State ex rel. Lochschmidt v. Raisler

Dodge, J. The character of the action that relator has attempted to institute in this case is thrown in considerable doubt both by his complaint and by the contentions in his brief. Apart from statute the only method known to courts for the trial of title to a public office, other than pñma facie, [675] was at common law by writ of quo warranto, and is under our statutes by an action in tbe nature thereof prescribed and regulated by sec. 3466 et seq., Stats. (1898). McCrary, Elections (4th ed.) §§ 393, 425. In this form of action, as is well understood, the court tries the true merits of the controversy, namely, whether the incumbent has been legally elected, not merely the question whether he has by the various other tribunals having to- do with an election been decided to be so elected. The authorities are well-nigh universal that no other form of action is adapted to this end. High, Extr. Leg. Eem. (3d ed.) §§ 49, 619, 641; McCrary, Elections (4th ed.) §§ 386, 393, 397; State ex rel. Anderton v. Kempf, 69 Wis. 470; State ex rel. Mercer v. Sullivan, 83 Wis. 416, 53 N. W. 677; State ex rel. Jones v. Oaies, 86 Wis. 634, 34 N. W. 226; Deuster v. Zillmer, 119 Wis. 402, 410, 97 N. W. 31; Ward v. Sweeney, 106 Wis. 44, 82 N. W. 169; Moore v. Hoisington, 31 Ill. 243; Roberson v. Bayonne, 58 N. J. Law, 325, 33 Atl. 734; Updegraff v. Crans, 47 Pa. St. 103 ; People ex rel. Hodgkinson v. Stevens, 5 Hill, 616. The obvious main purpose of the present action is to try and settle the title of the rival claimants to the office in question, although there are suggestions in the prayer of an attempt to invoke some of the peculiar remedies characterizing an equitable suit. No statute of this state authorizes any proceeding in court for contesting an election or otherwise to try title to an elective office except by quo warranto. State ex rel. Rinder v. Goff, 129 Wis. 668, 684, 109 N. W. 628. Hence we must conclude that such is the action here attempted. Having so concluded, the action must, of course, find its limits and essential characteristics in ch. 149, Stats. (1898). The only authority for the action in that statute is found in sec. 3466, Stats. (1898), which, eliminating immaterial parts, authorizes it only “when any person shall usurp, intrude into, or unlawfully hold or exercise any public office.” [676] But the complaint makes it entirely apparent that the defendant here has not done any of these things, although, it alleges that he intends so to do under claim based on the certificate already issued to him. This is insufficient to satisfy the calls of the statute. Actual occupation and exercise of the office is an essential element by the statute and was at common law. Rex v. Whitwell, 5 T. R. 84; Osgood v. Jones 60 N. H. 282, 288; Sublett v. Redwell, 47 Miss. 266, 278; Roberson v. Bayonne, 58 N. J. Law, 325, 33 Atl. 734; High, Extr. Leg. Bern. (3d ed.) § 627. This is confirmed by a reference to sec. 3468, Stats. (1898), which prescribes the essential elements of a complaint which seeks to attack the validity of an election and. of any title to office predicated thereon, for in defining such situation it describes the defendant as one “in possession of the office in controversy under a certificate of election.” Eurther, it should be noted that under this same section are specifically required many allegations wholly wanting in this complaint, namely, the actual number of legal votes cast for each candidate,- respectively; also the names of the persons whom relator dlaims voted illegally at said election for the defendant which were canvassed and in what such illegality consisted; also the election district where such votes were cast. None of these things are set forth in the complaint, except perhaps that as to the Indian votes the ground of illegality and the election district are stated, hut such votes of themselves would not be sufficient to change the result. These statements of fact thus being imperatively required by tire statute to be included, a cqprplaint which fails to contain them is obnoxious to a general demurrer, even though the defendant be in occupation of the office. Carpenter v. McCord L. Co. 107 Wis. 611, 83 N. W. 764; State ex rel. Leonard v. Rosenthal, 123 Wis. 442, 102 N. W. 49. Eor the reasons stated we must hold that the complaint does [677] not state facts sufficient to constitute any cause of action, and tbe demurrer should have been sustained. By the Court. — Order from which appeal is taken reversed,- and cause remanded with directions to sustain the demurrer. ■Cassoday, C. J., took no part.