This action was begun on July 2, 1940, by J. G. Seelig as a citizen and as a member of the police and fire commission of the city of Ripon, Wisconsin, plaintiff, against the city of Ripon, defendant, to determine the validity of ordinance *Page 534 No. 386, and to declare that the, plaintiff is a proper member of the police and fire commission of the city of Ripon. The defendant city answered.
The facts as stipulated may be stated in an abridged form as follows:
The city of Ripon is a city of the fourth class and has eight aldermen, two from each ward, and a mayor; that the population of the city of Ripon under the 1930 census was 3,984 people; that the 1940 census was taken in the city of Ripon and the preliminary announcement of the population as of April 1, 1940, was published on June 4, 1940, showing the population to be 4,565 people; that said census was completed by the enumerators before May 1, 1940, and their books returned to the district supervisor at Sheboygan; that the city of Ripon operated under the police and fire commission for many years; that on May 2, 1940, John G. Seelig, the plaintiff, was a member of the commission, his term expiring on May 1, 1942, and four other appointees were serving; that at a regular meeting of the council, at which all of the eight aldermen and the mayor were present, on May 7, 1940, the following ordinance was introduced, known as ordinance No. 386:
An ordinance abolishing the police and fire commission.
The common council of the city of Ripon do ordain as follows:
Section 1. The police and fire commission is abolished.
Section 2. Any provisions of any ordinance heretofore enacted which conflicts with section 1 of this ordinance is repealed.
Section 3. This ordinance shall take effect upon passage and publication.
EUGENE VON SCHALLERN, Mayor
Dated May 7, 1940.
Passed May 7, 1940.
Published May 9, 1940.
Attested: C. A. WHITING, City Clerk.
*Page 535
That four aldermen voted for the adoption of said ordinance and four aldermen voted against it, and that the mayor cast his vote for such ordinance and declared it valid, and said ordinance was duly published in the official newspaper in the city of Ripon on May 9, 1940.
The trial court held that the census of 1930 governed because it was the last national census on May 9, 1940, and the trial court was of the view that upon the question of the repeal of the ordinance State ex rel. Owen v. McIntosh (1917), 165 Wis. 596, 162 N.W. 670, ruled the case in favor of the plaintiff. Judgment was entered accordingly on August 15, 1940, from which the defendant appeals. State ex rel. Owen v. McIntosh, supra, relates to the issuance of a liquor license. In the opinion it is said (p. 598):
"At the time the question of the issue of the pretended license to the defendant was voted upon at the council meeting there were present, according to the record, four aldermen and the mayor. On the motion to grant the license to defendant two aldermen voted `Yes,' two aldermen voted `No,' and, the mayor voting `Yes,' the motion was declared carried. Sub. (1), sec. 925 — 52, of the statutes provides that no such license shall be granted except by a majority vote of all the members of the council. By sec. 925 — 49 of the statutes it is declared that the mayor and aldermen shall constitute the common council, and that whenever a majority of the members of the common council is required to take any action the mayor shall not be counted in determining such majority, and that the mayor shall have no vote except in case of a tie. We hold that under these statutes and the record shown here the vote of the mayor could not be counted, and that lacking *Page 536 his vote there was not a majority vote of all members of the council in favor of granting such license."
The opinion refers to the statutes of 1898 which governed.
Sec. 62.11, Stats. 1939, provides:
"Common council. (1) How constituted. The mayor and aldermen shall be the common council. The mayor shall not be counted in computing a quorum, majority or other proportion under the requirements of law for the same, and shall not vote except in case of a tie."
By sec. 62.13 (1), Stats. 1939, it is provided that each city shall have a board of police and fire commissioners consisting of five citizens, etc.
Sec. 62.13 (2), Stats. 1939, provides:
"(2) Subsection (1) shall not apply to cities of less than four thousand population except by ordinance adopted by amajority of all the members of the council. A repealing ordinance may be adopted by a like vote."
The charter providing that the mayor shall not be counted in determining a majority or other proportion of the council, and sec. 62.13 (2), Stats. 1939, requiring that the repealing ordinance shall be adopted by a majority of all the members of the council, it seems futile to argue, as defendant does, that the mayor may cast a vote where the council is equally divided. If an ordinance is adopted by a majority of all the members of the council there can never be a tie vote. It is contradiction in terms to say that under such a provision a tie can ever exist. Consequently, the mayor can never cast a vote under such a requirement. The trial court correctly so held.
While the language of the section has undergone some change in the course of years, the provisions of sec. 62.11 (1), Stats. 1939, are substantially the same as those of sec. 925 — 49, Stats. 1898, under which the case of Stateex rel. Owen v. McIntosh, supra, was decided. *Page 537
The repealing ordinance not having been properly adopted was ineffective for any purpose. The board as it stood at the time of the attempted adoption continued in office. Our conclusion upon this branch of the case makes it unnecessary for us to decide which was the last census, a question which under the facts of this case is a troublesome one, and one not likely to arise in another case.
By the Court. — Judgment affirmed.