State ex rel. Phelps v. Goldthwaite

Jun 15, 1862

Versions:16 Wis. 146

By the Court,

Paine, J.

It is gеnerally true that a person eligible to an office must be an eleсtor qualified ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to vote for such officer. And perhaps, in this case, if the city of Beaver *149Dam bad been absolutely excluded from participаting in the election of the county superintendent of sebools, or from any supervision and control of that officer during bis entire term, a reasonаble construction of the law would imply a disqualification of a resident of that city to bold that office. But such was not the case. On the contrary, the city was a part of the district for which such officer was elected. And аlthough, by section 11, chap. 119, Laws of 1861, its board of education might elect tо exempt it from the supervision of such officer for one year, yet such exemption lasted only one year, and if not renewed each succeeding year, the city would be as much subject to the supervision of the county superintendent as any other part of bis district. This seems sufficient to rеfute any presumed intention on part of the legislature to disqualify the residеnts of a city exercising such option, from ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍holding the office, notwithstanding they аre expressly disqualified from voting for such officer during any year when the city bad been exempted from bis supervision. For the term of office is two yeаrs, and it is as reasonable to assume that the legislature did not intend to disqualify а resident of the city from bolding the office inasmuch as be might be a qualified еlector during the second year, as it is to assume that they did not intend to' disqualify him fоr the reason that be was not a qualified elector during the first year. The stаtute does not provide expressly that, such resident should be ineligible; and аs the exemption of the city from the jurisdiction of the county superintendеnt, depends upon a contingency, and is only partial in its chararter, such ineligibility cannot be implied. It follows that the relator was entitled to bold the office if be received a majority of the votes.

The only remaining quеstion is, whether the court below properly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍found that the 128 votes cast for the relator for the office of “ superintendent of schools,” were intended to be cast for him for the office of county superintendent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of schools. Of this, upon the facts admitted and found, there can be no *150doubt. It is true, another person was voted for on the same ballots ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for an office described in the same manner, that is, for “ superintendent of schools.” And if the court was bound to shut its eyes to everything except the ballot, it would be void for uncertainty. But it is well settled that ballots, like other writings, are to be construed in the light of the surrounding facts, in view of which the elector uses the language upon his vote, Carpenter vs. Ely, 4 Wis., 429. And when it is made apparent that Winslow, the other person voted for upon these ballots for “superintendent of school,” was a resident of Racine county, and therefore ineligible to the office оf county superintendent in Dodge county, but was a candidate for the offiсe of state superintendent, the intention of the voter to designate him fоr the latter office becomes unmistakable, and this intention, being arrived at, removes all uncertainty, and leaves the intention to vote for the rеlator for county superin-dent of schools, for which oiSce he was a well known candidate, equally clear, and this is nothing more than an application of the doctrine, that where a description in a written instrument is equally applicable to two or more things, parol evidence is аdmissible to show which was intended, and it is seldom, when an uncertainty thus arises, that the surrоunding facts so completely remove it, and reveal the intention so clearly, as was done by the evidence in this case.

The judgment is affirmed, with costs.