November 4, 1953 —
December 1, 1953.
APPEAL from a judgment of the circuit court for La Crosse county: ARTHUR W. KOPP, Circuit Judge, Presiding. Modified and, as modified, affirmed.
For the appellant there were briefs by Hale, Skemp, Nietsch, Hanson Schnurrer of La Crosse, and oral argument by Thomas H. Skemp.
For the respondents there was a brief by Johns, Roraff, Pappas Flaherty of La Crosse, and Fred E. Steele, city attorney, and oral argument by Robert D. Johns.
Plaintiff's complaint prayed that the court enter a declaratory judgment which would hold a certain resolution, adopted by the common council of the city of La Crosse, to be null and void and which would enjoin the persons to whom the resolution was directed from carrying out its provisions. The defendants answered and then moved for summary judgment upon the pleadings and numerous affidavits filed by the parties. Defendants' motion was granted and judgment was entered dismissing the complaint. Plaintiff has appealed.
The plaintiff is a police officer of the city of La Crosse. The defendants are the mayor, city attorney, chief of police, and members of the common council. The record shows that for a comparatively long time the plaintiff had been in disfavor with some of his superiors in the police department and with other administrative city officials. Charges had been filed against him with the board of police and fire commissioners of the city and hearings had been held upon such charges. These hearings ended when the board found itself unable to maintain order at them. The board reported that, because of the misconduct and intimidation attending the hearings, it could not fairly determine the issues contained in the charges and, therefore, disqualified itself from further hearing, declared a mistrial and a dismissal of the charges against the plaintiff without determination of the issues or prejudice to either party. Shortly thereafter the entire board resigned.
In the meantime, the common council had set up a "special investigating committee" which concerned itself with the plaintiff's affairs, and when the hearing before the police and fire commissioners broke down this committee recommended the following resolution to the common council.
"Whereas the La Crosse common council did charge that such committee be and the same is hereby directed to conduct an investigation of the affairs of the city of La Crosse and especially the relationship of any department of the city of any officer or employee thereof in the promotion, participation, or assistance given to and about any unlawful enterprise or practice in the city of La Crosse which might be contrary to the peace and good morals of the city with reports of its findings to be made to the common council; and
"Whereas one of the departments of the city of La Crosse is that of the police department and that one of the officers of this department recently was the defendant in a hearing held before the police and fire commission on charges filed by an elector of said city; and
"Whereas the police and fire commission, in its decision ruled dismissal of the charges against defendant James D. Christie without determination of the guilt or innocence and disqualified itself from further hearing of said charges, declaring a mistrial; and
"Whereas the special investigating committee has held several meetings and interviewed a number of individuals on this matter, including members of the police and fire commission; and
"Whereas the police and fire commission has now tendered their resignations which we believe to be in the best interest of all concerned;
"Therefore, be it resolved: That the mayor of the city of La Crosse shall appoint a new commission forthwith.
"Be it further resolved that no complete investigation relative to the lack of co-operation and morale in the entire police department can be accomplished unless the Christie matter is first disposed of.
"Be it further resolved that the common council direct the chief of police to commence proper proceedings in the Christie case immediately by filing charges to be prosecuted by the city attorney. . . .
"Be it further resolved that all records of the police and fire commission including the pleadings, exhibits, documentary evidence, and all other papers in the hands of the retired commission shall be immediately delivered to the city clerk to be kept in her custody in the vaults of the city of La Crosse and made available to the new police and fire commission and to the special investigating committee upon request and the signing of the proper receipt therefor."
The council adopted this resolution January 15, 1953, and on the next day plaintiff commenced this action.
The first contention to be dealt with on this appeal, as stated by plaintiff-appellant, is that the resolution violates the constitutions of the state and nation because it is a bill of attainder, forbidden by such constitutions, in that it affects only one person and directs proceedings against him. Appellant cites Cummings v. Missouri (1866), 71 U.S. 277 (4 Wall.), 18 L.Ed. 356, on this point but the citation does not sustain him. The case's headnote definition is, "A bill of attainder is a legislative act which inflicts punishment without a judicial trial." The opinion, page 323, goes into greater detail. Referring to bills of attainder, it says:
"In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the textbooks, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense."
11 Am. Jur., Constitutional Law, p. 1175, sec. 347, and 16 C.J.S., Constitutional Law, p. 902, sec. 452, use the language of the Cummings Case, supra, to define bills of attainder. A comparison of the resolution in question with these specifications is sufficient to demonstrate how lacking the resolution is in the attributes of a bill of attainder.
Appellant submits that the action of the common council is invalid because it deprives him of the equal protection of the laws and denies him due process of law, contrary to the guaranties of the Fifth and Fourteenth amendments to the constitution of the United States. If a policeman's conduct is deemed objectionable by any party interested in it, sec. 62.13(5), Stats., prescribes the course of disciplinary measures. There must be written charges made either by the chief of police or any elector, a public hearing before the board of police and fire commissioners and a right of appeal by the accused from the determination of the board to the circuit court. We consider that the statutory procedure, which must be followed before any removal or other punishment of a police officer may be imposed, complies with the requirements of the Fifth and Fourteenth amendments. None of these safeguards are impaired by the resolution which only directs the chief of police to set the statutory program in motion. Unless we can find that the appellant has somehow acquired immunity and cannot be held to account for his conduct in the manner provided by law, we may not find that the council, by requiring him to account in that manner, has deprived him of any guaranteed rights. We cannot find any such immunity nor, consequently, any violation of the Fifth and Fourteenth amendments, supra, in the adoption of the resolution or in its operation.
Appellant contends next that by the resolution the legislative branch of the city government invaded the executive and judicial prerogatives in violation of the constitutional principle of the independence of the three branches. The common council has not attempted to perform any of the functions of the other divisions of government. It has pointed out what it considers the duty of executive officials, the mayor and chief of police, and directed them to get busy. The duties of the mayor will be touched upon later.
"The chief of police shall have command of the police force of the city under the direction of the mayor. It shall be his duty to obey all lawful written orders of the mayor or common council. . . ." Sec. 62.09(13), Stats. We are unable to find anything unlawful in this direction by the council to the chief in a matter concerning his department, nor has he or any other representative of the executive branch complained that the functions of that branch are thereby invaded by the city legislature. The same situation was presented in La Abra Silver Mining Co. v. United States (1899), 175 U.S. 423, 20 Sup. Ct. 168, 44 L.Ed. 223. There congress directed the attorney general to commence an action to determine whether or not a claim which had been allowed by arbitrators against the Republic of Mexico was in fact fraudulent. The mining company contended that this legislation was an invalid interference with the constitutional separation of executive and legislative powers. The supreme court of the United States held that it was not. We hold that the resolution, stopping where it did, was not void as an unconstitutional interference by the common council with the functions of another branch of the city government.
Lastly, appellant submits that the trial court erred in determining that there was no issue of material fact to be tried. He points out that his complaint alleges that the common council's action damaged him and defendants' answers denied it, wherefore the existence of damage is an issue for trial. We consider that the presence or absence of such incidental damage is not material to this suit, which seeks to declare the council's action null and void and to enjoin certain acts. Directions to investigate and determine charges preferred against police officers, as provided by statute, are not to be held null and void nor such proceedings enjoined upon a showing that damage will occur to the accused person. We might as well hold that courts could enjoin arrests and prosecutions for crime for the same reason.
Appellant also submits that the political motives of the defendants in this matter and the possibilities of collusion among them in order to deprive him of his job have been put in issue and demand a trial. It is axiomatic that the courts may not investigate the motives of those who enacted legislation. 11 Am. Jur., Constitutional Law, p. 818, sec. 141. State ex rel. Rose v. Superior Court of Milwaukee County (1900), 105 Wis. 651, 677, 678, 81 N.W. 1046; Rosenberg v. Whitefish Bay (1929), 199 Wis. 214, 218, 225 N.W. 838. If the court may not do this the motives behind the adoption of the resolution are immaterial and disagreement concerning them does not present an issue of fact for trial.
We find no error in the learned trial court's refusal to declare the resolution null and void.
The trial court also declined to enjoin the defendants from enforcing or attempting to enforce the resolution. An examination of the resolution shows:
(1) That the chief of police is directed to commence proper proceedings by the filing of charges to be prosecuted by the city attorney. The chief is responsible for the discipline, good order, and efficiency of the police department. As such, it is one of his duties to file charges against departmental offenders when he considers their conduct is detrimental to the public service. Sec. 62.13(5)(b), Stats., authorizes him to do so. How is a court to enjoin him from filing charges in obedience to the resolution without enjoining him from the plain performance of his duty if he thinks, now or in the future, that appellant's behavior and the public interest call for such charges to be filed? We conclude that no injunction should have been granted concerning the chief's duty.
The city attorney shall conduct all the law business in which the city is interested. Sec. 62.09(12), Stats. He is the logical and proper official to prosecute such charges as may be filed by a department head against a subordinate. There may be occasions when his duty lies elsewhere but, clearly, the court should not enjoin him from performing this obvious function of his office. We agree with the trial court in its denial of this feature of the injunction.
(2) The resolution directs that the records and papers of the retired police and fire commission be delivered to and kept by the city clerk to be made available to the succeeding commission to be appointed and the council's special investigating committee. We can find no logical objection to this direction nor any cause for enjoining its performance. There was no abuse of discretion by the trial court in denying the injunction here.
(3) The resolution states that the members of the existing commission have resigned and directs the mayor to appoint a new one. Sec. 62.13(1), Stats., provides that each city shall have a board of police and fire commissioners appointed by the mayor. Sec. 17.23(1)(d) provides that the mayor shall fill vacancies. The mayor is required by statute to do the thing which the complaint asks the court to forbid. The court properly refused to enjoin him from performing his statutory duty. The resolution called attention to his duty and directed its performance. The council did not attempt to make the appointments and did not invade the mayor's function.
The complaint alleges, in effect, that the plaintiff has vindictive and persistent enemies in the police department and in the city government, that they are persecuting him by pressing charges against him, and that the council's resolution directing charges to be filed is a part of the program. It appears in the record that all the defendants are electors of the city. As such, they, individually and privately, may file charges against appellant under the authority of sec. 62.13(5)(b), Stats. If the court should enjoin the filing of charges by any defendant in an official capacity each of them could exercise the right of an elector and, as a private citizen, file the same charge without violating the injunction. The granting or refusal of an injunction lies in the sound discretion of the trial court. Madison G. E. Co. v. Public Service Comm. (1947), 250 Wis. 59, 62, 26 N.W.2d 285. Certainly, there is no abuse of discretion by that court in refusing to issue an injunction when, as clearly as it appears here, the thing which the injunction was designed to prevent could still be done without violating the injunction.
A similar condition affects the trial court's refusal to grant declaratory relief. If every demand of the complaint was granted, plaintiff's opponents retain the right to prefer charges against him as electors. Sec. 269.56(6), Stats., reads:
"The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding."
Here, again, the pleadings and affidavits demonstrate that the judgment which the complaint prays would not terminate the controversy and the court did not abuse the discretion, specifically given it by statute in such cases, in refusing the declaratory judgment which the complaint demanded.
Respondents have moved to review that part of the judgment dealing with costs, entered as follows: "It is adjudged that the plaintiff's complaint be stricken and dismissed, and that the defendants recover $10 as and for their costs of this motion." We consider that it was error to treat the granting of judgment as a mere motion and to allow only motion costs thereon to the prevailing party. We recognize that costs are largely in the discretion of the trial court, but it appears that the court was not exercising discretion but was proceeding on the mistaken assumption that the motion made, and not the judgment rendered, governed the costs recoverable. Judgment costs, not motion costs, should have been allowed to the defendants as directed by sec. 271.03, Stats. In other respects the judgment is affirmed.
By the Court. — Judgment modified remanding the record to the trial court with directions to allow costs to defendants in compliance with sec. 271.03, Stats., and, as so modified, the judgment is affirmed.