town, city, village, or school district. Com-been the legislative intent that a clerk once plainant therefore is competent to maintain duly elected should hold office till his sucthe action. [2] It is urged the complaint is defective, because it does not allege the number of legal votes cast, nor does it state in what respect the certificate of election of the defendant was improperly or illegaly issued, as required by section 3468, Stats. 1913. The statement in the complaint that the electors of the district cast 602 votes, of which the defendant received 301, must, upon demurrer, be construed equivalent to an allegation that 602 legal votes were cast, and that the defendant received 301 legal votes. The complaint, therefore, sufficiently shows in what respect defendant's election was illegally declared; for subdivision 3, § 430, Stats. 1913, requires a majority to elect. It shows that defendant was declared elected upon less than a majority of the votes, and for that reason he was not lawfully elected. cessor is elected or appointed, and for a period of ten days thereafter if his successor does not qualify within that time, but no longer without a re-election or reappointment. This construction is in consonance with the provisions of section 443, relating to the treasurer, and prevents a vacancy in case of a failure to elect. It is also in harmony with the general rule that an officer hold his office till his successor is elected or appointed and qualifies. The reason for such a rule is that there may always be an incumbent to discharge the duties of the office. Since the complaint shows that there was no lawful election of a successor to the defendant at the annual school meeting in 1913, he holds over by force of statute, and the demurrer was properly sustained. Order affirmed. WINSLOW, C. J., dissenting. STATE ex rel. BALLARD v. GOODLAND, (Supreme Court of Wisconsin. Jan. 12, 1915.) Laws 1911, c. 337 (St. 1911, § 1317m4, subd. 3), requiring a town supervisor to levy a tax pursuant to its provisions, being unconstitutional, imposed no enforceable legal duty, but the duties of the supervisor remained as defined by existing valid laws. [Ed. Note.-For other cases, see Statutes, Dec. Dig. § 63;* Constitutional Law, Cent. Dig. § 47.] 2. CONSTITUTIONAL LAW (§ 306*)-DUE PROCESS OF LAW-REMOVAL FROM OFFICE. St. 1913, § 976, authorizing the judge of the circuit court to remove any town officer whenever in his opinion it is shown that he has been guilty of willful neglect of duty, upon charges preferred by a taxpayer and elector, implying the duty to hear evidence and determine the existence of facts which are cause for removal, does not violate the requirement of due [3] This brings us to the crucial question of the case, and that is: Does defendant lawfully hold over? Section 431, Stats. 1913, provides that school officers shall "hold their respective offices for three years and until their successors have been elected or appointed, but not beyond ten days beyond the expiration of their term of office without being again elected or appointed." Under the language of the above section, is the term of office of a school officer "three years," or is it "three years and until their successors have been elected or appointed"? Clearly they cannot lawfully hold office more than ten days beyond their term. If the clerk's term of office was "three years," then he was unlawfully intruding into the office, for more than ten days had elapsed since his term expired. On the other hand, if his term of office was "three years and until his successor had been elected or appointed," then the complaint shows he is lawfully holding over, for it negatives an election or appointment of a successor to him. It must be confessed the language of the statute is not very clear, and is susceptible of either construction. But, in view of other statutory provisions relating to school officers, we have reached the conclusion that the term of office of a clerk or director does not expire till his successor has been elected or appointed. The treasurer holds his office till his successor shall be elected or appointed and qualified. Section 443, Stats. 1913. A person elected to a school office has ten days within which to notify the clerk that he will not serve (section 431, Stats. 1913) and one appointed has five days in which to notify the clerk (section 433, Stats. 1913). No provision for a vacancy is Certiorari by the State on the relation of made in case of a failure to elect, though Clinton Ballard, against John Goodland, Cirprovisions are made for other contingencies. cuit Judge, to review an order removing reSee section 433a, Stats. 1913. In view of lator from office as Chairman of the Board these statutory provisions, it seems to have of Supervisors of the Town of Grand Chute. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes process of law. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 928, 936, 939, 942946, 948, 949; Dec. Dig. § 306.*] 3. CERTIORARI (§ 18*)-CIRCUIT COURT-JuRISDICTION-SPECIAL PROCEEDINGS. Const. art. 7, § 8, gives the circuit courts jurisdiction of all tribunals acting in a quasi judicial capacity, and it was proper for the circuit court to issue its writ of certiorari in a proceeding by the judge of that court to remove a town supervisor pursuant to St. 1913, § 976, to review his action in removing such officer. [Ed. Note. For other cases, see Certiorari, Cent. Dig. §§ 28-30; Dec. Dig. § 18.*], Appeal from Circuit Court, Outagamie County; John Goodland, Judge. Morgan & Benton, of Appleton, for appellant. A. M. Spencer and Julius P. Frank, both of Appleton, for respondent. TIMLIN, J. Proceeding under section 976, Stats. 1913, the circuit judge removed the relator from his office as chairman of the board of supervisors of the town of Grand Chute, Outagamie county, because Mr. Ballard had refused to levy a tax of $1,800 upon the taxable property of his town, pursuant to the provisions of chapter 337, Laws of 1911, otherwise subdivision 3 of section 1317m4, Stats. 1911. No From a judgment of the circuit court, af- scribing the procedure for removal. [ firming order of removal, relator appeals. one would contend that removal from office Reversed and remanded, with directions to by quo warranto or by impeachment is an reverse and to dismiss the proceeding. administrative act. Generally speaking, proceedings to remove municipal officers are ad ministrative. The Legislature may, in the absence of constitutional restriction, confer the power of removal of officers upon an administrative tribunal. Express statute may provide for summary removal, without charges and without hearing. But the statute may require the quasi judicial action of an administrative tribunal in order to remove, as where the statute expressly or by fair implication confers upon such tribunal the power and duty to hear evidence and determine the existence of facts which are cause for such removal. In the latter case [1] Section 976 confers upon the circuit the requirement of due process of law objudge, as contradistinguished from the cir- tains. Ekern v. McGovern, 154 Wis. 157, cuit court, certain administrative and quasi | 142 N. W. 595, 46 L. R. A. (N. S.) 796; Schlitz judicial powers, to be exercised either dur- v. Roenitz, 86 Wis. 31, 56 N. W. 194, 21 L. ing term time or vacation, for the purpose R. A. 483, 39 Am. St. Rep. 873; McGehee on of removing town officers for cause and up- Due Process of Law, pp. 28, 29, 30, 162, 164. on charges, notice, and hearing. The cir- The removal provided for in section 976, cuit court issued a writ of certiorari to the Stats. 1913, is of the latter class. judge of that court to review the above decision, and from a judgment of the circuit court, affirming on certiorari the order of the circuit judge, this appeal is taken. The proceedings for removal, returned pursuant to the writ, show that the sole cause for removal was a refusal of Mr. Ballard to proceed under subdivision 3, supra. After the order removing Mr. Ballard, the statute which he refused to obey (subsection 3 of section 1317m4, otherwise known as chapter 337, Laws of 1911) was by this court declared unconstitutional in State ex rel. Carey v. Ballard, 148 N. W. 1090. The statute was there held invalid because, while leaving the administration of highway affairs and the raising of highway taxes with the town, it attempted to confer upon private citizens, who would put up a sum of money for the privilege, power to fix the amount and compel the levy of a tax, and direct its expenditure. There was, therefore, no ground shown in the charges or evidence for the removal of Mr. Ballard. An unconstitutional law imposes no enforceable legal duty, but the duties of the office remain defined by existing valid laws, and as if such unconstitutional law had never been enacted. Barling v. West, 29 Wis. 307, 314, 9 Am. Rep. 576; Campbell v. Sherman, 35 Wis. 103; Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061; Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178. [2] Appellant contends that the removal of an officer is an administrative act. This is too broadly stated. It may be, and it may not be, depending upon the kind of office and the kind of the tribunal by which the power is exercised and the statute pre [3] Administrative powers are conferred upon the circuit judge, not as a court, but as an administrative officer, such powers to be exercised by him by quasi judicial action. All tribunals so acting in a quasi judicial capacity are subject to the jurisdiction of the circuit court. Section 8, art. 7, Const. It was therefore proper procedure for the circuit court to issue its writ of certiorari to the judge of that court to review the quasi judicial action of the latter. The question presented is therefore properly before this court, and, the removal of Mr. Ballard having been without legal or justifiable cause, the judgment of the circuit court, affirming the order of the judge, is reversed, and the cause remanded, with directions to the circuit court to reverse such order of the judge, and dismiss the proceedings, with costs against the petitioner for removal. It is so ordered. GRABER v. DULUTH, S. S. & A. RY. CO. (Supreme Court of Wisconsin. Jan. 12, 1915.) 1. MASTER AND SERVANT (§ 284*)-INJURIES TO SERVANT-QUESTIONS FOR COURT-EMPLOYERS' LIABILITY ACT. the employment of the injured servant was in Where the facts are undisputed, whether interstate commerce, so as to be subject to the federal Employers' Liability Act (Act April 22, 1908. c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), is for the court. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. § 284.*] and a legal conclusion from the facts as to the | 9. DAMAGES (§ 132*)-EXCESSIVE DAMAGESLoss oF FOOT. applicability of the federal Employers' Liability Act is for the court. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. § 284.*] 3. COMMERCE (§ 27*)—EMPLOYERS' LIABILITY IN INTERSTATE COM ACT-EMPLOYED MERCE. The test whether the federal Employers' Liability Act applies is whether the employer was engaged at the time of the accident in interstate commerce, and the employé's particular service was a substantial part of that commerce, since, when actually performing a service essential to or so connected with interstate commerce as to be substantially a part thereof, it is employed in the performance of interstate commerce. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.* For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 4. MASTER AND SERVANT (8 250*)-FEDERAL EMPLOYERS' LIABILITY ACT-WAIVER. The right to proceed in an action for personal injuries under the federal Employers' Liability Act may be waived. A verdict for $10,000 for damages to plaintiff's right foot, compelling amputation between the ankle and the knee, is not so excessive as to require a reversal without argument by defendant on appeal, under St. 1913, § 2405m, authorizing the Supreme Court to reverse in its discretion, where it is evident that there has been a miscarriage of justice. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*1 Court for Douglas County; W. J. Turner, CirAppeal from a Judgment of the Circuit cuit Judge. Affirmed. Action to recover for a personal injury. Defendant was engaged in interstate and intrastate commerce of railroad transportation character. Plaintiff was in its employ, his business, in the main, being that of a brakeman between Soo Junction and Marquette in the State of Michigan. Soo Junetion was a terminal transfer point where cars were brought from within and without the state and placed in or made up into trains for completion of transit. That service was essential to the interstate as well as the intrastate feature of defendant's business. February 24th, 1912, in the early part of the eveA brief incidental absence from the work ning, plaintiff with his train crew completed of an interstate carrier, not inconsistent with the trip for the day from Soo Junction to the employé's duty, does not necessarily pre- Marquette and return. On such return, sevclude his right to recover under the federal Em-eral interstate cars were brought in. The reployers' Liability Act. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 805; Dec. Dig. § 250.*] 5. COMMERCE (§ 27*)-FEDERAL EMPLOYERS' LIABILITY ACT-TEMPORARY ABSENCE FROM WORK. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*] 6. COMMERCE (§ 27*) - FEDERAL EMPLOYERS' LIABILITY ACT-APPLICABILITY. A brakeman, who after finishing his regular duties, after a run between two state points on a train which had some interstate cars on it, went to a saloon, and from there started to cross over a train to go to the station and learn if the conductor had any further orders for him, and was injured while crossing such train, was employed in interstate commerce, and the railroad cannot complain that the court erred in submitting that question to the jury. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*] maining duty for the day was to sidetrack the cars, put away the engine in the roundhouse, locate and properly close the caboose and do work in the yard, if time should permit, and such were the orders from the conductor. After his train work was done, pursuant to duty, he set the brakes on some cars on the side track so they would not be unduly disturbed by the movement of the through train which was about to exercise the necessary movements to take in some cars and prepare to proceed upon its course. It was an interstate train. After doing such work, plaintiff proceeded to a nearby saloon, off the right of way, to get a drink. The saloon was so located that the through train, for a considerable distance up and down the track obstructed the way therefrom to the depot. It was a cold day and plaintiff had been out so long that he felt in need of refreshments. When he had last seen his conductor, of whom it was his duty to inquire as to further orders before going to supper, he was at the depot. After getting the drink plaintiff started for the depot, for the purpose of obtaining final instruction and then going to supper at a place on the right of way, on the depot side of the standing train. Such A servant assumes only such risks as are train had completed the required switching, ordinarily incident to the particular business as taken in several cars, and the engine was usually carried on, and not the risk of unex-about to be spotted at the water tank to take pected negligent acts of coemployés. 7. APPEAL AND ERROR (§ 171*)-PRESENTING QUESTIONS IN LOWER COURT APPLICABILITY OF FEDERAL EMPLOYERS' LIABILITY ACT. Where neither party to an action for personal injuries to a railroad brakeman claimed the benefit of the federal Employers' Liability Act, or made any objection to the court's instruction upon that act, the defendant cannot on appeal object that the trial court did not compel plaintiff to elect whether he would claim under the federal law or under the state law. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1063, 1066, 1067, 1161-1165; Dec. Dig. § 171.*] 8. MASTER AND SERVANT (8 216*)-INJURIES TO SERVANT-ASSUMPTION OF RISK. [Ed. Note.-For other cases, see Master and in a supply of water and be in readiness to Servant, Cent. Dig. §§ 567-573; Dec. Dig. § depart. As plaintiff reached the train and 216.*] was in the act of climbing through between For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes two gondola cars, without any signal being given, it was suddenly started, whereby his right foot was caught and so crushed that amputation of the leg between the ankle and knee, was necessary. Every common carrier railroad while engaged in commerce between the several states ing injury while he is employed by such carrier shall be liable in damages to any person suffer. in such commerce. Pedersen v. Del., L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. lina R. R. Co. v. Zachary, supra Illinois Cent. Ed. 1125, Ann. Cas. 1914C, 153; North CaroR. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163. Upon proof of the foregoing, the particulars of the occurrence, the nature of the injury, its effect, evidence tending to prove that trains often stood as in the particular case, [4] Thus it will be seen, that the test of and as often as half an hour to an hour and whether the Federal Act applies to any para half, leaving no way of getting from the ticular situation is not whether the particuside of the track where plaintiff was before lar person directly causing the injury was, at endeavoring to pass through between the the time thereof, engaged in interstate busicars, other than by executing some such ness, nor whether the act in which the permovement as he attempted or go around the son was engaged was, exclusively, an interend of the train, and that trainmen common-state commerce service; but whether the perly took the short cut and depended for warn-son or corporation charged with liability was ing of danger upon a signal by ringing of the engaged at the time it occurred in such comengine bell which commonly occurred before merce and the particular service in progress moving a train, the cause was submitted to and environing or characterizing the employthe jury, resulting in a verdict of $10,000 er's activity at the time of the injury, was of for plaintiff upon which judgment was ren- that nature,-its cast in that regard being dered. efficient if the work was a substantial part of interstate commerce. Where the particular work is entirely independent of interstate commerce service, the Federal Act does not apply, as in case of the switching movement of intrastate cars solely for intrastate purposes, Illinois Cent. R. Co. v. Behrens, supra,-an act the performance of which is a matter of indifference, so far as interstate commerce is concerned. Pedersen v. D., L. & W. R. Co., supra. But, as indicated, if the particular act, in any substantial part, is within the interstate field then the Federal law rules the situation, if either party sees fit to stand upon legal right in the matter. That may be done, or waived, expressly or impliedly. Leora v. M., St. P. & S. S. M. Ry. Co., 156 Wis. 386, 146 N. W. 520; Hanson v. C., M. & St. P. Ry. Co., 157 Wis. 455, 146 N. W. 524. Thomas S. Wood, of Duluth, Minn., and W. R. Foley, of Superior, for appellant. John C. Kleczka and Glicksman, Gold & Corrigan, all of Milwaukee (W. P. Crawford, of Superior, of counsel), for respondent. MARSHALL, J. Appellant's complaint is of submission of the case to the jury on the question of whether respondent, at the time he was injured, was engaged in interstate commerce, and within the scope of the Federal Employers' Liability Act. [1, 2] Whether a particular service or engagement therein is of interstate commerce character, is a question of law. The facts being undisputed, jury interference is unnecessary, and, if objected to, is improper, though not, necessarily, prejudicially so. Where the facts are so in dispute as to justify from one viewpoint, a finding in respect thereto on any vital element one way, and from a different aspect in a different way, the truth of the matter is for jury solution under proper instructions, and the legal conclusion is for the court to determine, based thereon. North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159. In the cases cited, the Federal Supreme Court explained that the law does not permit of splitting up a service, which is in its nature an entirety, into its various steps or elements. Work in the repair of a bridge, as was said, which is used in intrastate as well as interstate business and is indispensable to both, and in moving material to the location of the bridge for the purpose of its repair, [3] Commerce between a point in one state and in moving an engine from the roundand a point in another, is interstate com- house to be used in hauling an interstate merce. Those engaged in carrying on such train, and work partly intrastate and partly commerce, either as principal or employé, are interstate as in preparing an engine to go engaged in interstate commerce, and one out with a train made up of cars in interstate while actually performing a service essential and in intrastate service, are all parts of an to or so closely connected with such business entirety having the efficient interstate comas to be substantially a part of it,—an act in merce features required by the Federal Act. the carrier service of the interstate work,- All work, so closely related to interstate though not necessarily exclusive of all intra-commerce business as to be practicably instate features, is in the performance of inter- separable from it, though it promotes, at the state service in the carrying on of interstate same time, intrastate business, is in reality commerce, within the meaning of the Fed- and legal effect a part of the former. eral Employers' Liability Act. Such is its scope, as the Federal Supreme Court has held [5] A further detail of the Federal Act, as it has been authoritatively construed, is im Both sides to accept or to stand indifferent. the Federal law being applied. Respondent There Enough has been said to indicate that, at the best for appellant, it was a jury question as to whether respondent ceased to be engag ed in the service of appellant by leaving the absence from the scene of work or instrumentality used therein, which is not inconsistent with the employé's duty to his employer, does not, necessarily, preclude his efficiently claiming to be still on duty and en-quired. Neither side made any objection to gaged in interstate commerce. North Carolina R. R. Co. v. Zachary, supra. Neither the period or nature or continuity of service is changed by such a brief stepping aside from or cessation of activity as that of customarily visiting a way side place for a lunch, or other legitimate and common means of refreshment, or waiting after one task shall have been done for orders as to the next movement,—the employé all the time being within customary reach for continuance of the day's service and holding himself in readiness to immediately respond. Missouri, Kansas & Texas Ry. Co. v. United States, 231 U. S. 112;1 United States v. Chi., etc., R. R. Co. (D. C.) 197 Fed. 624; United States v. Denver & R. G. R. Co. (D. C.) Id. 629. [6] Applying the foregoing to the undisput-right of way for a few moments with the ed facts detailed in this case, it is considered that, if the trial court committed any error in leaving the question of whether respondent was engaged in interstate business at the time he was injured, to the jury, it was not in his favor; but rather was in favor of appellant. Work in the transfer yard was indispensable to the interstate busiRespondent had not been relieved for the day. His service from the time he started out in the morning until the instant of his injury and the work he then thought might be required of him, were inseparably connected with interstate business and, so, were a part thereof. The court under the circum-mitted to the jury accordingly, resulting in a stances, would not have made any mistake by so deciding, as matter of law. ness. [7] Complaint is made because the trial court did not compel respondent to elect whether he would claim under the Federal law or under the State law. It does not appear that either side claimed the benefit of the former, while the learned court seems to have thought that the Federal Act ousted the State court of jurisdiction to apply the state law, regardless of the attitude of parties in the matter. This court has held to the contrary in the two cases heretofore cited, and they seem to be in harmony with the Federal decisions. North Carolina R. R. Co. v. Zachary, etc., supra. If either side claims the benefit of the Federal Act, it is fatal error not to apply it, if, within reasonable probabilities, the result might otherwise be more favorable to the party complaining. Here there was no error in refusing to compel respondent to elect, as there would have been none by refusing to compel appellant to do so. The advantages of the Federal law were tendered by force of the law itself. It was up to the parties 184 Sup. Ct. 26, 58 L. Ed. 144. intention of returning for further service, if necessary, before being relieved for the day. No reason is perceived which will justify disturbing the conclusion which the jury reach ed. Neither of the numerous cases cited to our attention, in principle, fits this one, while the Federal cases are to the effect, as we have seen, that such incidents as the one in question do not, necessarily, break the continuity or nature of the service. [8] It is suggested that the Federal Act does not protect the injured person against the common law defense of assumption of the risk, in such cases as this. Granted. The trial court so held. The case was sub finding in respondent's favor. Assumption of the risk includes only such as the employé, expressly or impliedly, contracts to take upon himself because of being ordinary incidents of the particular business as ordinarily carried on, or as carried on in the particular case to his knowledge or under such circumstances that reasonable attention to his situation would afford him such knowledge. While in a broad sense it is a form of contributory negligence, actually, it is void of inadvertence and, technically, and essentially too, it is quite apart from contributory negligence in a closed sense of the term. Knauer v. Jos. Schlitz Brew. Co., 149 N. W. 494. Thus it will be seen that there was no assumption of the risk here as matter of law. There was believable evidence, and much of it, that the movement of respondent which led to his injury, was a common one and that it was a safe one, subject to omission from the head end of the train or string of cars to give the customary signal by ringing the engine bell before starting. The assumption of risk saved to employers under the Federal Act as a shield against the consequences of injuries to employés, does not include risk of unexpected negligent acts of co-employés. |