35 Wis. 93 | Wis. | 1874
The statute' prescribing the mode of proceeding and the duties of the inspectors in the canvass of votes after the polls are closed (R. S., ch. 7, sec. 51; 1 Tay. Stats., 226, § 72), declares that “if two or more ballots shall be found so folded together as to present the appearance of one ballot, they shall be laid aside until the count of the ballot is completed; and if, upon a comparison of the count and the appearance of such ballots, a majority of the board shall be of opinion that the ballots thus folded together were voted by one elector, they shall be destroyed.” Two ballots cast for the relator in the first ward of the city of Prescott, having printed thereon, “ For County Judge, William Hawes,” “For County Judge, William Hawes,” were laid aside and not counted for the relator, but were destroyed by the board of inspectors. Both names were upon the same slip of paper, not cut apart
The town of Isabelle was lawfully vacated by order of the county board of supervisors, and the territory thereof attached to and made a part of the town of Hartland. The order was passed in due form of law, pursuant to the powers conferred upon the board by sec. 28, ch. 13, R. S. (1 Ta.y. Stats., 298, § 36), and was published in the manner prescribed by sec. 30 of the same statute (1 Tay. Stats., 300, § 38). The only objec
The statute directing the clerk to make distribution is in these words: “ Such clerk shall order a number of the papers containing any such orders or determinations, sufficient to distribute one to each of the town clerks of his county, and so distribute them ; and such clerks shall, on receipt thereof, file the same in their respective offices.” It will be observed that the statute does not make the force or operation of the orders and determinations of the supervisors dependent upon the obtaining and transmission of such newspapers. 1’t contains no express words to that effect, but only in general terms imposes the duty upon the clerk. It is consistent with the language, and with what may he supposed to have been the intention of
Our conclusion therefore is, that there was no town of Isabelle at the time of the election in question, and that the voters residing in the territory formerly constituting a town by that name had no authority to open a poll, and deposit, receive, canvass or return votes at such election. The election so held was irregular and void, and the acceptance of the return and canvass of the votes as from a town of that name, by the county board of canvassers, was unauthorized. The number of votes so counted by the county canvassers, and all purporting to have been cast for the defendant, and which resulted in the giving to'him of the certificate of election, 'was fifteen. Strike out those fifteen votes, and add to the other votes lawfully given for the plaintiff the two votes improperly rejected in the first ward of the city of Prescott, and the plaintiff received a clear majority of all the votes cast in the county, even if we concede the illegality of the several votes given for him which the defendant claims to have been illegal. It is unnecessary to consider the questions of the legality of the last votes, or of any others, and we pass them unnoticed.
A question has presented itself to the mind of the court as to the right to further prosecute this action, and whether any judgment can be pronounced in it after the expiration of the term of office for which the relator was elected, and during which the defendant usurped and unlawfully held. Under the statute, the object of the action is not merely to oust the incumbent, but the right of the person lawfully entitled to the office may also be tried and adjudged; and if the defendant is
This action was instituted during the lifetime of the office claimed by the relator, and into which it is charged the defendant had intruded, and hence there is no difficulty in the way of its being prosecuted to final judgment, notwithstanding the expiration of the term.
The judgment must be reversed, and cause remanded for a new trial according to law.
By the Court. — So ordered.