111 Wis. 19 | Wis. | 1901
This is an appeal from an1 order overruling a demurrer to the complaint in an action to oust and exclude the defendant from the office of school commissioner of the Third ward of the city of Neenah, on the ground that he had unlawfully usurped and intruded into the same. The complaint alleges, in effect, that during the times mentioned the relator was an elector, resident, and taxpayer of the city; that the city was divided into four wards, numbered accordingly; that there were two aider-men from each ward; that by the charter of the city one commissioner for each ward in which the term was about to expire was to be annually elected prior to the 1st day of June, by the common council, voting by ballot, for the term of two years; that in 1898 one John M. Callahan, a duly qualified elector in and for the Third ward, was duly elected such commissioner of that ward, and duly took and filed the oath of office, and on the first Monday of July, 1898, entered upon the discharge of the duties of such office, and continued to exercise such duties to the expiration of his term, in July, 1900; that in May, 1900, the common council from time to time attempted to elect a successor to Cal
The action was properly brought by the relator in the name of the state. Sec. 3466, Stats. 1898.
The charter is therein “ declared to be a public act ” that “shall be liberally construed in all courts of this state.” Sec. 183, ch. 184, Laws of 1883. Counsel for the defendant contends that by such liberal construction it should be held that the four aldermen and the mayor had the power to elect the defendant as such school commissioner. It is conceded, however, that four aldermen and the mayor would have had no power to so elect if there had been only five, six, or seven aldermen present; for in that event there could have been no equal division “ of the votes of the aldermen entitled to seats in the common council,” as required by the charter. The contention is that as the eight aldermen were all present, and four of them voted for the defendant, and the other four were divided between two other candidates, there was an equal division “ of the votes of the aldermen entitled to seats,” upon the single proposition whether the defendant should be elected to the office. In other words, counsel contends that there were at the time three propositions pending
By the Court.— The order of the circuit court is affirmed.