State ex rel. Hawley v. County Board of Supervisors

88 Wis. 355 | Wis. | 1894

Penney, J.

1. The county board of supervisors, in receiving and acting upon the petition for submission to a vote of the electors of the county of the question of the removal of the county seat, under sec. 655, S. & B. Ann. Stats., exercise powers of an administrative character, but do not act in any proper sense in a judicial capacity, although, as in the case of many other public bodies and officers, it becomes necessary for them to pass upon and determine questions of fact in exercising their legitimate functions. They do not proceed after the manner of judicial tribunals, or use .any set form or process in exercising their powers, but proceed very much after the method of legislative bodies. It would, we think, savor too much of unnecessary formality and technical refinement to hold that two petitions having the signatures of different qualified signers for the submission of the question of the removal of the county seat could not be considered and acted upon as one petition. ‘We think, therefore, that the second petition, though presented while the first was under consideration, should have been considered, and both acted upon together. The return concedes that forty of the signatures on the second petition were those of qualified signers.

2. It was held in La Londe v. Supervisors, 80 Wis. 380, that, before final action by the board, electors who had signed such a petition might lawfully withdraw their names. It is plain that the withdrawal from the first petition of the names, made at the November session, and from the second petition, made at or before the April meeting of the board held to frame and adopt a return to the alternative writ, were properly made; and we are also quite clear tha't the withdrawal of the sixty-four names from the first petition at the April meeting was in due season and effective. The alternative writ goes upon the ground that the matter of the petition had not been regularly and finally determined, and the object of the writ is to secure proper final action thereon. The signatures of two fifths of the electors who voted at the last general election were essential to the jurisdiction of the board, and the proceeding, until .proper final action is had, must be regarded as in fieri; and therefore it is competent to show by the return, or by an amended or supplemental return, any valid reason why the alternative writ should not be obeyed, though it was discovered or arose after the writ was served. The return concedes that there were on th'e first petition the names of 964 qualified signers, and alleges that sixteen withdrawals made at the November meeting had been overlooked. So, deducting these and the sixty-four withdrawals at the April meeting, it would leave 884 names properly on the first petition, to which are to be added the forty names of qualified signers on the second, making 924 names properly on the petitions. It required the signatures of 1,016 qualified signers to justify the submission of the question of removal to a vote of the electors.

3. The committee, at the April meeting, and the board as well in adopting its report, determined that certain deductions should be made from the 136 names on the first petition, the signatures of which in certain respects varied from the names on the poll lists, thus leaving only 108 names, and refused to take evidence as to the identity of these persons with the persons whose names appeared on the poll lists. It was clearly averred that these persons were competent signers, and the general denial of all allegations not admitted does not countervail the effect of this conceded action of the board. The question is thus presented whether the board should have received evidence, by affidavit or otherwise, to explain whatever was ambiguous or uncertain in respect to these signatures when compared with the poll lists, as to show that N. Jensen, Byron De Golieiy W. E. Paulson, etc., who thus signed the petition, were the same persons named on the poll lists as Neis Jensen, Byron A. De Golier, and W. A. Paulson, and the like. While it may be conceded that the board had no power to compel the attendance of witnesses and to require them to submit to examination and cross-examination under oath as in a court of justice, yet when the nature of the proceeding, the powers of the board, and the practical necessities of the case are considered, we think it clear that the proof and method of proof tendered were competent, and that in refusing to receive it and rejecting these names the board acted arbitrarily and illegally, and that for the purpose of this appeal it is proper to assume that if evidence had been received it would have appeared that these 108 signers were competent and legally qualified, And if those names are added to the 924 above set forth the wThole number would be 1032,— a greater number than was necessary to authorize the submission in question.

The proceeding in question is not in its nature final. It decides only that an election shall be held on the question of removal, and errors in signing the petition, and consequent ambiguities and uncertainties, will necessarily arise, as the names on the poll list are taken down by the clerks hastily, and oftentimes in the briefest or very inaccurate manner. These uncertainties and ambiguities must be settled by the board in the same way that they settle any other question of fact coming before them in the discharge of their duties; otherwise, the many errors in names which occur on poll lists in hastily conducting elections will, in a very great degree, render the execution of the law in question impracticable. Strictly legal evidence, such only as a court would receive, cannot, from the nature of the case, be obtained. That evidence to resolve such ambiguities or uncertainties would be competent in a similar case in a court of justice cannot be, and is not, denied. The admissibility of the evidence tendered for the purpose stated cannot, we think, be doubted. Ayres v. Moan, 34 Neb. 210; Crews v. Coffman, 36 Nob. 824. Good faith on the part of the board required it to act fairly and impartially in the matter, and to give a reasonable opportunity to parties interested .to produce such proof as they might be able, and, when produced, to weigh it in like manner. No doubt the'decision of the board, regularly and fairly made, as to the facts proved, would be conclusive; but here the board illegally refused to consider any facts dehors the petition and poll lists, and denied the right, essential to a fair hearing, of producing evidence. A decision thus arrived at cannot be held conclusive without violating every principle upon which a fair and impartial determination depends. The case of La Londe v. Supervisors, 80 Wis. 380, affords no support to such a method of procedure, and does not decide that extrinsic evidence may not be received to remove such ambiguities or uncertainties. Such evidence is clearly necessary to enable the board to determine whether “the names of the voters on the poll lists have been signed to the petition.”

The return shows upon its face that the respondents have not fairly pursued their authority, and have not executed the discretion confided to them in a lawful manner. It is the proper function and use of the writ of m,andamus to keep subordinate and inferior bodies and tribunals within their jurisdiction, and to compel them to exercise the discretionary powers vested in them according to law. The principle -which governs such cases is that the writ lies to compel the performance of specific duties imposed by law upon public officers or bodies, in the absence of other adequate remedy. It will not lie in any matter requiring the exercise of official judgment or resting in the sound discretion of the officer or body to whom a duty is confided by law, either to control the exercise of that discretion or to determine the decision which shall be finally given, but only to set the party in motion and compel him to fully exercise bis functions when he has refused or neglected to exercise them at all. 2 Spell. Extr. Eelief, §§ 1432, 1433. And it lies to correct arbitrary and illegal action. Merrill, Mand. §§ 39, 40; Rex v. Justices of West Riding, 5 Barn. & Adol. 667. The function of the return is net simply to show what would amount to prima, facie right in the respondent, in the absence of any allegation to the contrary, but to show a right to refuse obedience in view of the allegations it contains, and if it does not do this it is demur-rable. State ex rel. Cothren v. Lean, 9 Wis. 279. The return in this case avows and does not justify the refusal of the board to receive and act on evidence as to the 108 names mentioned, or the refusal to act upon the second petition, and to this extent it appears that the relator is entitled to relief. The order of the circuit court overruling the demurrer should be reversed.

By the Oowrt.— The order of the circuit court is reversed, and the cause is remanded with directions to sustain the demurrer.