a point which we do not decide. The conclusion reached ob-' viates the necessity of deciding whether *Mullen*was ineligible because not a qualified elector of the state at the time of his appointment and attempted qualification. It follows that the complaint states a cause of action and that the order appealed from should be affirmed.

*By the Court.*— Order affirmed.