21 Wis. 443 | Wis. | 1867
The most material question, as it seems to me, and that on which all others turn in this application, is, whether the office of a member of the county board of supervisors, elected for a district, is a local office in the sense that the incumbent must reside in the district and continue to reside there until the end of his term, or forfeit his office. This
The election by assembly districts was adopted by the legislature as a just and convenient method of making choice of these officers; but a supervisor elected by a district is no less a county officer than one elected by the voters of the county at large in counties where such a supervisor is to be chosen. Looking, then, to the duties to be performed, we find that they are not in any particular local, or such as must be performed within certain districts or localities of the county. Every supervisor is emphatically a county officer. Every act which he is required to perform is an act for the county. As an individual officer he has no authority, and can exercise none of the functions of an officer within the district for which he was elected, or within any other. All the power is vested in the board of which he is a member, styled the county board. This board is declared to be a body corporate and politic, and the same, or a quorum, when regularly convened, must discharge every official duty and perform every official act. What reason then is there for saying that a member of this board, or person chosen to continue the succession of the body corporate, should reside in a particular district, or in that for which he was elected ? It is said that it is a representative office, and that to represent his constituents the supervisor must reside in the same district with them. I have already endeavored to show that the supervisor represents not his district in particular, but the county at large. But suppose that he represents the district : is it necessary for that purpose that he should reside in it? Is it not competent for the legislature, in the case of offices which they have the power to create, to provide that in elections by part only of the voters of a county, they may elect a candidate from the qualified electors of the county at large ? It is well known that in the English House of Commons very
It is also said that the idea of residence in the district is confirmed by the provision that the governor, in filling a vacancy, must appoint some suitable elector of the proper district. There may be,' and I think there are, very good reasons why the governor, in making appointments, should be thus restricted, and yet not the electors. The governor being absent and unacquainted with the peculiar interests to be represented, might not be entrusted to select a person not a resident of the district, whilst the same power might be safely given to the resident electors themselves. It seems to me that the limitation upon the power of the governor, inserted, as it were, ex industria, rather tends to show that the voters may, if they choose, select a supervisor from among the qualified electors of the county at large.
Again, it is said that the duties of a supervisor are local
For these reasons, I am of opinion that the office is not local, or strictly representative as to the election districts, but those are divisions for convenience merely in providing for the continuance of the body corporate of which Mr. Walsh is a member; and consequently that it is immaterial to bis tenure that under the new apportionment the district for which he was elected has been divided and lost. He holds to the end of the term for which be was chosen, as a supervisor elected for an .even numbered district; whilst at the annual' elections coming after the new apportionment, supervisors for the odd and even numbered districts respectively are to be elected each alternate year, according to the districts as they exist under such apportionment, and as provided in chapter 75, Laws of 1865. If, under the new apportionment, more districts are created in any county, then elections are to be held in such additional districts according to their number; and if also it should become necessary to elect a supervisor at large, where none before had been elected, then an election for such supervisor must be bad.
Under this view of the law harmony prevails, and,the system established by the legislature for the election of members of the county board, the repeal of which was clearly not intended, remains in force. Any other view leads to such unspeakable confusion, that I should feel obliged to bold, as was intimated in the letter of advice of the late attorney general
But suppose I am wrong in what I have said — and I am not very positive, — and that the statute requires the supervisor to reside in the district at the time of his election, it does not then follow that the subsequent division of the district ousts him from office. The other clause of subdivision 4 of sec. 2, ch. 14, R. S., above cited, provides that every office shall become vacant on the incumbent’s ceasing to be an inhabitant of the district, county, town &c., for which he shall have been elected, if such office shall he local. I have shown, I think, that the office of supervisor is not local as to the district for which he is elected; and if not, his subsequent removal from the district to another part of the same county, does not vacate his office. If his removal does not terminate his right to the office, it seems clear that the division of the district by act of the legislature, without intertt to oust him, ought not to have that effect. I think it does not.
Eor these reasons, I am of opinion that the motion to quash should be overruled.
It is very apparent from the legislation upon the subject, that the legislature intended to create or provide for county boards of supervisors, the members of which should hold their office for two years, and one half of whom should be elected each alternate year. This is clearly manifest from the law of 1865. And I am inclined to the opinion that the per
But still, though this were so, I do not think it necessarily follows, under the facts set up in the relation, that Walsh was legislated out of office in consequence of the change of his district by the apportionment law of 1866. I do not think his duties are local in such a sense that he would cease to be a supervisor when no longer an inhabitant of the district as changed by the legislature.
By the Court. — Motion overruled.