Attorney-General ex rel. Spooner v. Elderkin

— 303 — By the Court, Cole, J. This is an information in the nature of a quo warranto ; and the facts of the case are contained in the following stipulation: “ /State of Wisconsin, Supreme Court, Attorney-General ex rel, Alfred S. Spooner vs. Edward ElderTcinf “An issue of fact having been made in this cause, and sent, by order of this, court to the Walworth county Circuit Court, for trial, it is hereby stipulated and agreed by and between the relator and the respondent, that the same be returned to the Supreme. Court, and that the following are the facts in said cause, to wit: “1. It is hereby agreed and stipulated that the term of office of II. D. Meacham, Esq., as district attorney for the county of Walworth, state of Wisconsin, terminated and ended on the 31st day of December, A. D. 1852. “ 2. It is further agreed and stipulated that at the general elee.tion in November, A. D. 1852, upon previous due, proper and legal notice, Stephen S. Barlow, Esq., of said county, was duly and legally elected to the office of .district attorney for said county, as the successor of said U. D. Meacham, for two years from the first day of January, A. D. 1853, and that he was declared so elected, by the board of county canvassers, on the Tuesday next succeeding the said election, and for the term above named, at the court-house in Elkhorn, in said county of Walworth. “ 3. It is further stipulated and agreed, .that the said Stephen S. Barlow, Esq., never received from the clerk of the board of supervisors of said county, any official notice of his said election to said office, nor had said Barlow any official notice from any source or person whatever of such election. “A It is further agreed and stipulated, that on or about the 5th day of April, 1853, his Excellency, Leonard J. Earwell then governor of the state of Wisconsin, appointed the said Stephen S. Barlow, Esq., to the office of district attorney, for said county — 304 — of Walworth, and that on tbe 11th. day of April, A. D. 1853, said Barlow took the oath of office as such district attorney in due form of law, and filed his bond, &c., and entered upon the duties of the office of said district attorney. “ 5. It is further agreed and stipulated, that said Stephen S. Barlow, Esq., discharged the duties of said office of district attorney, in and for said county of Walworth, at the sjcring term, and also at the October term, of said Circuit Court for Wal-worth county, in the year A. D. 1853 : that he never resigned said office of district attorney, and that the said Barlow continued a resident of Walworth county, until the month of May, A. D. 1854, at which time the said Barlow did remove out of said county, and that the said Barlow acted as such district attorney at the time of, and after the general election, in the said county, in the year A. D. 1853. “ 6. It is agreed and stipulated further, that at the general election in November, A. D. 1853, notice thereof having been given by the sheriff of Walworth county, the relator in this cause was elected to the said office of district attorney, for said county of Walworth, by a majority of votes cast at said election, for that office in said county, and that he was declared elected to said office by the board of canvassers of said county of Walworth (to fill a vacancy), (the said.Stephen S. Barlow still residing in, and acting as district attorney for said county), on the 15th day of November, A. D. 1853 ; and that he took the oath of office in due form of law, before an officer duly authorized to administer such oath; and that he filed said oath and his bond as required by law, and entered upon the duties, of the office of district attorney, for said county, on the 3d day of December, A. D. 1853; and that he did not resign said office, neither was he removed therefrom, other than by the election of Harley E. Smith to the said office as hereinafter mentioned. “7. It is further agreed and stipulated that at the general election, held in November, in the year 1854, upon due notice given, Harley E. Smith, Esq., of said county, was duly elected to the office of district attorney for said county, for two years, from the first day of January, A. D. 1855, by a majority of. all — 305 — tbe votes cast in said county for said office, and that tbe said Harley F. Smith declined to accept tbe said office, declined to file bis official bond, and to take tbe oatb of office; and tbat said Smith absolutely refused to qualify and act as such district attorney for said county of Walworth. “ 8. It is further agreed and stipulated tbat on or about tbe 26th day of January, A. D. 1855, bis Excellency William A. .Barstow, then governor of tbe state of Wisconsin, duly appointed and commissioned Edward Elderkin, tbe respondent in this cause, district attorney of said county of Walwortb, in tbe place of Harley F. Smith, who bad previously refused to act as such district attorney, and who bad made tbe fact of bis refusal to take said office of district attorney known to tbe governor, before tbe appointment of tbe said Elderkin; tbe said Stephen S. Barlow having also removed from said county of Walworth, before tbe election of tbe said Smith, and tbe appointment of tbe said Elderkin; and it is further agreed tbat tbe said Elderkin exercised and discharged tbe duties of tbe said office at tbe May and October terms of said Walworth county Circuit Court for tbe year A. D. 1855, under and by virtue of tbe appointment as aforesaid. 11 Signed and dated 22d day of May, A. D. 1856. (Signed) “Alfred S. Spooler, Relator, “Edward ElderKIN, Respondent." It is apparent tbat tbe right of tbe relator to tbe office depends entirely upon tbe determination of tbe question, as to whether bis predecessor, Barlow, qualified and entered upon tbe duties of tbe office under tbe election of November, 1852, or by virtue of bis appointment by Governor Farwell. For if Barlow bad not forfeited bis right to tbe office, and if be could still qualify in April, under tbe election, and did so qualify; then obviously tbe appointment of Governor Farwell was supererogatory, and no vacancy existing at tbe general election, November, 1853, tbe relator’s election at tbat time was null and void. But if, on tbe contrary, Barlow’s neglecting or refusing to take bis official oatb, and give bis official bond before be did, — 306 — worked a forfeiture of tbe office and the election, then a vacancy existed in April, when he was appointed, and he could only continue to exercise and perform the duties of the office under the appointment, until his successor should be chosen and qualified (sec. 14, ch. 11, Rev. Stat.); and such successor would hold the office the constitutional' term of two years. Const. Wis. Art. 6, §4; Attorney-General vs. Brunst, 3 Wis. Rep. 787. Had, then, Barlow a right to qualify and enter upon the office (by virtue of the election), in April, or had he forfeited his right to the same ? To answer this inquiry it will be necessary to examine such provisions of the statute as have a bearing upon the subject. Section 138 of chapter 10 Revised Statutes reads as follows: “ Every county officer named in this 1 chapter (district attorneys are named in it) shall, before entering upon the duties of his office, and within twenty days after receiving official notice of his election or appointment, or within twenty days after the commencement of the term for-which he was elected or appointed, execute and deposit his official bond as prescribed by law; and every such officer shall also within the same time take and subscribe the oath of office prescribed by the constitution of this state, &c.” From the stipulation, it appears that Barlow received no official notice of his election, and hence the counsel for the respondent contends that under the first clause of the above provision, Barlow was entitled to qualify under the election when he did; or in other words, to -state -the - proposition broadly, that the proper construction to be given- this statute is, that any county officer who receives no -official notice of his election, can qualify according to its requisitions at any time during the term for which he was elected, or within twenty days from the commencement of such term of office. We are unable to concur in this construction of the statute, being clearly of the opinion that the ■“ official notice” spoken of, refers to a notice that may or should be given intermediate between the county canvass and the commencement of the term of office. . And when no such official- notice is received after such canvass, and before the commencement of the term of office,- the — 307 — person can qualify within twenty days after the commencement of the term for which he was elected. Section 54 of chapter 6 of the Revised-Statutes makes it the duty of the clerk of the county- board of supervisors, immediately after the .canvass, to make a certificate of the election for each person elected to any county office, and deliver the same to such person upon his making application therefor. But the clerk may neglect or refuse to make the certificate, or may withhold it from improper motives; or the person elected may not be able to apply for it and qualify before the term of office commences. Still his title to the office is unimpaired^ and the statute enables him to qualify within twenty days after the commencement of the term. It vitally concerns the people in this popular government, that the public offices be filled by the duly appointed or elected agents, who act under the responsibility of their oaths of office, and who, in many cases like the- present, give bonds for the due and faithful discharge of its duties. Still a person cannot be forced to accept an office óf this kind. ■ He may neglect- or refuse to accept it, and forfeit all its rights and privileges; and the statute contemplates that such cases will arise; and ample provision is made for filling the vacancies in the county offices thus existing. Rev. Stat. chap. 11, § 13. It also declares that a vacancy shall exist where the person elected refuses or neglects to take his oath of office, or to give or renew his official bond, or to deposit such oath -or bond within the time prescribed by law {Rev. Stat. ch. 11, § 2, sub. 6), clearly fortifying the construction which we have given to section 138, before quoted.- It follows, from the view which we have taken’ of this case, that the relator was'entitled to the office at the ftime respondent was appointed by Gov. Barstow, and that such appointment was null and void.' Judgment accordingly.