22 Wis. 363 | Wis. | 1867
Tbe court has arrived at a conclusion in this case to which I have assented with much reluctance.
Tbe defendant in error was duly elected county judge of Ozaukee county in April, 1865. On tbe 2d of January, 1866, be entered upon tbe duties of bis office, having previously complied with tbe provisions of sec. 157, chap. 13, R. S., for tbe purpose of qualifying. Tbe oath required by that section was administered by a notary public, and was filed with tbe county treasurer. At tbe town elections in
In support of this conclusion it is claimed that the county judge must qualify according to the requirements of sec. 92, chap. 13, instead of sec. 157. That section relates spe.-cifically to the office of county judge, while the latter relates to county officers in general.
There is no rule of construction more reasonable, and none better settled, than that special provisions of a statute in regard to a particular subject, will prevail over general provisions in the same or other statutes, so far as there is a conflict. This rule is thus stated in Dwarris on Statutes, p. 658 : “ "Where a general intention is expressed, and the act also expresses a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception. While, if a particular thing is given out or limited in the preceding parts of a statute, this shall not be taken away or altered by any subsequent general words of the same statute.” This rule would seem to be directly applicable here, and would require that the provisions of sec. 92 should govern in respect to the mode in which county judges should qualify, so far as there is any conflict between that and the general provisions of sec. 157. So far as relates to the form of the oath, there is perhaps no substantial difference. The latter provides that the officer shall take the oath prescribed by the constitution, which requires him to swear that he will
So, also, in respect to the officer before whom the oath may be taken, there is no conflict between the two sections. Section 92 provides that it “ may be taken ” before the clerk of the circuit court, or before any justice of the peace. Its language is permissive, and not exclusive. It may well stand with section 157, which enlarged the authority and allowed the oath to be taken before any officer authorized to administer oaths.
But there is an irreconcilable conflict between the two in respect to the place where the oath is to be filed. Section 92 provides that it “ shall be filed in the office of the clerk of the circuit court,” while the other requires it to be filed with the bond at the office of the county treasurer. It is clear that it was not intended that it should be filed at both places. It could not' be, as only one oath is required to be taken. One or the other of these sections must govern; and, in accordance with the rule above stated, we must hold that section 92 governs, and that the oath should have been filed in the office of the clerk of the circuit court. It follows that the defendant in error had not qualified.as the law required.
What effect did this failure have,upon the office? This question is answered by a positive provision of the statute. Section 2, chap. 14, provides that “ every office shall become vacant” by the refusal or neglect of the incumbent “to
A vacancy existing, what was the effect of the subsequent proceedings ? In the first place, the legislature passed an act in March, 1866, authorizing the incumbent to file his oath with the clerk, and providing that it should have the same effect, when so filed, as though it had been done sear-sonably. ~We have no doubt that it was competent for the legislature to pass such a law. It would not be an attempt to legislate a man into office without an . election. The incumbent had been elected.; and the law in question was a mere authority to supply a defect in his proceedings to qualify. And if the incumbent had acted under its authority before the election of the relator, we think his tenure of office would then have been good. But this act did not attempt to change the existing condition of the office. A vacancy having already occurred before its passage, it continued to exist until the election at which the relator received a majority of votes. And if that election was legal, so that the relator acquired a right to the office by virtue of it, the incumbent could not afterwards defeat his right, by qualifying under the authority of this act. It must be held only as an authority under which he might have qualified provided he did so before the rights of other parties intervened.
In tbe case of The State v. Orvis, 20 Wis., 235, tbis court bas already beld that tbe omission to give notice of an election does not vitiate it, and that tbis rule is applicable as w.ell to elections to fill vacancies as to those for tbe full term. There are cases supporting such a rule. But if it were a new question here, I should doubt its propriety. I can readily admit its correctness as applicable to tbe regular elections to fill tbe full term of office. Tbe electors may well be presumed to know when the regular terms of public officers begin and end. They usually do know it in fact. But in respect to vacancies it is entirely different. It is true they would be very likely to know it, where tbe vacancy was occasioned by tbe death of tbe incumbent, as in The State v. Orvis. But where it was occasioned by tbe refusal or neglect to qualify according to law, as in tbe present case, it would generally be unknown to most of tbe people, unless some notice was given. Tbe general presumption that people are supposed to know tbe law, is not sufficient, for it is not a knowledge of tbe law merely that is required, but a knowledge also of facts. It may be assumed that tbe people knew that tbe law required tbe oath to be filed in tbe office of tbe clerk. But it cannot be assumed that they knew it bad not been filed there, but bad been filed in tbe office of tbe treasurer. It is very obvious, therefore, that any person who bad discovered that fact might quietly circulate tbe information among bis friends and get himself elected at the next election, and yet tbe fact that there was an election for that office remain unknown to tbe majority of tbe voters. If such a state of facts were presented, I should not hesitate to bold that tbe election was invalid for want of actual notice. And I think tbe case of The State v. Orvis does not decide tbe contrary. That simply decided
The question here indicated, I think, is not presented by this case. The fact that so few votes were given for the incumbent, who had been elected only a year before, might furnish ground for a suspicion that his friends were not generally aware of the election. But the case cannot be determined on suspicions. -. If such were the fact, it should have been alleged in the answer and been made to appear by the evidence. On the record as presented, we must assume that the only objection was the want of the statutory notice. And as that has already been held insufficient, we must, adhering to that decision, hold that the election of the relator was valid.
In what I have said as to the effect of a want of actual
Tbe judgment must be reversed, and tbe cause remanded with directions to enter judgment for tbe relator on tbe facts as found.
By the Court. — Ordered accordingly.