State ex rel. Chase v. McKinney

Cole, J. We are of the opinion that the demurrer to the answer must be overruled. It appears from the pleading, that one Farlin Q. Ball, at the general election in November, 1868, was elected to the office of district attorney for Dane county for the term of two years from the first Monday in January, 1869. Ball duly qualified, and entered upon the discharge of the duties of the office, and continued to exercise the same until the 16th of July, 1869, when he resigned. The respondent was thereupon appointed to fill the vacancy caused by the resignation of Ball. For the purpose of disposing of the question arising upon the demurrer, we shall assume that the law is such that the respondent could only continue to exercise the duties of the office to which he was appointed until the vacancy was filled by an election.' This point was controverted on the argument by the counsel for the defendant ; but, without deciding the question whether the appointee holds, under such circumstances, for the unexpired term, we shall assume that he could not. And yet we are entirely satisfied that the answer shows that no legal and valid election has ever taken place to supply the vacancy. Jn the first place, it appears by the answer that the fact even of the resignation of Ball and the appointment of the respondent was not known or understood to any [420] considerable extent in Dane county, or by any considerable portion of the electors thereof, until after the election held in November; in other words, that the existence, even, of a vacancy in the office of district attorney was not, 'in fact, known generally to the electors of the county until after the election. Furthermore, it incontestably appears from the answer, that no notice whatever was given that a district attorney was to be chosen at that election, either by the posting of the notices of the election by the officers whose duty it was to post, them, or by the newspapers, or in any other manner; and the great body of the electors of the county voted for other officers, but cast no votes for district attorney, because they did not know that one was to be elected. As a consequence, in a county consisting of forty-one election districts, in which 7,129 votes were cast for other officers, there were cast for the relator 149 votes in five of the election districts; in thirty-six districts no votes being cast for district attorney. Now, under these circumstances, it seems to us impossible to say that there has been any valid election for district attorney such as the law contemplates. Certain it is, that the great mass of the electors of the county have exercised no choice as to who should fill the office of district attorney. No official notice, nor any other kind of notice, was given that a vacancy existed in that office, which they were required to supply at the election. ■ It is obvious, therefore, that there has been no expression of the will of the electors as to who should fill the vacancy. In the case of State ex rel. Peacock v. Orvis, 20 Wis. 235, it was decided that the failure on the part of the under-sheriff to give the statutory notice of the election of sheriff, as required by statute, would not render void the election. But in that case it appeared that notice in fact of the election was brought home to the great body of the electors. For it was alleged in the complaint, that the under-sheriff was requested by divers qualified electors [421] of the county to give official notice of the election of sheriff at the general election to be held in November, 1865 ; and, upon his neglecting to comply with the request, “ the relator thereupon caused it to be publicly announced and made known through the several towns and election districts in said county, that he would be a candidate for the office of sheriff of said county to fill the aforesaid vacancy.” Notice, then, in fact, of the election was given in that case, though not the one which the law prescribed. But where, as in this case, no notice whatever of the election was given, either by the 'proper officer, or by the public press, or in any other manner, and the great body of the electors cast their votes in utter ignorance of the fact that a district attorney was to be chosen at that election, to' hold that the very incon ■ siderable number of votes cast constituted a valid election for the office of district attorney, would be going further than any adjudicated case to which we have been referred has yet gone ; and further, we think, than the law or public policy will allow. State ex rel. Lutfring v. Goetze, 22 Wis. 363. By the Gourt. — The demurrer to the answer is overruled.