82 Wis. 151 | Wis. | 1892
The following opinion was filed January 12, 1892:
"We are of the opinion that a stay of proceedings on the judgment in the quo warranto action pending the appeal is not a matter of strict right, even if it be conceded that the statute authorizes it. Without deciding the point, we assume that the statute authorizes the court to prescribe the proper undertaking for a stay of proceedings on the judgment.
There are certain considerations which should guide and control the court in determining whether, in this case, the court should exercise such authority and stay the proceedings on the judgment beyond the collection of costs — the circuit court having granted a stay to that extent. In the first place, it should not be determined or intimated on this motion which of these parties is entitled to the office in controversy. That can be properly determined only upon the
As we understand the motion papers, Warden is now in possession of the office, and engaged in transacting the business and performing the duties appertaining thereto. It is not represented that Knight has assumed to act as county treasurer since Wa/rden took possession of the office. There can be no doubt, we think, that Warden is the county treasurer de facto for the time being, and that his acts as treasurer are valid, even though it should be finally determined that he is not entitled to the office. Doubtless, also, the unapproved bond which he has filed is a valid common-law bond, and will bind the sureties therein to make'good any loss resulting from any breach of official duty by their principal. It is now the time when town treasurers usually make their returns to the county treasurer. They must do so within the next two weeks. Sec. 1081, S. & R. Ann. Stats. Within thirty days thereafter the treasurer must issue his warrant to the sheriff for the collection of .delinquent personal taxes, and early in April he. must advertise delinquent real estáte for sale for nonpayment of the taxes thereon. It is of the highest public concern that the above-mentioned official acts should be performed by a person having authority to perform them. No person has such authority unless he be county treasurer, either defacto or de jure.
Were a stay of proceedings to be now granted it is doubtful, to say the least, whether it would have the effect to reinstate Knight in the office pending the appeal. Whether it would do so or not, it is quite probable that it would deprive Warden of his character of county treasurer defacto. Thus it might happen that the important duties above
By the Court.— The motion is denied, and the rule to show cause discharged, without costs to either party.
The following statement was prepared by Mr. Justice PinNet in connection with the opinion upon the merits:
This is an action of quo warranto, to oust the respondent from the office of county treasurer of Bayfield county, and for a judgment declaring and adjudging the relator entitled thereto. At the general election in 1890, the relator was elected county treasurer over the respondent, who then held the office under a previous election for a full term, then about to expire. The complaint alleges in substance, among other things, that on the 21th of January, 1891, and within twenty days after the commencement of the term for which he was elected, the relator qualified by executing and depositing in the office of the county clerk his official bond in double the amount of the taxes levied by the county board at their last annual meeting, to wit, in the sum of $81,000, with good and sufficient sureties, executed, witnessed, and acknowledged as required by law, and that he took and subscribed the proper official oath, and filed it, duly certified, with the said clerk; that at the time and prior to the filing of the bond no committee of at least two members, with the chairman of the county board, had been appointed to approve official bonds, and the board was not in session; that on the 23d of January he presented said bond to the chairman for his approval; that he took the bond, examined and returned it to the relator, and, without
The respondent demurred to the complaint, and the court overruled the demurrer; whereupon he answered, admitting relator’s eligibility and election, the execution of his official bond with sureties, in substance as alleged, and the deposit of the same by the relator on the 24th of January with the county clerk, together with his official oath; and alleging that the bond had never been approved by the county board, and that the board required the relator to file an additional bond, which he failed to do, for which reason the board, on the 21st of April, declared said office vacant. The answer did not deny that the bond filed by relator was sufficient.
At the trial it appeared that the county board consisted of four members; that when the bond was presented to the chairman, January 23d, he was on the cars on his way to Madison, and he said he would not approve it without the board was in session, and that no committee had been appointed to examine the bond. The record of the county board showed such to be the fact. The bond was deposited with' the county clerk the next morning. Respondent re
At the close of the testimony, the respondent requested the court to direct a verdict in his favor, which the court refused to do, but directed a verdict in favor of the relator upon which judgment of ouster and establishing the right of the relator was entered, and from which the respondent appealed.
For the appellant there were briefs by Lamoreux, Gleason, Shea ós Wright, and oral argument by W. F. Shea. They contended, inter alia, that Knight was bound by law to hold the office, discharge its duties, and shoulder its responsibilities, and was entitled to its emoluments, until Warden was qualified. He could not evade this responsibility even by resigning. R. S. sec. 962, subd. 5. The law in such case postpones the officer’s will to his duty. People ex rel. I. M. R. Co. v. Supervisors, 100 Ill. 332, 335-7; Badger v. U. S. ex rel. Bolles, 93 U. S. 599; Jones v. Jefferson, 66 Tex. 576; State ex rel. Epler v. Lewis, 10 Ohio St. 129; Mechem, Pub. Off. secs. 396-7, 399, 416. The courts cannot dispense with the approval of the bond, or interpolate exceptions in the statute requiring such approval. Even if the statute imposed on the officer an impossible duty, the courts cannot hold such duty performed. Marsh v. Clark Co. 42 Wis. 518. Nor can the courts control, correct, or interfere with the honest exercise of discretionary power vested in local officers or boards. Moll v. Benckler, 30 Wis. 585; State ex rel. Manitowoc v. County Clerk, 59 id. 15, 24; Wharton v. School Directors, 42 Pa. St. 358, 364; Parker v. Portland, 54 Mich. 308. The relator’s remedy is by mandamus to compel the board or its committee to act. The object of the writ in such case is not to govern official discretion, but to compel the exercise or correct the abuse thereof. This remedy commends itself to reason and to justice. It places the responsibility where it prop
For the respondent there was a brief by Tomkims & Merrill and J. J. Miles, and oral argument by W. M. Tomkins. They cited State ex rel. Ackerman v. Dahl, 65 Wis. 510; State ex rel. Willis v. Prince, 45 id. 610; S. & B. Ann. Stats. sec. 702, note.
The following opinion was filed April 12, 3L892:
The tenure of office of the respondent, as the incumbent of the office of county treasurer at the time when the relator was elected, was until the first Monday of Jan-
1. The relator has a right to qualify at any time within twenty days after the commencement of the term for which he was elected. Sec. 701, R. S.; State ex rel. Ames v. Southwick, 13 Wis. 365. It is contended that the relator had official notice of his election as early as the 10th of November, and that he was bound to qualify within twenty days thereafter, but this contention is predicated solely upon the testimony given by the county clerk, not in court, but before the county board, and written down on its record, which was offered in evidence at the trial; but the utter inadequacy of the proof is obvious. All there is of it is the naked statement that the relator “was notified by mail.” To what post office the official notification was sent, and whether it was sent to the proper post office of the relator, we are left wholly to conjecture, for the proof furnishes no information. It is not necessary, therefore, to consider whether the legislature, by the revision of 1878, changed, or intended to change or modify, the construction of the statute adopted in State ex rel. Ames v. Southwick, 13 Wis. 365, as suggested by appellant’s counsel at the argument.
“ The word ‘ qualified,’ when applied to any person elected or appointed to office, shall mean the performance by sxich person of those things which are required by law to be performed by him previous to his entering upon the duties of his office.” R. S. sec. 4971, subd. 15. The vital question is whether the ' relator qualified, within the meaning of the statute, so as to put an end to the respondent’s precarious tenure of the office, before bringing this action to oust him and establish his own right. It is in the main a question of statutory construction, and upon which cases decided elsewhere furnish no satisfactory or reliable guide. The duty of the officer elect is prescribed in the statute (sec. 701, R. S.): “ Every county officer named in this chapter shall,
Beyond all cavil or room for question, the approval of the chairman of the county board and a committee of not less than two additional members would suffice, even upon the strictest view, to complete the bond, so that it might be recorded and filed, and admit the officer elect to his office. These provisions devolve upon the officer elect and the county board mutual and reciprocal duties of a very important character, in order that the officer elect may enter upon his official duties as the successor of the then incumbent, and that proper effect may be given to the duly expressed popular will. The law requires of the county board that it shall take the statutory precaution that the transfer of public authority and trust may be made in a regular and orderly manner, and without risk or detriment to public interest. Instead of doing this, we find that in this case no steps whatever were taken in this direction,
We think it is plain that the relator performed in due season “ those things which were required by law to be performed by him previous to his entering upon the duties of his office,” and that he executed and deposited in due sear-son his official bond as required by law; that his rights, and those of the public interested in his succession to the trust to which he had been chosen, are not to be thwarted or defeated by reason of the indifference, negligence, or perversity of those whose duty it was to act promptly and approve the bond. He has certainly done all within his power. The true purpose and intent of the law, and public policy as well, require that the choice of the people at popular elections-shall not be defeated by those whose duty it is to render a prompt and ready performance of the duties imposed on them in the transfer of public trusts and duties. The law does not require impossibilities, and we think that at the end of the twenty days the relator’s bond, in judgment of law, was approved, and he had a right to enter upon the duties of the office to which he had been elected. He became then de jure the county treasurer, while the respondent remained, by reason of his usurpation under color of right, treasurer defacto.
We cannot agree to the contention of appellant’s counsel that the only remedy for the relator and for-the public was by mcmdamus to compel the county board to assemble and act upon the bond,— for committee they had none, — a remedy which he shows is of little or no value, for the reason that the duty required calls for the exercise of judgment and discretion, which cannot be controlled by the courts. Our conclusion is that there was no occasion for a proceeding by mandamus, a process that would be likely to last through the greater part of the relator’s entire term,
It is argued by counsel for appellant that under this view of the law public interests may be imperiled and suffer, in cases like the present, by officers elect becoming invested with official functions upon depositing insufficient bonds ; but the answer to this suggestion is that this may occur in a variety of cases where public officers, having important duties, wholly neglect or refuse to perform them, and the real responsibility for the loss or injury which may occur in such a case as this is justly chargeable to public officials whose inattention, negligence of duty, or perversity of conduct has exposed public rights and interests to detriment or loss. The case of State ex rel. Ackerman v. Dahl, 65 Wis. 510-521, is really decisive of the main question. It was there held that the wilful and unjust refusal of the officer required to approve the official bond of a person elected or appointed to an office to give it his approval cannot deprive such person of his office or create a vacancy therein. There is no difference in principle between that case and the present.
%. The County board arrived, it seems, at the same conclusion at its meeting February 7th, when it was moved and carried that the relator’s bond had been properly filed, and a committee was appointed to investigate the subject of its sufficiency, resulting in a resolution accepting the bond for $58,000, and calling upon the relator to give a supplemental or additional bond for $23,000, which he.failed to do within the period of twenty days named, and thereupon the county board declared the office of county treasurer vacant. It is now insisted that the relator forfeited or
These conclusions dispose of all the material points urged for a reversal. "We are of the opinion that the judgment of the circuit court is correct, and that it should be affirmed.
By the Gou/rt.— The judgment of the circuit court is affirmed.