5 Wis. 308 | Wis. | 1856
By the Court,
The matters principally relied upon by the relator, to sustain his demurrer to the return of the respondent to the alternative writ of mandamus, are, 1st, That the act to provide for the removal of the county seat of La Eayette county, never became a law, for the reason that it was not approved by the governor of the state; nor passed by the Senate and Assembly by the requisite number of votes, after the bill was returned to the house in which it originated, by the governor, with his objections thereto. 2d. That the act provides for the removal of the county seat from Shullsburg to Avon, in case a majority of the votes cast on the question of the removal, shall be in favor of the removal, without any further action on the part of the legislature, and, 3d. That a “ majority of the voters of the county voting on the question ” of the removal of the county seat, have not voted in favor of its removal from Shullsburg to Avon.
The fact assumed by the relator to sustain the first position taken, is, that William A. Barstow, who approved of the act in
The general doctrine that the acts of officers de facto, while in office, are good as to third persons, we suppose to be too well settled to require the citation of authorities to support it; and we cannot perceive how this case differs from the ordinary one of an office unlawfully held by one, to the exclusion of the person who is lawfully entitled to it. In the case of The State ex rel. Bashford vs. Bar stow, decided at the last term of this court, it 'was contended that the office of governor was something more than an office, as that term was used in the constitution. This argument was pressed upon the court, for the purpose of showing that we had not jurisdiction to inquire by what right the respondent held the office. It was conceded, that if this was strictly an office under the constitution, the jurisdiction existed; but it was contended that the governor constituted a separate department of the goverment, and for that reason was beyond the jurisdiction of the court. We, however, decided that the office of governor was strictly and properly an office, under the constitution, and held that the court had jurisdiction to inquire by what right the respondent held it, and exercised its duties. We are entirely satisfied that this decision was correct, and must therefore apply to the acts of Gov. Barstow, while he had possession of the office, the rule uniformly applied by courts to the acts of officers de facto.
We must hold, therefore, that the act of the legislature is not void, for the reason that it did not receive the approval of the governor.
We do not think that the act of the legislature, in question, is
The clause of the constitution relied upon to sustain this position,- is ¡as-follows .{Art. 13, - § 8) ■ ‘INo: county seat, shall bé removed,. until-the-- point ¡to which it is proposed ¡tor-be removed,shall -be fixed bylaw, and a majority of-the-voters of the county,' voting- on the question, shall have voted in- favor'of-' -its removal to such point:” We. think this-clause of the ¡.constitution is complied with,'if the point to. which.; it--Is- proposed ■ -to' remove the county seat is fixed by law, and the'voters vote in -favor of-the'-re1 moval,- before the removal-: takes placean fact. - = This is done - by the act in question,-which provides for-the removal of the county seat,- to Avon,-in case a majority-of -the voters of - the county should vote in favor of the removal. • The legislature is not pro*' kibited from passing an ¡act which ¡provides for the removal !Of a: county seat (in case a majority of the-voters of the county Vote in its favor),- before the vote is taken. • .It is enough "if -the removal .itself does not take pl-ace until a majority of the-voters have so voted. . .
We¡ will now proceed to notice thé'-third point relied upon by the: relator, .which is,-that the- question of-the'-removal of the county seat from Shullsburg to Avon, -has not been 'determined in favor of such removal by a majority of tbe ¡voters of the county voting on the question. -■ .i :--
. The; provision of-the constitution■■ above-quoted is-clear and explicit, and by it the legislature is prohibited from femoving-a county seat, ¡until a majority-of tbÁvotérs ó'f the'county;‘voting on. the question, shall bave determined in favor of tbe removal. By the word “ voters,” as that term is used in this section' of the-constitution, we suppose are meant legal voters, those who have
A reference to the constitution (Art. 3, §, 11; shows • that these are persons who are .required to reside.in the state, one year, next-before the election at which they vote.- If they possess the: other qualifications specified,in the constitution,-.and have .resided: in the state one year next preceding any election, they are allowed to vote at such election. It is contended by the relator, that the' act of the legislature which authorized the voters of the County to vote on the question of the removal of the county seat-from Shullsburg to Avon, did ;not permit persons-to vote who possessed the qualification as to residence in the state, which -the constitution prescribes; :so that the legal voters of the county have never had an opportunity to vote on. the question- of the-removal.
The first section of, .the act of the. legislature- in question provides that'the “qualified electors-.of the. .county off-;La Fayette ” shall be authorized to vote; &c., but the third- section-provides that “ no person shall be. deemed qualified-to vote upon-the question of the removal of the.-coun.ty seat, provided for fin-this act, unless he shall have resided in the town where he offers his vote at least thirty days (and who .is - not a permanent resident of the county) previous to th.e first day o.f April, A. D. 1856.” As the first day of April was the day fixed in the act for taking the vote, it will .be seen that the act requires every person who should vote on the question of removal .should, have resided in the town where he offered to vote thirty days -previous- to-lhe^ time when the vote was taken. -.It was. contended on the-.part-of the respondent that this provision of the act was in-accordance with the constitution, and that -if-it was a.violation of that -in--strument, still the vote which was taken should have the same-effect given to it as though the-qualifications.of the voters,-.as fixed in the.act, had been the: same .as-those prescribed in the. constitution, unless it appeared that persons who possessed the constitutional qualifications of voters had offered to vote at: the election in sufficient numbers to change the result, and had been
We have no doubt that the qualifications of the voters as fixed by the act are, in respect to residence in the state, quite different from those prescribed in the constitution. The latter instrument is explicit; it provides in express terms that a person who possesses the other qualifications mentioned, and who has resided in the state one year next preceding any election, shall be deemed a qualified elector at such election.
It seems to us clear, that by requiring a residence of thirty days in the town where the elector offers to vote, the legislature have added a qualification not contained in the constitution, and which is repugnant to its provisions. The constitution provides, that if a person possesses certain qualifications, and has resided in the state one year next preceding any election, he shall be deemed a qualified elector at such election; while the act of the legislature in question provides, in effect, that this shall not be sufficient, but that he shall, in addition, have resided for thirty days previous to the time when the election is holden in the town where he offers his vote.
We have no doubt that the legislature have the power to provide that a person who has a right to vote under the constitution shall be allowed to exercise this right only in the town where he resides, because this would be only to prescribe the place where a right which he possessed under the constitution shall be exercised, and fixes upon the most convenient place for its exercise. Such a provision does not add to the qualifications which the constitution requires; but an act of the legislature which deprives a person of the right to vote, although he has every qualification which the constitution makes necessary, cannot be' sustained.
We will now proceed to inquire what effect this provision of the act of the legislature in question must have upon the vote which was taken upon the subject of the removal of the county seat from Shullsburg to Avon.
It is contended by the responclant, that full effect should be
We do not think that this view of the matter can be sustained. The question is, whether the legal voters of the county have had an opportunity to express their wishes for or against a removal of the county seat of the county. If the act of the legislature had submitted the question to the legal voters of the county, then a most material question of fact might have arisen in regard to the qualifications of those who were allowed to vote, or whose votes were refused by the inspectors of election. But the act of the legislature in question, in express terms prohibited persons from voting, although they had all the qualifications which the constitution requires. They, therefore, were not allowed by the act to vote, and if they had offered to do so their votes would not have been received. It follows that the legal voters of the county had no opportunity given them by the act to vote on the question; in other words, the question of the removal of the county seat was not submitted to the legal voters of the county, and the vote which Ras been taken cannot, for this reason, show whether those who, by the constitution, must give their assent to the removal before it can take place, are in favor of or against it.
We must therefore hold, that the county seat has not been changed from Shullsburg to Avon, and for this reason award a peremptory mandamus.
Mandamus awarded.
