State ex rel. Burdick v. Tyrrell, 158 Wis. 425

State ex rel. Burdick v. Tyrrell

158 Wis. 425 | Wis. | 1914

Kbewiw, J.

At the time of the alleged election of the relator the city of Lake Geneva was operating under the general charter, but under its provisions the election of officers was continued in the manner provided by the special charter. The provisions of the general charter which in any way relate to the matter under consideration are as follows:

“City officers; methods of choosing. Section 925 — 25. 1. The mayor, treasurer, comptroller, aldermen, justices of the .peace and supervisors shall be elected by the people. The other officers shall be elected or otherwise selected as provided by ordinance approved by the electors of the city; provided, that in case any such officer, except policemen, shall be appointed by the mayor, such appointment shall be subject to confirmation by the council. In cities where the clerk performs the duties of comptroller, the clerk shall be elected by the people.

“Methods under general charter. 2. In all cities operat*431ing -under the general law, officers,-except as herein specified, shall continue to be elected or appointed in the manner now provided by law. In cities adopting the general law all officers shall continue to be elected or appointed in the manner prevailing in such cities at the time of the adoption of the general law, until changed in the manner herein provided, except as herein otherwise provided.”

“Terms. Section 925 — 26. All officers shall hold their offices respectively for the term of one year, except justices of the peace and aldermen, who shall hold for two years- and until their successors are qualified, unless the council shall, by ordinance, provide a longer term for said officers or any of them, or unless a different term of office is expressly provided in this charter; provided, that this section shall not extend the terms of any city officers beyond the terms for which they were originally elected or appointed. The common council may provide that the terms of the aldermen first elected after the adoption of this provision shall expire in different years, and thereafter part of the aldermen shall be elected each year and hold for the full term.”

Sec. 925 — 34 provides that every person elected or appointed to any office shall,-before he enters upon the discharge of his duties, take and subscribe the constitutional oath of office and filp the same with the city clerk within ten days after notice of his election or appointment.

Sec. 925 — 49 provides that the mayor and aldermen shall .constitute the common council, and that whenever a majority or a certain proportion of the members of the council is required to take action or form a quorum, the mayor shall not be counted in determining such majority or proportion, and that the mayor shall have no vote except in case of a tie.

Sec. 925 — 51 provides that the council shall determine the rules of its proceedings; that two thirds of its members shall constitute a quorum for the transaction of business, excepting in cities wherein the council does not exceed five members, and in such cities a majority of the members thereof shall constitute a quorum, and that in all confirmations by the council the vote shall be taken viva vóce and shall be recorded *432by tbe clerk in the journal, and a concurrence of a majority of all the members shall be necessary to a confirmation.

Sub. 68 of sec. 925 — 52 provides that all laws, ordinances, regulations,- and by-laws shall be adopted by an affirmative vote of a majority of all the members of the council.

There is no provision in the charter requiring a majority of the members of the council in the election or appointment of officers by the council. The council in the instant case, as it had a right to do, adopted a rule of proceeding in the election of city attorney and provided that the election be by ballot and that the first ballot be informal. The first formal ballot taken on the 23d day of April, 1912, resulted in three .votes for the relator, one for Brown, one for defendant, and one blank. The next formal ballot resulted the same.

The contention of the appellant is that neither of these formal ballots elected the relator for several reasons, which will be considered. It is insisted that the proceedings show that the council understood that no selection of city attorney had been made. It may well be that the members of the council thought that the votes of three aldermen under the circumstances did not elect, but what the aldermen did must control. The fact that the aldermen made a mistake of law in holding that the three votes cast for the relator did not elect him did not invalidate the election if three votes did in fact elect. Nor did the other proceedings of the council respecting deferring action and voting to reconsider the election invalidate the election if relator was elected hy the first formal ballot. 'The proceeding to reconsider was not regular even if the •council had power to reconsider. The motion deferring action did not disturb the vote taken or change the choice of ■the three aldermen who voted for the relator, and the motion •to reconsider was not passed upon until after the relator had •filed his oath of office.

Moreover, after the election of relator, acceptance of the *433office, and qualification by him, the council had no power, to reconsider and elect another. State ex rel. Scofield v. Starr, 78 Conn. 636, 63 Atl. 512; Regina ex rel. Acheson v. Donoghue, 15 Up. Can. Q. B. 454; Marbury v. Madison, 1 Cranch, 137; State ex rel. Calderwood v. Miller, 62 Ohio St. 436, 57 N. E. 227; 2 Dillon, Mun. Corp. (5th ed.) § 529 and cases cited in note.

In 2 Dillon, Mun. Corp. (5th ed.) sec. 529, it is said: “The weight of authority is also to the effect that, when a ■completed vote has been taken which results in the giving of the necessary majority or plurality to one of the candidates, the council cannot rescind its vote or reconsider its action and ■elect another person.”

It is true that in case of mistake or fraud in the taking of a ballot another ballot may be taken and the irregular or fraudulent one rejected. State ex rel. Scofield v. Starr, supra. But no such case is here.

It is further insisted by counsel for appellant that the election or appointment of relator was not complete, because the city clerk never issued or filed a certificate to the effect that the relator had qualified as provided by sec. 925 — 29a of the general city charter, and that the members of the common council never considered that relator was elected, and the mayor never declared him elected. The rule adopted for the election of city attorney provided that the election be by ballot and the second ballot be formal. The result of the formal ballot declared and recorded was that the relator received three votes. This result could not be changed by declaration of the mayor. Neither could the failure of the city clerk to issue and file a certificate of election deprive the relator of the office. The duty of the city clerk to issue and file the certificate was ministerial and is no part of the appointing power. The appointment is made when the last act required of the person vested with the power has been performed. Marbury v. Madison, 1 Cranch, 137.

*434It is further argued by counsel for appellant that the vote-of three aldermen was not sufficient to elect. There is no-provision in the written law requiring a majority of the council to elect, hence the common-law rule applies. Under-the charter two thirds of the aldermen, being four, constitutes-a quorum fop the transaction of business. The election or appointment of a city attorney was “transaction of business,”' and a majority of a quorum, in the absence of any statute to-the contrary, was sufficient to elect. Att’y Gen. v. Shepard, 62 N. H. 383; Launtz v. People ex rel. Sullivan, 113 Ill. 137; Wheeler v. Comm. 98 Ky. 59, 32 S. W. 259. A majority of .the votes cast, where all the aldermen were present,, was sufficient to elect, even though some did not vote or voted a blank ballot. 2 Dillon, Mun. Corp. (5th ed.) §§ 528, 529; State ex rel. Calderwood v. Miller, 62 Ohio St. 436, 444, 57 N. E. 227; State v. Parker, 32 N. J. Law, 341; People ex rel. Furman v. Clute, 50 N. Y. 451; Cooley, Const. Lim. (6th ed.) p. 771; Everett v. Smith, 22 Minn. 53; Smith v. Proctor, 130 N. Y. 319, 29 N. E. 312; Cass Co. v. Johnston, 95 U. S. 360; 2 Dillon, Mun. Corp. (5th ed.) §§ 522, 523, 526, 527.

It will be seen that in the special charter provision is made (sec. 1, ch. II) for appointments of all officers not elected by the electors, while in sec. 7 of ch. Ill the charter provides, that the council may “elect” a city attorney, and in the general charter it is provided that officers not elected by the people shall be “elected or otherwise selected as provided by ordinance. . . .” Perhaps, accurately speaking, under sec. 9, art. XIII, Const., and the provisions of the city charter in the instant case the council appoint and do not elect the city attorney. But whether the term “elect” or “appoint” be used in the charter the power of the council over the subject matter is the same. It is in reality an appointing power, and under the terms of the charter under consideration is to be-exercised by the common council as a collective body, acting • *435in the capacity of the common council of the city of Lake Geneva.

Counsel fox appellant further insists that sub. B, sec. 4911, Stats., rules this case, and that under the provisions of this statute the power given to elect or appoint confers upon a majority of the council only the right to make the appointment, and the relator not having a majority of the council was not elected. We do not think the statute applies. It provides that words purporting to give a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of such officers or other persons unless otherwise expressly declared. In the instant case the authority to appoint or elect a city attorney was not a joint authority given to' the aldermen or the aider-men and the mayor; it was an authority given to the common council in its collective capacity as common council.

Appellant also urges the doctrine of estoppel against the relator. We find nothing in the record to support this contention.

By the Court. — The judgment is affirmed.