131 Wis. 198 | Wis. | 1907
The following opinion was filed January 8, 1907:
It appears from the record and is undisputed that December 10, 1904, the governor appointed the relator county judge of Juneau county to fill the vacancy created
On September 5, 1905, the relator commenced this action of quo warranto to determine the right to said office of connty judge. The defendant answered the amended complaint. At the close of the trial, the jury impaneled and sworn in the canse, by the direction of the conrt, found that the defendant had not usurped, intruded into, or wrongfully taken possession of the office of connty judge of Juneau county, but that he was then, and was on the date of taking possession thereof, entitled to said office as the duly elected and qualified county judge of said Juneau county, and that Julius T. Dithmar, the relator herein, had no cause of action. Erom the judgment entered in pursuance of such verdict in favor of the defendant and against the relator, with costs, the relator appeals.
1. Under the Statutes of 1898 county judges were to be elected on the first Tuesday of April, 1901, and every fourth year thereafter; and the term’ of such office was to be four years and commence on the first Monday of January next after such general election. Sec. 2441, Stats. (1898). The same section provided that, when a vacancy should occur in the office of county judge from any cause, the governor should “appoint a county judge, and the person so appointed” should “hold for the residue or for the whole of the term.” Id. That section was amended in 1899 by striking out the words “for the residue or for the whole of the term,” and inserting in lieu thereof the words “until the first Monday of June next succeeding such appointment.” Sec. 2, ch. 7, Laws of 1899. Eour years afterwards a statute was enacted, which, as applied to this case, declared that “in all eases of vacancy in the office of . . . county judge, the election to fill such vacancy shall be held on the first Tuesday of April next after the vacancy shall happen.” Sec. 4, ch. 10, Laws of 1903. Such were the provisions of the statutes applicable when the
2. Counsel contend that the defendant was never nominated' for the office. One of the grounds for this contention is that most of the electors who signed the defendant’s nomination, papers failed to state their residence or business, other than to add ditto marks below the business or residence of some former subscriber, as, for instance, below the words “Earmer,” “Plymouth,” “Lemonweir,” etc. The statute required that each voter should “add to his signature his business and residence, street and number, if any.” Subd. 3, sec. 30, Stats. (1898). It seems to be settled that courts will take judicial notice of abbreviations- in common use and also- the ordinary contractions or abbreviations of Christian names. 17 Am. & Eng. Ency. of Law (2d ed.) 897; 1 Am. & Eng. Ency. of Law (2d ed.) 97-102, citing numerous cases. Thus, it has been held in Indiana:
*203 “The use of a double comma following the name of a subscriber to such articles of association under the name of a certain specified locality sufficiently designates such subscriber’s residence.” Steinmetz v. V. & O. T. Co. 57 Ind. 457. See, also, Henry v. Armitage, L. R. 12 Q. B. Div. 257.
Our statutes expressly provide that, in legal proceedings, “such abbreviations as are now commonly used in the English language may be used, and numbers may be expressed by Arabic figures or Roman numerals in the usual manner.” Sec. 2578, and subd. 19, sec. 4971, Stats. (1898). We are constrained to hold that the placing of such ditto marks below the business or residence of some former subscriber was a substantial compliance with the statute cited.
3. There is, however, a more serious objection to such nomination papers. After several of them were signed by qualified' electors and voters of the county and delivered to the defendant they were changed by interlining the words “for the unexpired term.” As already indicated, some one was to be elected for the unexpired term and some one for the full term. The electors were at liberty to so nominate one person for the unexpired term and another person for the term beginning January 1, 1906, or they could nominate the same person for both positions. In fact one of such papers was changed by the defendant by interlining the words “for the unexpired term and the term beginning January, 1906.” The nomination papers of each candidate were to have signatures of the requisite per cent, of the voters of the county, and no voter could properly sign more than one nomination paper to the same office. Subd. 3, sec. 30, Stats. (1898). “On ballots to be used at general elections” the statutes expressly provide that, “if any officer to be elected is to fill a vacancy, that fact shall be so specified upon the ballot.” The primary election law declared that the provisions of the statutes previously in force in relation to holding and conducting elections and all other kindred subjects should apply to all primaries in so far as they
The question here presented is not whether tbe name of tbe •defendant as such candidate should have been kept off from tbe official ballot. That question is fully considered by my brother WiNsnow in tbe late case of State ex rel. Rinder v. Goff, supra, and it is only necessary here to refer to it. The claim here is that, by reason of such alteration, tbe defendant was never legally nominated as a candidate to fill such unexpired term, and hence that tbe votes cast for him for that office at tbe election April 4, 1905, should not have been counted. This is one of tbe important questions in tbe case. Counsel have cited one case which supports their contention. Price v. Lush, 10 Mont. 61, 24 Pac. 749, 9 L. R. A. 467. It was there held that tbe provisions of tbe primary election law, similar to ours, “are mandatory,” and that “tbe name of a person who is not nominated in tbe manner fixed by tbe statute cannot
“Officially publishing the- candidacy for office of a person not legally nominated and printing his name on the official ballot gives him an advantage to which he is not entitled under' the Australian ballot system and will prevent his taking the office, even if elected, although he could have announced himself to the public as a candidate and could then lawfully have-received the votes of any electors who chose to vote for him.” Id.
In deciding that case the court seemingly lost sight of the right of the elector to exercise free choice at the election, and', confined its attention to the mistakes and misconduct of election officers and candidates.
As recently suggested by this court in one of the cases cited,, contests over a primary election should be speedily settled before the regular election. State ex rel. Rinder v. Goff, 129 Wis. 668, 109 N. W. 628, 633. But a failure to so settle such contests should not operate to disfranchise legally qualified voters. We are not embarrassed by the decision in the Montana case mentioned, since that decision was modified and, in effect, overruled by later decisions in the same court. Stackpole v. Hallahan, 16 Mont. 40, 48, 40 Pac. 80; State ex rel. Brooks v. Fransham, 19 Mont. 273, 288, 289, 48 Pac. 1. In this last case the court said:
“Where there is a neglect on the part of one to avail himself of this right [given him by statute], he cannot, when the result of the election is announced and he finds himself defeated at the polls, ask the courts to nullify the expressed will of voters upon the ground of the error or wrong of the county clerk, which he could by reasonable diligence have had corrected. ... If no ante-election objection to a nomination is made, the provisions of the statute are to be treated as directory.” •
It was there held, accordingly, that, unless the corrections are made before the election, the ballots cannot be rejected because the nominations were not properly made. Id. In reach
“We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake, or even the wilful misconduct, of election officers in performing the duty cast upon them. The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to secure the rights of duly qualified electors and not to defeat them.”
“'The votes of innocent electors are not invalidated by irregularities or unauthorized acts on the'part of public officers charged with the duty of preparing anjd printing official ballots when no irregularity or want of authority appears on the face of the ballots.” People ex rel. Hirsh v. Wood, 148 N. Y. 142, 146, 147, 42 N. E. 536, 537.
To the same effect: State ex rel. Crawford v. Norris, 37 Neb. 299, 55 N. W. 1086; Tutt v. Hawkins, 53 Neb. 367, 73 N. W. 692; Allen v. Glynn, 17 Colo. 338, 29 Pac. 670; Miller v. Pennoyer, 23 Oreg. 364, 31 Pac. 830; Baker v. Scott, 4 Idaho, 596, 43 Pac. 76. See, also, Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, overruled by McKay v. Minner, 154 Mo. 608, 614-617, 55 S. W. 866, so far as the statute of that state expressly required. In Michigan it has been held that “voters finding a ticket upon the official ballot are not required to determine whether it is entitled to a place thereon, but may safely rely upon the action of the officers of the law, who, they have a right to suppose, have performed their duty.” Bragdon ex rel. Loranger v. Navarre, 102 Mich. 259, 60 N. W. 277. See People ex rel. Hartwick v. Avery, 102 Mich. 572, 574, 61 N. W. 4; Horning v. Board of Canvassers, 119 Mich. 51, 56, 77 N. W. 446. The right of voters to thus rely upon the correctness of the official ballot was discussed by ‘counsel and considered by the court in State ex rel. Hunt v. Stafford, 120 Wis. 203, 216-219, 97 N. W. 1043, but was not determined, because it was held by the majority of the court that
4. It is claimed that the defendant was never elected to the office of county judge, either for the unexpired term or the full term, for the reason that he procured the electors to vote for him by bribery. The statutes prescribe the persons who shall be deemed guilty of bribery, and, among other things, declare that “every person” shall be deemed guilty of bribery and be punished as therein prescribed
“who shall, directly or indirectly, by himself or by any other person on his behalf, give, lend, or agree to give or lend, or offer, promise or promise io procure or endeavor to procure any money or valuable consideration, to or for any voter, to or for any person on behalf of any voter, or to ,or for any other person in order to induce any voter to vote or refrain from voting, or do any such act as aforesaid, corruptly, on account of such voter having voted or refrained from voting at any election.” Sees. 4478, 4478a, Stats. (1898).
The statute also declares:
“Any person who shall obtain any office by' bribery or shall have been elected to< any office at any election, at which election he shall have induced or procured any- elector to vote for him for such office by bribery, shall .be disqualified from holding said office, and he shall be ousted therefrom, and said office shall be deemed and held vacant, to‘ be filled by election or appointment as other vacancies, according to law.” Sec. 4481, Stats. (1898).
“ (1) If a sum of money, or any property, is offered to individual electors for their votes at any election held under the laws of this state, all votes shown to have been obtained thereby will be rejected by the court in an action to determine the right to the office. (2) In like manner, a vote given for a candidate for any public office in consideration of his promise, in case of his election, to donate a sum of money or other valuable thing to a third party, whether such party be an individual or a county, or any other corporation, will be rejected as void by the court when called upon judicially to declare the result of the election.” State ex rel. Newell v. Purdy, 36 Wis. 213.
It has been held in Missouri to be
“. . . unlawful for a candidate for public office to make offers to the voters to perform the duties of the office, if elected, for less than the legal fees. An election secured by means of such offer is void.” State ex rel. Att’y Gen. v. Collier, 72 Mo. 13. To the same effect, State v. Elting, 29 Kan. 397, 399.
As recently held by this court, in an action of “quo war-ranto to try title to an elective office, two questions should determine the case: How many legal votes were cast for the relator, and how many legal votes were cast for the defendant?" State ex rel. Leonard v. Rosenthal, 123 Wis. 442, 453, 102 N. W. 49.
The question recurs whether it appears from the facts presented by the record that the votes cast for the defendant come within the condemnation of the statutes quoted and the principles of law thus adjudicated. The charge of bribery is based
“The interest of the party in court demands the economical management of his case. This can be accomplished by having all advice given and papers drawn by the county judge, or under his direction, free of'charge. The law does not permit the county judge to make any charge for such service in probate cases nor does it compel him to perform such service. He may perform it or he may require a lawyer to do it. . . .
“My Platform.
“If I should be elected county judge—
“I will not permit unnecessary delay in the transaction of business in the county court.
“I will draw all papers necessary in the settlement of estates and give the necessary advice free of charge.
“I will use my best effort to prevent any unnecessary legal contests.
“I will favor, and assist in, the settlement of estates with the least possible-expense, whether for legal fees or otherwise.”
One of the other candidates having criticised such offer of the defendant to give all advice and draw all papers free of charge, the defendant, eight days before the election, issued an explanatory letter, stating, among other things, in effect, that he had mailed his former letter “to practically every voter in the county,” that he was charged with “no greater offense than the disinterested giving of assistance to parties in his court,” and that that gave “plenty of room for the exercise of discretion and common sense in the matter of making papers and giving advice in cases in which there is ho contest — and such cases are the only ones to which my ‘plank’ is intended to refer.” That explanation is certainly in conflict with the language of the circular and particularly of the platform quoted,
Under the statute cited it was incumbent upon the relator, in order to oust the defendant from office, to show that the defendant obtained the office by bribery, or, at least, that he “induced or procured” some electors or “elector to vote for him for such office by bribery.” Sec. 4481, Stats. (1898). The amended complaint alleges that seven electors therein named were induced and procured by the defendant by bribery in circulating such letter to vote for him for such office at said election. But we fail to find in the record any proof of any voter being induced or procured by bribery to vote for the defendant for such office. To come within the condemnation of the statute it was not only necessary that the defendant should have made the offer, but also that such voters or voter should havé been “induced and procured” thereby to vote for him for that office. We must hold that there was no error in refusing to reject the votes cast for the defendant by reason of such circular letter, nor for refusing to oust him from that office by reason of that letter. As indicated in the foregoing statement, at the election April 4, 1905, the defendant received 127 votes more than any other candidate for the unexpired term of said office, and 164 votes more than any other candidate for the full term of said office. It follows from what has been said that the board of canvassers on April 13, 1905, properly declared that the defendant was duly elected to said office for the imexpired term and also for the full term, and thereupon the county clerk properly issued to him a certificate of election for the unexpired term and also for the full term.
The other reason for claiming that the defendant never qualified for the office is that his official bonds, which were executed and filed' in the office of the county clerk' immediately after he received his certificates of election, were not recorded in the register’s office until July 17, 1905 — about three months after they were so executed and filed. Undoubtedly the statutes required the bonds so executed to “be recorded” by the defendant at his own cost “in the office of the register of deeds,” and that the same should “then be filed with the county clerk.” Secs. 2442, 702, Stats. (1898) ; sec. 1, ch. 376, Laws of 1903. What has been said about statutes being regarded as directory is peculiarly applicable to the delay in recording such bond. Thus, it is said by the text-writer mentioned :
“The statutes requiring a bond to be given ordinarily prescribe that it shall be given within a fixed time after the officer’s election or appointment. These provisions as to time, however, though often couched in most explicit language, are usually construed to be directory only and not mandatory. A failure to give the bond within the time prescribed does not, therefore, ipso facto work a forfeiture.” Mechem, Pub. Off. §§ 265, 266. See, also, Glavey v. U. S. 182 U. S. 595, 21 Sup. Ct. 891; Cronin v. Stoddard, 97 N. Y. 271; Schuff v. Pflanz, 99 Ky. 97, 35 S. W. 132; People ex rel. Bennett v. Benfield, 80 Mich. 265, 45 N. W. 135; Cawley v. People, 95 Ill. 249.
We must hold that the office did not become vacant by reason of the defendant’s delay in recording the bonds, and that the defendant duly qualified for the office.
“In all cases of vacancy in the office of . . . county judge, the election to fill such vacancy shall be held on the first Tuesday of April next after the vacancy happens: . . . Provided that no election to fill a vacancy for . . . county judge shall be held at the time of holding the regular election for such office. . . . When a vacancy shall occur in the office of county judge, . . . the governor shall appoint such judge, and the person so appointed shall hold until the first Monday of June next succeeding an. election to fill such vacancy. . . . All county judges heretofore appointed to fill vacancies shall hold and continue in office until the first Monday of January, 1906. ...
“Sec. 2. This act shall take effect and be in force from and after its passage and publication.” Secs. 1, 2, ch. 91, Laws of 1905.
The last clause quoted indicates an intention that the act should be prospective in its effect and force and not retroactive. Such is the ordinary rule of construction where there is nothing in the act to indicate a contrary intent. Here the only provision indicating a contrary intent is the clause declaring, in effect, that “all county judges” theretofore “appointed to fill vacancies” should “hold and continue in office until the first Monday of January, 1906,” and that clause was expressly stricken out of the statute and repealed June 6,
“In the absence of constitutional restriction it is entirely competent for the legislature of a state to make provision as to> when the term of an incumbent, elected or appointed to fill a vacancy, shall expire.” 23 Am. & Eng. Ency. of Law (2d ed.) 419.
The constitution also declares that “all county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties- ... as the legislature shall direct.” Sec. 9, art. XIII, Const.
“Power is not left with the legislature in its discretion to appoint or elect all officers whose election or appointment is not provided for in the constitution.” 109 Wis. 266, 85 N. W. 332.
As said in the same case:
“The continuance of a person in office by legislative interference, beyond the specific term for which he was elected or appointed, is equivalent to a new appointment to the office, and void if the office be one that the legislature cannot fill by direct appointment or election.” 109 Wis. 268, 85 N. W. 332, citing State ex rel. Hamilton v. Krez, 88 Wis. 135, 59 N. W. 593.
We have discussed this question as though the clause in ch, 91, Laws of 1905, relied upon had not been repealed the next day after the defendant was authorized to take possession of the office. The repeal, however, would seem to have taken from the relator any plausible ground for contending that his term of office was continued and extended by virtue of the provisions of that chapter. The result is that the defendant
7. This being so, we must hold that he was justified in taking possession as he did duly 28, 1905.
By the Court, — The judgment of the circuit court is affirmed.
A motion for a rehearing was denied April 9, 1907.