187 Wis. 405 | Wis. | 1925
Sec. 60.20 of the Statutes, among other things, provides for the filing of an official oath within ten days after the election or appointment of a candidate or his notification thereof, if required, and also provides as follows-. “The neglect to file such oath, or an official bond when
Sec. 17.03, Stats., among other things provides:
“Any public office, including offices of cities, villages and school districts, however organized, shall become vacant upon the happening of either of the following events: . . .
“(7) The neglect or refusal of any person elected or appointed ... to any office to take and file his official oath or to execute or renew his official bond, if required, or to file the same or either thereof in the manner and within the time prescribed by law.”
Under the provisions of sub. (4) (e), sec. 19.01, Stats., the oaths of all town officers’elected or appointed, except the town clerk, shall be filed in the office of the town clerk; and sub. (5) of sec. 19.01 provides: “Every public officer required to file an official oath or an official bond shall file the same before entering upon the duties of his office; and when both are required, both shall be filed at the same time.”
Under the general demurrer herein interposed, all the material allegations of the complaint must be deemed as true. Defendant’s counsel even goes further, and admits the actual truth of the allegations contained in the complaint. He takes the position that under the statutes above referred to a vacancy occurred in the office when the defendant failed to file his official oath within ten days after the election, and that the supervisors of the town thereafter were duly authorized to fill such vacancy by appointment; that in making the appointment when they did they acted fully within their rights, and performed a duty which was imposed upon them by law; that the complaint contains no allegation by which the relator asserted his title to the office prior to the making of the appointment, or that he offered to qualify by taking and filing his official oath, and that therefore it must be assumed that the supervisors performed their duty as required by statute when on the 16th day of April they appointed the defendant to the office in question.
The present action is one of quo warranto, and lies only against one who is in the possession of an office, and not against one who merely lays claim to the office, or who has
During the ten-day period in which under the statute the defendant should qualify by filing his oath, there was no incumbent of the office; therefore quo warranto proceedings could not be prosecuted. During this ten-day period, while this certificate was outstanding and in force, the defendant was the person who, under the presumptiSn created by law, was entitled to the office. Under these circumstances, the filing of an oath by the relator within this period would have been a mere idle ceremony. State ex rel. Ackerman v. Dahl, 65 Wis. 510, 27 N. W. 343; People ex rel. Finnegan v. Mayworm, 5 Mich. 146; People ex rel. Benoit v. Miller, 16 Mich. 56; Little v. State, 75 Tex. 616, 619, 12 S. W. 965.
When, however, the ten-day period had expired, the defendant had forfeited all rights to the office under the election, and from that time on nothing whatever stood in relator’s way to prevent him from qualifying by filing his oath and from assuming his official duties. In other words, the time during which the filing of an official oath by relator would be deemed an idle ceremony had passed. The complaint contains no allegation to the effect that such official oath was ever filed or attempted to be filed, or that any one prevented the relator from taking the necessary steps for qualification for the office, or that the defendant or the supervisors of the town, or any other person or persons, by fraud or illegal means, interfered with and obstructed him in taking the necessary proceedings to qualify; nor is there any allegation pleaded in the complaint in the nature of an excuse for plaintiff’s failure to qualify or to attempt to qualify.
While the authorities above cited hold that the ten-day period provided for by statute acts as a limitation upon the one who holds the certificate of election, there is no statute that has come to our notice which fixes the time within which the candidate who is actually the successful one may qualify
We have read carefully the cases above cited, some of which are referred to in the brief of the relator. The facts in these cases are radically different from those involved
From the foregoing we conclude that the order of the circuit court must be affirmed.
By the Court. — It is so ordered.