227 Wis. 148 | Wis. | 1938
The following opinion was filed January 11, 1938:
The thirteen challenged names on the petition are to be rejected if sec. 370.01 (19), Stats., providing,—
“in all cases where the written signature of any person is required by law, it shall always be the proper handwriting of*150 such person or in case he is unable to write, his proper mark or his name written by some person at his request and in his presence,”—
applies to the signatures required by sec. 62.07, Stats., requiring an annexation petition tO' be “signed by a majority of the electors.” The only question submitted to us is, as stated by defendants:
“Whether in this case a husband signing for his wife or a wife signing for her husband, in the presence of the other party and with their knowledge and consent is a sufficient signing.”
In interpreting sec. 62.07, Stats., consideration must be given to a method devised by the legislature for the particular purpose of getting an expression of judgment from electors residing in a particular community. The peculiar relation between the official characters of the parties to the process is of greater consequence by reason of the governmental nature of the acts involved.
An elector who desires the annexation to an adjacent city of the district in which he resides must express his decision to join in the petition for such annexation by subscribing his own name if he can write. Among the cases called tO' our attention by defendants is the case of State ex rel. Patton v. Myers, 127 Ohio St. 95, 186 N. E. 872. That case deals with a petition. Art. II, § lg, of the constitution of that state provided:
“. . . Each signer . . . must be an elector of the state and shall place on such petition after his name the date of signing and his place of residence. . . . The names of all signers to such petitions shall be written in ink, each signer for himself.”
The interpretation was that the signature must be that of the elector, although the date and residence might be filled
In Mericle v. Mulks, 1 Wis. *366, where the statute required supervisors “to' sign” a road warrant, it was held that the construction statute, now sec. 370.01 (19), applied. Williams v. Mitchell, 49 Wis. 284, 5 N. W. 798, contains dictum in support of Mericle v. Mulks, but came to an opposite result on the basis that a statute requiring supervisors to “make out” a notice did not require a written signature. In Scott v. Seaver, 52 Wis. 175, 8 N. W. 811, this court refused to apply the rule of Mericle v. Mulks to a case where a statute required an indorsement of an assignment for the benefit of creditors by the assignee and an officer. Mezchen v. More, 54 Wis. 214, 11 N. W. 534, dealt with a statute requiring a summons to be “subscribed” by an attorney; it was there held that a written signature was not required. It may, however, be said that Mericle v. Mulks still stands as authority for the proposition that where the legislature requires the signature of one who acts in a governmental capacity, a written signature is required, and the construction statute applies. In re Opinion of the Justices, 114 Me. 557, 95 Atl. 869, 876.
The trial court ruled that inasmuch as each name in each instance was signed by direction and in the presence of the elector, the thirteen names could properly be counted. The defendants, to sustain the judgment granted below, rely on the rule that what is done for a man in his presence and by his express direction is his act and deed. The rule mentioned arises out of a common-law distinction between acting by an
The result reached by reading these statutes together is consistent with public policy in the type of matter affected. Under the annexation statute here considered, a declaration of intention by signing the petition is analogous to voting upon the question. The elector is to express his opinion. The method of expression is provided. The petition derives its force from the active insistence of the elector who signs it. If he cannot write, he may have assistance just as the disabled may have assistance in voting, but the possibility of outside interference is here, as in the case of voting, to be
“the proper handwriting of such person or in case he is unable to write, his proper mark or his name written by some person at his request and in his presence.”
Having reached the conclusion that the instruments presented as petitions were insufficient, by reason of the fact that the thirteen names challenged were not signed by the electors, they being able to write, it is unnecessary to consider other question^ raised by plaintiff.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment restraining further proceedings based upon this petition.
A motion for a rehearing was denied, with $25 costs, on March 15, 1938.