State ex rel. Wood v. Baker

Ryan, C. J. I. Our views of the original jurisdiction of this court, and of the cases for the proper exercise of it, in Att'y Gen’l v. Eau Claire, 37 Wis., 400, were carefully considered and deliberately expressed ; and we adhere to them to their full extent. It was there said : “ To warrant the assertion of original jurisdiction here, the interest of the state should be primary and proximate, not indirect or remote ; peculiar, perhaps, to some subdivision of the state, but affecting the state at large in some of its prerogatives; raising ‘ a contingency requiring the interposition of this court to preserve the prerogatives and franchises of the state, in its sovereign character; ’ this court judging of the contingency in each case for itself. For all else, though raising questions publici juris, ordinary remedies and ordinary jurisdictions are adequate. And only when, for some peculiar cause, these are inadequate, will the original jurisdiction of this court be exercised for the protection of merely private or merely local rights.” “ Proceedings to restrain municipal undertakings or municipal — 78 — taxation, in ordinary cases, belong appropriately to the original jurisdiction of the circuit, and not of this court. .These are questions publici juris, as are title to local public office, performance of local official dutj’, use of local highways, maintenance of local public buildings, abuse of local power or franchise, and kindred local matters. But these are not generally questions directly involving the sovereign prerogative or the interest of the state at large, so as to call for the prerogative jurisdiction of this court. As a rule, no extraordinary jurisdiction is necessary or proper for them ; the ordinary j urisdiction of the circuit court being ample. Practically it would be impossible to take jurisdiction of them all here; and we intend to assume jurisdiction of none of them, which are not taken out of the rule by some exceptional cause. When they .are governed by some peculiarity which brings them within the spirit and object of the original jurisdiction of this court, we will entertain them ; otherwise, they will be left to the circuit courts.” These cases, involving title to county offices, would undoubtedly be within the rule forbidding the exercise of original jurisdiction of them here, in ordinary circumstances. And the question arises, whether there is any peculiarity affecting them which brings them within the exception. For it is obvious that the rule stated in Att'y Gen'l v. Eau Claire reserves a discretion to the court to exercise original jurisdiction of such cases, when peculiar conditions bring them within the spirit and object of the jurisdiction, or render the jurisdiction of the circuit court inadequate. Whether the conduct of the county canvassers, presently considered, raises a “ contingency requiring the interposition of 1 this court,” need not be determined. It was upon another ground that we gave leave to bring the cases here, and that we now sustain the exercise of original jurisdiction of them. When the leave was given, it appeared that the election and canvass involved in these cases were the same that were in — 79 — question at the last term in State ex rel. McDill v. Board of State Canvassers, 36 Wis., 498, and that tbe distinguished gentleman who was the judge of the circuit court in which these cases must be brought, if not brought here, was directly interested in the questions involved in them ; his title to a high office depending more or less upon them.- The relators not unreasonably objected to -bring their cases before him ; and our high respect for him forced us to believe that he would object no less. He was, perhaps, disqualified in law, .he was surely disqualified in propriety, from sitting judicially in these cases; and we felt warranted in believing that he would refuse to act in them. The terms of office involved were brief and fast passing away. We thought then, and hold now, that we could not with judicial propriety subject the relators, or the county whose officers de jure they claimed to be, to the partial denial of justice which would arise from the proper refusal of the learned judge of the circuit court to sit in these cases. For this peculiar cause, the jurisdiction of the circuit court was plainly inadequate. And indeed, such an obstruction, so caused, of the justice which is a sovereign attribute; such a defeat, so caused, of timely effect of a constitutional election; such an interruption of an ordained and radical process by which the sovereignty acts, appears to us to concern the sovereign prerogative, to raise, in Mr. Justice Smith’s words, a contingency requiring the interposition of this court to preserve the prerogative and franchises of the state. For these reasons, we have no doubt of our duty, within the rule of Att'y Gen’l v. Eau Claire, to exercise original jurisdiction of these cases. II. But it is obvious from what has been said, and still more from the discussions of the original jurisdiction of this court in Att’y Gen’l v. Blossom, 1 Wis., 317, Att’y Gen’l v. R. R. Companies, 35 id., 425, and Att’y Gen’l v. Eau Claire, supra, that it is in the public right only, in the interest of the state at large in its sovereign character, that we ought to exercise jurisdiction — 80 — in such cases ; and that the proper proceeding is therefore by information of the attorney general, as the law officer of the state. Such was the proceeding in Att'y Gen'l v. Messmore, 14 Wis., 115. A question arose in that case on the form of the summons and the frame of the information, which the court held should in such cases conform to the code. As matter of practice, that might perhaps be convenient and proper enough. But the opinion in that case incautiously, and we think unnecessarily, proceeds to hold that the provision of the code that remedies by information in the nature of quo warranto might be obtained by civil action, and should be as thereby prescribed, had the effect to make all proceedings in the nature of quo war-ranto civil actions, and to abolish the proceeding by information, as it existed at the time of the adoption of the state constitution. We cannot think that so radical a position was properly involved in the decision of that case; and, with profound deference to the opinion of the very learned and able judge who delivered it, we are compelled to dissent from his position. Indeed, we think it overruled by his later and more advised opinion in State v. W. W. Railway Co., infra. The jurisdiction conferred on this court by the constitution is of informations in the nature of quo warranto, as substituted in modern times for the use of the ancient writ itself, and as used when the constitution was framed. State v. W. W R'y Co., 34 Wis., 197. This was a prerogative proceeding, quasi criminal and quasi civil in its character, according to its use, but always classed with criminal informations. Bacon’s Abr., “Information;” Cole’s Crim. Inf., 110-113. The imposition of a fine, though nominal, appears to stamp upon it the essential character of a criminal proceeding. The mode of proceeding under this jurisdiction might be regulated by statute, but the jurisdiction itself could not be defeated or abridged. This is expressly recognized in Att'y Gen'l v. Messmore, as it has always been held by this court. — 81 — But tbe opinion in that case overlooked the consequence of reducing all remedies in tbe nature of quo warranto to mere civil actions, which would take away from this court criminal jurisdiction of such cases, or, more accurately stated, jurisdiction of criminal informations in such cases. It was undoubtedly competent for the legislature, to give a quasi civil proceeding in such cases, but not to abolish the quasi criminal jurisdiction vested in the court by the constitution. This appears to us to be matter of substance, not of form. Sec. 6, ch. 160, R. S., relates to proceedings in the nature of quo warranto for usurpation of office; and authorizes the attorney general to bring an action in tbe name of the state “ upon his own information or upon the complaint of any private person.” Interpreted by the constitution and translated into legal phraseology, we take this to mean that, in such cases, the attorney general may file an information in the nature of quo luarranto, ex officio or upon'the relation of a private person. The word “complaint” cannot mean a pleading so called in the code, Hit seems to be used in a general sense, as a substitute for relation ; and the attorney general certainly proceeds ex officio when he acts on his own information only. So far, therefore, we see no material change of the law. The section, however, goes bn to provide that such an action may be brought “in the name of the state, by a private person, on his own complaint, when the attorney general refuses to act, or ■when the office usurped pertains to a county, town, city or district.” Before such a statute, the courts of the state might perhaps, in proper cases, have authorized proceedings in the name of the attorney general, if that officer wrongfully refused to act, and it was necessary to proceed in his name. Att'y Gen’l v. Barstow, 4 Wis., 567. Be that as it may, this branch of the section gives a new proceeding by private parties, in the name of the state, without use of the attorney general’s name or office, in cases of local office, and ■ in all cases in which that officer may refuse to act. This proceeding is plainly in the — 82 — nature of a civil action, although in the name of the state. 3 Black. Com., 268. And so the statute plainly distinguishes between a criminal information by the attorney general and the quasi civil remedy which it gives to a private pei'son. The distinction seems to be founded on the previous uses of the proceeding by information, sometimes of a criminal and sometimes of a civil nature. We think the distinction a proper one, necessary to reconcile the statute with the constitution. And the civil remedy given in cases of local office is in striking harmony with all that is said on the subject in Att'y Gen'l v. Eau Claire, although the statute was not then within Our attention. In State ex rel. Peacock v. Orvis, 20 Wis., 235, it was held that this court would exercise original jurisdiction'of a quasi civil action under this section, in the name of the state, on the complaint of a private person, for a local office. But it is apparent that this is one of numerous cases of original jurisdiction which must be considered overruled by Att'y Gen'l v. Eau Claire. It seems however to have misled the relators in the cases before the court. When we granted leave to proceed in these cases, and indeed during the'argument of the motions for judgment, we were all under the impression that they were informations in the name of the attorney general. It was only when we examined the records, after the hearing, that we discovered that in neither of them are the summons and pleading signed by'the attorney general, or the pleading in the form of an information. And though we held that we ought to exercise original jurisdiction over the subject matter, we were embarrassed by the form of the proceedings. We therefore suggested the difficulty to counsel on both sides. The relator in each case thereupon moved for leave to change the form of his pleading to that of an information, and for leave to the attorney general to sign the summons and in — 83 — formation; filing the written consent of the attorney general to do so. The statutory discretion of amendment is very broad. Sec. 87, cb. 125, R. S. It authorizes amendments, before or after judgment, in furtherance of justice, of all mistakes, when the amendment does not substantially change the issue. It seems very certain that the amendment which the relators have asked to make, is in furtherance of justice, to correct a mistake not affecting the issue. The parties, the subject matter, the object of the proceeding, will remain unchanged. It is strictly one of form, not of substance. The difficulty to be cured by the amendment might perhaps be considered' waived by the defendants. Attorney General v. Messmore, supra. It is not jurisdictional ; the jurisdiction resting on the facts, though the facts are defectively presented in form. The court has jurisdiction of all proceedings in the nature of quo warranto, although it is the duty of the court to restrict the exercise of the jurisdiction, in its discretion, to cases affecting the state or its prerogatives, and therefore to require the attorney general to appear. It is only a change of attorneys and of the technical form of averment in the pleading, which the amendment seeks. We can therefore see no application of such cases as Whitney v. Brunette, 15 Wis., 61, or Fairchild v. Dean, id., 206. And we cannot think that we would be justified in driving these parties to proceed de novo, by refusing so formal an amendment. Orders will therefore be entered allowing the amendments to be made. III. The title of the relators and the defendants in these cases to the offices which they respectively claim, rests on the validity or invalidity of the votes cast, at the election in question, in the two wards of Grand Rapids and the three wards of Oentralia; the only objections to the validity of these resting on noncompliance with the registry law, ch. 445 of 1864, as amended. In the first ward of Grand Rapids, the inspectors of election — 84 — did not meet or make any list of voters, as a board of registry; but used at tbe election, as a register of tbe voters, a single list of names of voters, without their residences, prepared by one of themselves and the county clerk, which had not been certified, filed or posted as required by law. In the second ward of Grand Rapids, the inspectors met, as a board of registry, three weeks before the election, and made a duplicate list of the names of voters without their residences, not certified, filed or posted as required by law ; did not meet again ;..but used the lists so made, at the election, as a register of the voters. In none of the wards of Centralia was there any meeting of the inspectors, as boards of registry. But, a few days before the election, some of the inspectors from each ward, the mayor and clerk, had a meeting and made lists of the names of voters for each ward, without their residences, not arranged alphabetically, certified, filed or posted, as required by law, but used by the inspectors, at the election, as registers of the voters. Persons whose names were on these five lists respectively were permitted' by the inspectors to vote, and voted, in their respective wards, at the election, without oath or proof required from nonregistered voters, precisely as if the lists had been regular and valid registers of tbe voters, duly made, certified, filed and posted as required by law. There is no suggestion, however, that any persons, not otherwise legal voters in their respective wards, voted in them at the election. It is of course quite manifest that tbe inspectors of election failed in their duties, as boards of registry, and that tbe lists which they used at the election, iu all these wards, as registers of voters, were defective in substance and form, and were not made by them under color of compliance with the registry law. And the question is, whether such official nonfeasance and malfeasance of the inspectors of election can operate to disfranchise legal voters without notice and without fault. — 85 — ¥e say, without notice and without fault: for none appears affirmatively in these cases. And we cannot think that in such circumstances1 voters are chargeable with constructive notice of the failure of duty by the inspectors, or of the irregular or defective character of the registers de facto used by the inspectors at the election; or in default for not qualifying themselves as nonregistered voters, when they find themselves defacto registered on actual registers, used as official, regular and valid, by the inspectors, at the election. It is true that the registry law provides for great publicity of the process of registry and of the registers themselves, throughout the process; and fully authorizes voters to examine and criticise the registers and propose corrections of them, during the process of registry. So much so, that it is said in State v. Hilmantel, 21 Wis., 566, that every voter is made or may become an agent in the execution of the law ; and added, that in case of a voter whose name has been omitted, the burthen of answering the requirements of the law by furnishing affidavit and proof is thrown upon the voter himself, who is presumed to know the law and to goto the polls prepared to' comply with its conditions. And in State v. Stumpf 23 Wis., 630, the same rule is applied to elections where there is no register of voters at the election. But all this implies notice to voters that their names are not on the register, or that there is no register de ficto, at the election ; so that they have an opportunity, if they will, to remove the difficulty, each voter for himself, by complying with the statutory conditions. In such case, if a voter be disfranchised, he is by his own omission a voluntary party to his disfranchisement. B ut that cannot be said where the inspectors have a register de facto, which they use as official and valid, on which the voter’s name is found, and of whose irregularities and defects he has no notice. • In the two cases in this court just cited, the registry law was assumed without discussion to be constitutional. We have no disposition to question the construction given to the statute in — 86 — either of these cases, or its constitutional validity. But it is our duty to give it such a construction, if we can, as will make its provisions fully accord with the constitutional right of suffrage. The constitution vests every person having certain qualifications at the time of any election with the right of suffrage at such election. Some pf these qualifications rest on time which may ripen, or facts which may accrue, on the very day of election. So that one may well become vested with the right of franchise pending the election, who was not so vested before, or perhaps entitled to be registered at the time of registry. So one entitled to the franchise may be sick, or absent or imprisoned, or otherwise disabled, at the time of registry. But the constitution vests and warrants the right at the time of election. And every one having the constitutional qualifications then, may go to the polls, vested with the franchise, of which no statutory condition precedent can deprive him. Because the constitution makes him, by force of his present qualifications, “ a qualified voter at such election.” Art. Ill, sec. 1. Statutes cannot impair the right, though they may regulate its exercise. Every statute regulating it must be consistent with the constitutionally qualified voter’s right of suffrage when he claims .his right'at an election. Then statutes may require proof of the right, consistent with the right itself. And such we understand to be the theory of the registry law,- “to guard against the abuse of the elective franchise, and to preserve the purity of elections not to abridge or impair the right, but to require reasonable proof of the right. It was undoubtedly competent for the legislature to provide for a previous registry of voters, as one mode of proof of the right; so that it should not be a condition precedent to the right itself at the election, but, failing the proof of registry, left other proof open to the voter at the election, consistent with his present right. So the .legislature could provide for challenges of voters at the election, and for the oath or proof necessary to them to assert their — 87 — right against challenge. And this we take to be the exact effect of the registry law as already construed by this court. If a voter’s name be not on the register at an election, he is in effect challenged by the statute, and required to furnish prescribed proof of his right. If there be no register at an election, the statutory challenge goes to all the voters ; they must furnish the requisite proofs of right. These requirements are not unreasonable, and are consistent with the present right to vote, as secured by the constitution. The statute imposes no condition precedent to the right; it only requires proof that the right exists. The voter may assert his right, if he will, by proof that he has it; may vote, if he will, by reasonable compliance with the law. His right is unimpaired ; and if he be disfranchised, it is not by force of the statute, but by his own voluntary refusal of proof that he is enfranchised by the constitution. B ut if he were such an agent in the execution of the registry law as to be responsible in his right of suffrage for its nonfeasance or malfeasance; if he were bound to see to the putting of his name and residence on the register, or charged against his right with irregularities or defects of the register, so as to impair his right of suffrage at the election, it might be impossible to sustain the registry law under the constitution. But we cannot think that such is a necessary or even an admissible construction of the statute. And if failure or error in duty of the inspectors, of which voters have no notice in fact, could operate directly or indirectly to disfanchise voters at the election, we should encounter the same difficulty in sustaining the statute under the constitution. Nonfeasanbe or malfeasance of public officers could have no effect to impair a personal, vested, constitutional right. We see no such purpose in the registry law. Surely it would be a strange attempt to, protect the elective franchise and preserve the purity of elections, to put it in the power of inspectors of election, by careless accident or corrupt — 88 — ■design, to disfranchise constitutional voters. That, we take it, would be the actual effect of avoiding elections where the inspectors use defective or irregular registers at the election, as official and valid; so entrapping voters into dispensing with proof of their right, required and authorized only when their names are not registered at the election. We cannot think that such is a necessary or admissible construction of the statute. Undoubtedly the statute authorizes a large supervision of the process of registry by voters, and voters may so supervise the process as to be fully advised of ail irregularities and defects. But all such supervision is voluntary. The statute does not impose it as a duty, or as a burthen on the right of suffrage, and could not. The statute must be so construed as to reconcile all its provisions to the unimpaired, unincumbered right of suffrage at the election. And we think that such is its obvious construction. It was said upon the argument that the voters whose names were on the registers in the several wards -in question were bound to inspect the registers and to discover their apparent defects. We cannot think so. We need not pass upon the questions whether voters, at an election, have a right to inspect the registers used, or whether notice of defects of form in the registers would impair the right to vote without proof. Because we hold that voters are not bound to examine the registers, if they can, as a condition precedent to voting without proof; and that voters whose names are on a register cle facto, used by the inspectors at the election as official and valid, need not inquire further. They may accept the registers de facto, as they accept the inspectors cle facto. And they are no more bound to inquire into the qualifications de jure of the registers than into the qualifications de jure of the inspectors. It is enough for voters to find at the election acting inspectors using actual registers virtuie officii. They need look no further to see if their votes be challenged by statute. The statute can — 89 — not challenge them without notice. Their constitutional right cannot be baffled by latent official failure or defect. And the registry law sets no such trap, authorizes none such, for the constitutional right which it was passed to protect. In these five wards, there were registers cle. facto of the voters, used by the inspectors at the election, as official and valid under the law. The voters whose names were on them do not appear to have had any notice of irregularities or defects in them. They appear to have come to the polls to vote, and to have voted, in good faith, without any sort of warning that proof.of their right to vote was required by law. The facts are wholly unlike those in the cases of Hilmanid and Stumpf. It would be a fraud on the constitution to hold them disfranchised without notice or fault. They went to the election clothed with a constitutional right of which no statute could strip them, without some voluntary failure on their own part to furnish statutory proof of right. And it would be monstrous in us to give such an effect to the registry law, against its own spirit and in violation of the letter and spirit of the constitution. The votes cast in these wards should therefore be counted in the election. And the relators therefore appear to have been duly elected to the offices which they respectively claim. IY. There is nothing to distinguish the case of Kromer from ordinary cases of the kind. Judgment will therefore go in his case in the usual form against him and in favor of the relator. But the case of Baker is very distinguishable from ordinary cases of contest for office. At the time of the election and canvass, he was county clerk; one of the officials who made the registry of votes in the first ward of Grand Rapids, which he now asks to operate so as to disfranchise at the election all the voters in that ward. The county canvass was made by him and the two officials whom he took to his assistance to form the board of county canvassers. Saving the defendant’s per — 90 — sonal knowledge of the register in the first ward of Grand Rapids, it does not appear that the board of county canvassers had any notice of the irregularities or defects in the register of voters in these five wards, now urged for the defendant. Certain it is that they did not, in the canvass, reject the votes in any of them for any irregularities or defects of the registers. The defense which the defendant now sets up for his usurpation of office, appears to have been an after thought, which cannot mitigate his breach of duty then. The board of county canvassers did reject the returns from the town of Lincoln and the first ward of Grand Rapids, for alleged illegality and defectiveness, not in the election, but in the returns themselves, not now relied on by the defendant. The rejection of these returns, wholly unauthorized, gave excuse to the defendant and his associates in the board of canvassers to declare the defendant himself elected county clerk. This was a most indecent and flagrant violation of duty; too palpable for blunder, too corrupt for any mercy of construction. If the returns from the town and ward were so informal and incomplete — in the language of the board of canvassers, so illegal and defective, — that the board could not canvass them, it was the duty of the defendant and his associates to despatch a messenger for corrected returns. Tay. Stats., ch. 7, § 89; State v. Pierpont, 29 Wis., 608; State v. Board of State Canvassers, supra. A county clerk cannot be tolerated in so tampering with his statutory duty; in so baffling the constitutionally expressed will of the voters of his county, to keep himself in office to which another is elected, by violation of his official oath and duty. Speaking of this very canvass, it was said in State v. Board of State Canvassers, supra: “ There is nothing in the statement of the board of county canvassers showing or tending to show, neither was it claimed on the argument of the demurrer, that any effort was made to procure corrected returns from the rejected town and ward. On the contrary, the silence of their statement on that subject, the-suppression of the nature of the alleged defects — 91 — in such returns, for which they were rejected, and the fact that it does not appear that the board availed itself of the power given by law to adjourn for the purpose of procuring corrected returns, leave upon our minds a most painful impression that the county canvassers utterly neglected their duty in this respect, and illegally and wantonly disfranchised all the electors who voted at such election in the rejected town and ward. If they did so, they committed a most serious offense; an offense which strikes at the very foundations of our system of government, and which cannot be too severely censured. Hence it was that we felt justified in saying, during the argument of the demurrer, that he who, by fraud or by willful disregard of his sworn duty, defeats the will of the people as expressed by their votes, commits a political crime next to treason and near akin to it; and that this court will never fail, on any proper occasion, to characterize such an offense in fitting terms.” The shameful truth, suggested in that case, is apparent in this. Then we could only censure, now we can punish, Sec. 15 of ch. 160, R. S., under which this proceeding is taken, continues the ancient and salutary power of imposing a fine on the usurping officer,' in such cases, to the extent of $2,000. Such a statute, in such a case as this, should not be a dead lettér If any defendant in any case of quo warranto can earn such a fine, this defendant has earned it in this. It is our duty, now about to be- fulfilled, to oust him' from an office which he has usurped for one-third of the official term, by willful malfeasance in office, corrupt in fact as in law. And we should feel this court to be, in some sort, his particeps criminis, if, in doing so, we should refuse to exercise the power to punish him with which the law intrusts us. Our only doubt on this point has been the proper amount of the fine to be imposed. This is, so far as we are advised, the first instance of a fine imposed under this statute. And we have been led to think that a fine, moderate in amount; will be sufficient for the punishment of this defendant and for example in such cases. If — 92 — the example should prove insufficient, the precedent will not stand in the way of heavier fines in future cases of the kind. The same judgment will therefore go in the case of Balcer as in the case of Kromer, with the addition of a fine against the former of $200. By the Court. — When the amendments now authorized shall have been made to the satisfaction of the court, let judgments be entered in these cases according to this opinion.