65 Wis. 510 | Wis. | 1886
Upon the hearing in this court the appellant assigns the following errors: (1) That the complaint is insufficient because it does not show that there is any such corporation as joint school district No. 3, etc., as set out in the complaint; (2) that the complaint does not state any
The first objection made to the complaint is clearly untenable. This is not a proceeding against the defendant for unlawfully using and exercising the functions of a corporation within this state, but for intruding himself into and exercising the duties of a public office of the state. The statutes of the state require school districts, whether joint or otherwise, to elect a director, clerk, and treasurer, and define their respective duties, as well as their terms of office; and there would seem to be no more reason for setting up facts showing the organization of a school district in such case than there would be in setting up the facts by ■which a town or county was brought into existence, when the action is against a person for usurping a town or county office, and we are unable to find any case in which it is held that the complaint must allege such facts.
The case of People ex rel. Hudson v. DeMill, 15 Mich. 164, cited by the learned counsel, is not in point. In that case the relator was calling upon the court to remove certain officers of a church corporation, whose election or appointment was not required by any general or special law of the state, but whose existence and right to act depended upon the acts of a corporation which the general laws of the state permitted to be organized. In such case the court were of the opinion that the facts showing the creation of such corporation should be alleged, and also the facts showing that, under the authority of such corporation, the persons sought to be ousted were in fact holding an office under such corporation. Chief Justice Cooley, in his opinion, makes the distinction above stated. He says: “ The information in a case like the present must therefore show that a corporation exists; for until that is shown it is not
In the case at bar this court must take judicial notice that there is such a public office as a treasurer of a school district, and in this proceeding it is unnecessary to show how the office was created. If any allegation of the existence of the school district be necessary in the complaint, it is sufficient to allege such existence in general words. This is in accordance with all the precedents we have been able to find.
It is further objected that the complaint does not show any official acts done by the defendant as treasurer of said school district; and that the general words that “ he claims to have been appointed by the town clerk of the town of Chester to fill the vacancy in said office, and that, without any other or any legal warrant, right, or grant whatever, he has intruded into and usurped said office, and still unlawfully holds and exercises the same,” are not sufficient to show that he is in fact exercising the duties of said office. It is not denied by the learned counsel for the appellant
, We think the defendant, if he wishes to put his defense upon the ground that he has not in fact intruded into and exercised the duties of the office which he is charged with
The only other question in the case is whether the relator has shown himself entitled to the office in case the defendant is not. The circuit court, in overruling the demurrer and directing judgment, has not only ousted the defendant, but has decided that the relator is entitled to hold the office. It may be a matter of doubt whether the respondent has such an interest in that part of the order for judgment in favor of the relator as entitles him to appeal from it. We shall not consider that question, however, as we have come to the conclusion that the complaint states facts which show that he was legally appointed to fill the vacancy, and that he has taken all the steps necessary to entitle him to retain said office.
The first question relating to his title is the legality of his appointment by the clerk of the city of Waupun. The section of the statute under which he claims his appointment is sec. 433, R. S. 1878. This section reads as follows: “ The said board [meaning the school district board] shall have power to fill, by appointment, any vacancy that may occur in their own number, within ten days after such vacancy shall occur; and if such vacancy shall not be filled within ten days, as aforesaid, by said board, the town clerk shall fill such vacancy by appointment. In case a vacancy
There is no provision for filling a vacancy in the school board of a joint school district, when the school-house in such district is situate in a city, and when the board fails to fill the same within the ten days prescribed by the section quoted, unless the city clerk can make the appointment. There is no more reason for holding that the town clerk of the town of Chester should make the appointment than there is for saying that the town clerk of either of the other towns, a part of whose territory composes the joint district, should do so. A school-house standing in the city of Wau-pun is no more situate in the town of Chester than it is in the towns of Alto, Trenton, or the town of Waupun. A school-house situate in the city of Waupun cannot be said to be situate in either of the towns adjoining the city. The city is as essentially a separate municipality as either of the towns. Under the definition of the word “ town ” given in the statute above quoted, we think it clear that the city of Waupun, being a part of a joint school district, must be deemed a town so far as to enable the clerk of the city to perform the duties which a town clerk of one of the towns forming such district is directed to perform; and that the
It is urged that, because the clerk of tbe school district refused to approve and file the relator’s bond, the relator is not the treasurer of said district, and that there is still a vacancy in such office. We do not think such construction should be given to the law: The person who has been elected or appointed to an office, and who does all that is required of him by law to entitle him to hold the office, cannot be deprived of such office by any wilful or unjust refusal of the person or officer who is required to approve his official bond to give it his approval. If such a rule is to prevail, then the officer whose approval of an official bond is required may, in any case, by such wilful and unjust refusal, create a vacancy in an office. We think the allegations of the complaint show that the clerk’s refusal to approve the bond was not because it was not sufficient in the law, and the sureties ample, but for some other reason,— probably because he did not think he was properly appointed. Sec. 962, R. S., declares what shall create a vacancy in an office. Subd. 7 reads as follows: “ The neglect or refusal of any officer elected or appointed, or re-elected or reappointed, to any office, to give or renew his official
The supreme court of Michigan, under a law substantially like ours, held that when a person had been in fact elected to an office, but the board of canvassers gave the certificate of election to his competitor, he could maintain an action to oust the claimant holding under the certificate of election, and, after judgment in his favor, could then take the oath of office, and give the bond required by law; and that his failure to do so up to that time did not create a vacancy in the office. People ex rel. Finnegan v. Mayworm, 5 Mich. 146. In the opinion in that case, after reciting the law which requires an officer elected or appointed to take the oath of office and file his bond within a limited time after his election or appointment, and also the section declaring that the omission to do so shall make a vacancy in the office, substantially as our statute declares, the court say: “ Without expressing an opinion upon the effect of an omission in other cases, we think the directions as to time are not fairly applicable to a person to whom the election board refuses the certificate, but can only apply to persons declared elected by the board. ... It would be a very harsh rule to apply the legal disabilities to a person who cannot, by reason of the default of the inspectors, secure his right.”
So, in this case, the relator not being in any default, may, after judgment has been rendered in his favor, and under the provisions of sec. 3é7l, B. S., file his official bond, and do any other act necessary to entitle him to discharge the
By the Court.— The judgment of the circuit court is affirmed.