12 Wis. 551 | Wis. | 1860
By the Court,
To the answer or return made to the alternative writ in this case, the relator has taken several objections by his demurrer. But without attempting to notice all these objections in detail, we will state that we consider them untenable. In the first place, it is insisted that the return is insufficient in substance, and shows no legal excuse or justification, for the respondent’s refusal to record the deed mentioned in the writ. The return sets up and relies upon the official canvass, made by the proper canvassing board, from which it appears that a majority of the votes cast upon the subject of detaching the territory of the town and city of Ripon Rom the county of Eond du Lac, and annexing the same to the county of Green Lake, was against such a division of the former county. The register of deeds, in discharging his duty of recording all conveyances of lands situate in Green Lake county, had an undoubted right to rely upon the correctness of the official canvass, or rather to assume that it was prima fade accurate, when determining the question whether it was proper for him to record the deed or
The act of 1859 provided that the election should be held and the votes canvassed in the same manner as the votes for state senator of Fond du Lac county were canvassed. Suppose the question had arisen before the 'canvassing board of the county, as to who was entitled to the certificate of election for the office of state senator of that county, what then would have been the duty of the canvassers ? Sec. 107, chap. 7, E. S., 1858, provides that whenever it shall satisfactorily appear that any person has received'a plurality of the legal votes cast at any election for any office, the canvassers .shall give to such person a certificate of election, notwithstanding the provisions of law may not have been fully complied with in noticing or conducting the election, or canvássing or returning the votes, so that the real will of the plurality may not be defeated by any informality. It appears to us that this proceeding to determine the question as to whether a county has been divided or not, is strictly analagous to a proceeding, in the nature of a quo warranto, to determine the right of a person to hold and exercise an office, and that substantially the same rules of law are applicable to it. Now it is the well settled doctrine-of this court, that in a contest between individuals as to the right to an office, .it will go back and rectify any omission or mistake of the canvassing boards, and give effect to the real will of the electors, as expressed through their ballots. Carpenter vs. Ely, 4 Wis., 420; Bashford vs. Barstow, id., 567, and cases there cited. We therefore do not think the votes in the towns and wards heretofore alluded to, should be rejected and thrown out for the reason that no separate poll-lists were kept of the names of the persons.who voted upon the question of division.
It follows from these views that the demurrer must be overruled.