164 Wis. 545 | Wis. | 1917
Two questions aré presented by the record in this case:
(1) Is ch. 6 of the Laws of 1915, amending sec. 113.01, Stats., by which the term of office of the circuit judge of branch 6 of the Second circuit is shortened so as to expire on the day preceding the first Monday in January, 1916, instead of on-the day preceding the first Monday in January, 1911, a valid enactment?.
Relator contends that cb. 6 of tbe Laws of 1915 is void for two reasons: (a) It shortens tbe term of office of a circuit judge, (b) It is a local law and its purpose is not expressed in its title.
In our view of tbe case we need discuss tbe first reason only. Prior to April, 1897, sec. 7 of art. YII of tbe constitution of this state was as follows:
“Eor each circuit there shall be a judge chosen by tbe qualified electors therein, who shall bold bis office as is provided in this constitution, and until bis successor shall be chosen and qualified; and after be shall have been elected, be shall reside in tbe circuit for which be was elected. One of' said judges shall be designated as chief justice in such manner as tbe legislature shall provide. And tbe legislature shall at its first session provide by law as well for tbe election of, as for classifying, tbe judges of tbe circuit court to be elected under this constitution, in such manner that one of said judges shall go out of office in two years, one in three years, one in four years, one in five years and one in six years, and thereafter tbe judge elected to fill tbe office shall bold tbe same for six years.”
Under this provision of tbe constitution there was considerable donbt as to whether tbe legislature bad power to provide an additional judge for tbe Second circuit, and in 1897 sec. 7 was amended to read as follows:
“Eor each circuit there shall be chosen by tbe qualified electors thereof one circuit judge, except that in any circuit composed of one county only, which county shall contain a population, according to tbe last state or United States census, of one hundred thousand inhabitants or over, the legislature may, from time to time, authorize additional circuit judges to be chosen. Every circuit judge shall reside in the circuit from which he is elected, and shall hold his office foi such*550 term and receive such compensation as the legislature shall prescribe.”
Laws were enacted providing for additional judges for the Second circuit from time to time, and ch. 474, Laws 1909, was an act which provided for one of the additional judges, who thereafter (ch. 592, Laws 1913) was designated as circuit court judge for branch No. 6 of the Second circuit.
The legislature being of the opinion that it could, under sec. 7 of art. YII as amended, shorten the term of office of a circuit judge, enacted ch. 6 of the Laws of 1915, and the following cases are cited to sustain the action of the legislature: State v. Douglas, 26 Wis. 428, 430; State ex rel. Martin v. Kalb, 50 Wis. 178, 6 N. W. 557; O’connor v. Fond du Lac, 109 Wis. 253, 269, 85 N. W. 327; Fordyce v. State ex rel. Kelleher, 115 Wis. 608, 614, 92 N. W. 430; State ex rel. Risch v. Trustees, 121 Wis. 44, 48, 98 N. W. 954; State ex rel. Buell v. Frear, 146 Wis. 291, 299, 131 N. W. 832.
Were there no other constitutional provisions than sec. 7 of art. YII, the conclusion contended for might follow. However, there are other provisions. Sec. 6 of art. YII is as follows:
“The legislature may alter the limits or increase the number of circuits, making them as compact and convenient as practicable, and bounding them by county lines; but no such alteration or increase shall have the effect to remove a judge from office. In case of an increase of circuits, the judge or judges shall be elected as provided in this constitution and receive a salary not less than that herein provided for judges of the circuit court.”
Sec. 13 of art. YII provides how judges may be removed and is as follows:
“Any judge of the supreme or circuit court may be removed from office by address of both houses of the legislature, if two thirds of all the members elected to each house concur therein, but no removal shall be made by virtue of this section unless the judge complained of shall have been served*551 with a copy of the charges against him, as the ground of ad- . dress, and shall have had an opportunity of being heard in his defense. On the question of removal the ayes and noes shall be entered on the journals.”
We are in effect asked to hold that by the amendment of sec. 7 of art. VII, adopted in 1897, the constitution provided for another form of removal, to wit, by act of the legislature shortening the term of office of a circuit judge, which to all intents and purposes effects a removal.
That such was the effect of the amendment would come as a great surprise not only to the members of the profession but to the people of the state generally. Nothing in the history of its adoption leads us to suppose.that any such purpose was contemplated either by the legislature who submitted the amendment or by the people who approved it. The constitution having prescribed the particular method by which a circuit judge may be removed, and the power of the legislature to alter boundaries of circuits having carefully provided that the alteration of a circuit should not have the effect of removing a judge from office, the rule of construction expressio unius est exclusio alterius is peculiarly applicable to this situation. State ex rel. Owen v. Donald, 160 Wis. 21, 134, 151 N. W. 331.
We must hold, therefore, that the language of sec. 7 as amended, “Every circuit judge shall reside in the circuit from which he is elected, and shall hold his office for such term and receive such compensation as the legislature shall prescribe,” must be read in connection with secs. 6 and 13 of the same article, and the power of the legislature to fix the term of office of circuit judges cannot be so exercised as to have the effect of removing a circuit judge from office. Oh. 6 of the Laws of 1915 had that effect and is therefore unconstitutional and void.
It may be argued that the incumbent of that office, by voluntarily submitting himself as a candidate, consented to the shortening of his term and that the law did not have the ef-
Was the relator elected circuit judge for branch No. G at the election held April 4, 1916 ?
It is contended that every one is presumed to know the law; that the electors of Milwaukee county therefore knew that there was to be an election on April 4, 1916, for the office of circuit judge of branch No. 6; that the right of the electors cannot be taken away by the failure of election officers to perform the duties imposed upon them by law, and that an election cannot be held invalid because no notice was given; and the following cases are cited as sustaining the proposition that relator was therefore legally elected: State ex rel. Peacock v. Orvis, 20 Wis. 235; State ex rel. Lutfring v. Gatze, 22 Wis. 363; State ex rel. Chase v. McKinney, 25 Wis. 416; State ex rel. Bruce v. Davidson, 32 Wis. 114; State ex rel. Heim v. Williams, 114 Wis. 402, 90 N. W. 452; Janesville W. Co. v. Janesville, 156 Wis. 655, 146 N. W. 784.
In the first place there is no presumption that every person knows the law as a fact. A better statement of the rule is that' ignorance of the law affords no excuse for its violation. It is a rule of administrative law and not strictly a rule of evidence, and has no application to the facts in this case. Topolewski v. Plankinton P. Co. 143 Wis. 52, 72, 126 N. W. 554.
An unconstitutional act of the legislature is not a law; it confers no rights, it imposes no penalties, it affords no pro
Was there an election? In order to answer this question the authorities must be reviewed. After a careful review and examination of the authorities cited above and many others not cited, it appears that two principles are deducible therefrom: (1) Where there is in fact an election at the time and place designated by law, such election is valid although the statutory notice is not given. (2) Where the failure to comply with the law results in a few out of a large number -of electors exercising the right to vote at the time and place designated by law, there is no election. A restatement of the cases would extend this opinion to an undesirable length. The law is stated by the court in State ex rel. Chase v. McKinney, 25 Wis. 416, 420, as follows:
“Furthermore, it incontestably appears from the answer that no notice whatever was given that a district attorney was to be chosen at that election, either by the posting of the notices of the election by the officers whose duty it was to post them, or by the newspapers, or in any other manner; and the great body of the electors of the county voted for other officers, but cast no votes for district attorney, because they did not know that one was to be elected. As a consequence, in a county consisting of forty-one election districts, in which 7,129 votes were cast for other officers, there were cast for the relator 149 votes in five of the election districts; in thirty-six districts no votes being cast for district attorney. Now, under these circumstances, it seems to us impossible to say that there has been any valid election for district attorney such as the law contemplates. Certain it is, that the great mass of the electors of the county have exercised no choice as to who should fill the office of district attorney. No official notice, nor any other kind of notice, was given that a vacancy*554 existed in that office, which they were required to supply at the election. It is obvious, therefore, that there has been no expression of the will of the electors as to who should fill the vacancy.”
In all these cases except the Williams Case and the Janesville Case elections were held at a time when the electors were not required to use an official ballot in voting. Since the decision of these cases fundamental changes have been made in the laws relating to elections. The legislative regulations in force at the time the election in question here was held were numerous and minute and must necessarily have affected one way or the other the minds of the electors. An elector was not permitted to prepare his ballot in any form he chose. When he approached the voting place he was handed a ballot which gave him notice of the offices which were to be voted for and of the candidates who were entitled to have their names printed upon such ballot. The law forbids the use of any other ballot (secs. 6.25 and 6.41, Stats.), and, subject to his right to erase the name of any candidate whose name is printed upon the ballot and to write in another, or to write in the name of a candidate for any office, the name of the office appearing in the appropriate place upon the ballot, he was required to express his choice in the manner indicated on the official ballot, and the use of stickers was strictly forbidden. Sub. (11), sec. 6.23, Stats. While there can be no claim in this case that the relator did not attempt to give general notice of his candidacy and caused notice of his claims to be generally and widely circulated, it also appeared at the same time that the secretary of state had upon his demand refused to give notice of an election, and likewise 'the county clerk had refused his demand that notice of an election be given. The people understood that the attorney general had ruled adversely to relator’s claim that his name should be placed on the official ballot, as well as the county clerk, whose duty it was to provide the official ballots.
Along with all the other facts which were commonly known was the fact that the courts stand open to afford relief to a person situated as was the relator and that no appeal was made to the courts for the exercise of the power possessed by them. An application by relator for the exercise of the original jurisdiction of this court under circumstances such as are presented by this record would have met with a favorable and speedy response, as the records of this court in recent years show.
If failure to give the statutory notice were the only defect appearing, we might feel bound, in view of the prior decisions of this court and of the very extensive notice which relator gave, to hold that there was a valid election although but a comparatively few electors voted, as in the Gatze Case (22 Wis. 363). Here, however, there was not only an entire want of official notice of an election, but there was a complete failure to comply with the election laws in any re
It is to be regretted that the relator did not seek judicial relief at the appropriate time, when the result would have been that the electorate generally would have been officially apprised of the fact that an election for the office in question was to be held. However, it clearly appears upon the facts presented by the record that the electors did not have such belief and that the refusal of the election officers to give the notice required and to comply with the other requirements of the law relating to the holding of an election resulted in no election in fact being held.
The conclusion arrived at in this case does not overrule the former decisions of this court beginning with State ex rel. Peacock v. Orvis, 20 Wis. 235, but the principles embodied in those decisions are adhered to. The situation presented by this record, in view of subsequent statutory regulations relating to elections, and especially the provisions prohibiting the use of any other than the official ballot (sub. (2), sec. 6.25, Stats.) and requiring the voter to indicate his choice in the manner specified in ch. 6, clearly distinguish this case from any of the cases referred to. These laws have been in force for a long period of time and they have not been attacked as unreasonable, and we must therefore assume that they are reasonable, constitutional legislative regulations. The failure of the administrative officers as well as the candidate to comply with the requirements of these laws presents a different situation than any heretofore considered by this court.
It has been suggested that the present incumbent of the office should be made a party to these proceedings. We know judicially that the present incumbent can hold his office only until his successor is elected and qualified; that in any event there must be an election at the coming spring election for the office in question; so that the rights of the present incum
By the Court. — Motion to quash writ granted without costs.