State v. Trumpf

The following opinion was filed May 27, 1880: LyoN, J. Only two cases have been adjudicated by this court which have any direct bearing upon the questions to be determined on this appeal. These are State ex rel. Off v. Smith, 14 Wis., 497, and State ex rel. Schuet v. Murray, 28 Wis., 96. In the first of these cases it was held to be a fundamental principle of our government that a person not an elector of the state is ineligible to hold a public office therein, although our constitution and "statutes do not expressly so ordain.' In the latter case it was held that, in the absence of any constitutional or statutory provision on the subject, such ineligibility goes only to the holding of the office, and hence that, if an alien who is not an elector receives a plurality of votes for an office, he may-lawfully hold and exercise the same, if, by naLiralizatio’n or declaration, his disability is removed before the commencement of the term of office to which he has been elected. It is obvious that these cases are not in conflict. In the former the disability of the defendant Smith, who had received a plurality of votes for the office of sheriff, had not been removed when the action was brought, which was after the term of office had commenced. In the latter case the disability was removed before the commencement of the term, [109] and the point decided was not involved in the former case, and is not mentioned in the opinion by the late chief justice. Instead of conflicting, the two cases are in perfect accord; the latter adopting to its full extent the rule of the former. The court adheres to both decisions. It is claimed that in this case the rule of the Schuet Case has been changed by section 3, ch. 141, Laws of 1875, p. 249, quoted in the statement of the case. We do not think so. That section merely specifies the qualifications of voters for city and ward officers, and provides that such voters shall be entitled to hold any office created by the act. It is not perceived that these provisions affect the rule of the Schuet Case. Had the section provided that such voters should be entitled to he elected to any charter office, there might be some ground for the claim that the principle of that case is not applicable here. The main question in the case is, whether the disqualification of the plaintiff Geilfuss to hold the office of city treasurer was removed in time to entitle him to hold it. That is to say (adopting the phraseology of the Schuet Case), was he admitted to citizenship before the term of office commenced? The election was held April 6th', and the votes were canvassed by the common council and the result ascertained April 12th, which was within the time limited therefor by the city charter. Geilfuss was duly notified of his election April 13th. He was admitted to citizenship, and thereby became a voter of the city, April 21st, and afterwards, on the same day; duly filed his official oath and bond; and on the next day, April 22d, he demanded the office of the defendant, who refused to surrender the same to him. Section 3 of chapter II. of the city charter (Laws of 1874, ch. 184, p. 314), provides that the persons elected to certain city offices (the office of city treasurer being one of them) “ shall enter upon the duties of their respective offices on the third Tuesday of April in the year of their election,, and shall [110] hold their respective offices for the term of two years, and until their successors shall be elected and qualified.” If the charter contained no other provision on the subject, it would seem that the above provision fixes the commencement of the term of office of the treasurer and other officers named, absolutely on the third Tuesday in April, which, in April last, was the 20 th day. In that case the removal of the disability of Geilfuss on the 21st day of that month would have been too late. But section 12 of the same sub-chapter of the charter in effect provides that a person elected to any such office shall have ten days after he is notified of his election, in which to qualify; and also provides that the office shall be deemed vacant in case the person elected thereto fails to qualify within that time. The clear intent and meaning of the provision is, that there is no vacancy in the office until the expiration of the ten days after notice, unless, perhaps, as was the case in State ex rel. Finch v. Washburn, 17 Wis., 658, the person elected should before that time positively refuse to qualify for or accept the office. These two sections are in pari materia, and must therefore he construed together. Thus construed, we are of the opinion that the term of office of the city treasurer does not necessarily commence on the third Tuesday in April, hut that it may commence on that day, or on any day thereafter within ten days after the notice of election is given to the treasurer elect, pursuant to the charter. There is no vacancy until the ten days have elapsed, and we think it cannot be successfully maintained that the new term has commenced until there would be a vacancy in case the officer elect should fail to qualify. The term of the incumbent continues, and he holds the office as of that term, until the time given by the charter to his successor to qualify has expired. If his successor does not qualify within that time, or, perhaps, if before the expiration of that time he absolutely refuses to accept the office, as the same must be filled by some one, the charter designates the [111] incumbent as the person who shall fill it; but he then holds as of the new term, and, only until some one can be elected to serve the balance of such term. So, in the present case, notwithstanding Geilfuss (if under no disability) might have qualified and entered upon the duties of the office on the 20 th of April, and had he done so his term of office would then have commenced, still we are all of the opinion that, inasmuch as the law gave him until the 23d of that month, inclusive, in which to qualify, it was competent for him to do so on the 21st, and that his official term did not commence until he so qualified. It follows from these views that, under the averments of the complaint, Geilfuss was a voter and eligible to hold the office of city treasurer when his term of office commenced. Hence the case is ruled by the judgment in State ex rel. Schuet v. Murray. This case was placed upon the present calendar and heard at this term at the request of both parties. Although our decision is adverse to the defendant, it is but justice to him to say that his consent to have the cause decided many months before it could have been heard in the regular course of practice, is evidence that he has made this contest in good faith, and for the sole purpose of obtaining an authoritative determination of the right of Geilfuss to the office before surrendering to the latter so important a public trust. By the Court. — The order of the circuit court sustaining the demurrer to the complaint is reversed, and the cause will be remanded for further proceedings according to law.