Doberstein v. Dahl

Esci-iweiler, J. Considerable stress in argument is laid by appellant’s counsel upon the manner of and method used in obtaining possession of the county jail and keys by the defendant. While we are not inclined to commend the method of testing title to office by struggles for possession, yet the evidence in this case supports the finding of the trial court that the defendant, with a certificate of election to the office, came into peaceable possession of the sheriff’s office and of the keys, and we cannot disturb such finding or prejudice defendant’s rights by reason thereof. [495] We are satisfied that the trial court correctly ruled that the county clerk as an administrative officer was justified in his conclusions to refrain from issuing to plaintiff a certificate of election upon the result of the general election and also that the mandate of the statute required him to give the notice for- the special election. At the time of the giving of such notice on November 14th the fact was generally known, although the vote had not yet been officially canvassed or declared, that such proposed amendment had been defeated. The voters therefore had, practically at least, failed to elect a person who could lawfully succeed the plaintiff as sheriff on January 1, 1923, he, the plaintiff, being by the constitution still disqualified from so succeeding himself. The statute, so far as material here, under which the county clerk acted, reads as follows: “7.02 Special elections in particular cases. Special elections in addition to those authorized by section 7.01 [which provides for elections to fill certain vacancies] may be held in the following cases: “(1) When there shall have been neglect or failure to choose, (a), at a general election . . . any county officer, who by law should have been chosen at such election, . . . “(2) When the right of office of a person elected to- either of the offices mentioned in paragraph (1) shall cease before the commencement of the term of office for which he shall have been elected.” The county clerk is required by sec. 7.04, Státs., to order all special elections for county officers except as to- county clerk, and the officer ordering such election shall give notice in the manner provided in sec. 7.05, Stats., specifying the office to be filled, when the vacancy occurred, the name of the officer, the time when his term of office will expire, etc. Sub. (2), sec. 7.04. It is strongly urged that such action on the part of the county clerk, an administrative officer, is in effect a determination by him of questions relating to the holding of of [496] fice and the title of respective claimants to such offices and that such questions more properly belong to the judicial branch of the government. The legislature, however, has the power to provide for such situations, and there must necessarily rest in administrative officers charged with the duty of giving the electors timely notice of such an election the onus of determining whether a particular situation is within the call of the statute. That he must in many instances determine such questions at his peril in no wise alters or lessens his duty or responsibility. Reichert v. Milwaukee Co. 159 Wis. 25, 36, 150 N. W. 401; State ex rel. Kleist v. Donald, 164 Wis. 545, 556, 160 N. W. 1067. The holding of such special election would not have foreclosed the plaintiff or any one from successfully challenging the defendant’s assertion of right by reason of such special election if such election ought not to have been held. We think a fair interpretation of this section requires us to hold that there was such a failure to elect a sheriff and that such failure was intended to be supplied by a special election rather than by an appointment as though a vacancy had occurred, the plaintiff holding over after January 1, 1923. The record here, negatively at least, discloses that neither plaintiff nor any one else, between November 14th, when the notice was issued, and December 23d, when the special election was held, in any wise challenged in the courts the validity of .such notice or the legality of such proposed special election, as he or they might have done. State ex rel. Kleist v. Donald, 164 Wis. 545, 556, 160 N. W. 1057. As a result of such unchallenged special election the defendant obtained a formal .certificate of election as sheriff to succeed the plaintiff, whose ineligibility to succeed himself remained as before by constitutional inhibition. As between the two, defendant had on January 1, 1923, the better color of title as well as better title to the office of sheriff and was no mere intruder. By the Court. — Judgment affirmed.