State ex rel. Duesing v. Lechner

Doerfler, J. Sec. 60.20 of the Statutes, among other things, provides for the filing of an official oath within ten days after the election or appointment of a candidate or his notification thereof, if required, and also provides as follows-. “The neglect to file such oath, or an official bond when [407] required, within the time prescribed therefor shall be deemed a refusal to serve in such office.” Sec. 17.03, Stats., among other things provides: “Any public office, including offices of cities, villages and school districts, however organized, shall become vacant upon the happening of either of the following events: . . . “(7) The neglect or refusal of any person elected or appointed ... to any office to take and file his official oath or to execute or renew his official bond, if required, or to file the same or either thereof in the manner and within the time prescribed by law.” Under the provisions of sub. (4) (e), sec. 19.01, Stats., the oaths of all town officers’elected or appointed, except the town clerk, shall be filed in the office of the town clerk; and sub. (5) of sec. 19.01 provides: “Every public officer required to file an official oath or an official bond shall file the same before entering upon the duties of his office; and when both are required, both shall be filed at the same time.” Under the general demurrer herein interposed, all the material allegations of the complaint must be deemed as true. Defendant’s counsel even goes further, and admits the actual truth of the allegations contained in the complaint. He takes the position that under the statutes above referred to a vacancy occurred in the office when the defendant failed to file his official oath within ten days after the election, and that the supervisors of the town thereafter were duly authorized to fill such vacancy by appointment; that in making the appointment when they did they acted fully within their rights, and performed a duty which was imposed upon them by law; that the complaint contains no allegation by which the relator asserted his title to the office prior to the making of the appointment, or that he offered to qualify by taking and filing his official oath, and that therefore it must be assumed that the supervisors performed their duty as required by statute when on the 16th day of April they appointed the defendant to the office in question. The present action is one of quo warranto, and lies only against one who is in the possession of an office, and not against one who merely lays claim to the office, or who has [408] never been admitted thereto. "Quo warranto will not lie before the beginning of the term of office, but the taking of the oath of office within the time prescribed by law is a sufficient acceptance and user of the office to sustain the proceedings though the defendant has discharged no actual duties of the office.” 22 Ruling Case Law, 664. During the ten-day period in which under the statute the defendant should qualify by filing his oath, there was no incumbent of the office; therefore quo warranto proceedings could not be prosecuted. During this ten-day period, while this certificate was outstanding and in force, the defendant was the person who, under the presumptiSn created by law, was entitled to the office. Under these circumstances, the filing of an oath by the relator within this period would have been a mere idle ceremony. State ex rel. Ackerman v. Dahl, 65 Wis. 510, 27 N. W. 343; People ex rel. Finnegan v. Mayworm, 5 Mich. 146; People ex rel. Benoit v. Miller, 16 Mich. 56; Little v. State, 75 Tex. 616, 619, 12 S. W. 965. When, however, the ten-day period had expired, the defendant had forfeited all rights to the office under the election, and from that time on nothing whatever stood in relator’s way to prevent him from qualifying by filing his oath and from assuming his official duties. In other words, the time during which the filing of an official oath by relator would be deemed an idle ceremony had passed. The complaint contains no allegation to the effect that such official oath was ever filed or attempted to be filed, or that any one prevented the relator from taking the necessary steps for qualification for the office, or that the defendant or the supervisors of the town, or any other person or persons, by fraud or illegal means, interfered with and obstructed him in taking the necessary proceedings to qualify; nor is there any allegation pleaded in the complaint in the nature of an excuse for plaintiff’s failure to qualify or to attempt to qualify. While the authorities above cited hold that the ten-day period provided for by statute acts as a limitation upon the one who holds the certificate of election, there is no statute that has come to our notice which fixes the time within which the candidate who is actually the successful one may qualify [409] after the expiration of this period. It assuredly cannot be the law that the successful candidate, under such circumstances, can bide his own time; for if this be so, then he can wait for six months or the greater portion of the year, during which time the office would be vacant and the official duties would be unperformed. A public office is created by law, not for the benefit of the officer but for the public. In other words, the performance of the functions of a public office is of greater importance to the public than the alleged right of any man to an office. When the supervisors of the town, therefore, on the 16th day of April, declared the office of chairman vacant, the situation presented was as follows: The ten days during which the defendant could qualify had already elapsed. The legislature had fixed the ten-day period as a reasonable time within which one who had the certificate of election could qualify. Both the defendant and the relator must be presumed to have knowledge of the law. Not being required to file his oath during this ten-day period, the relator would necessarily and impliedly have a reasonable time thereafter within which to qualify. The supervisors of the town waited a period of five days beyond the ten-day period and no oath of office was filed by the relator, nor was there any attempt whatsoever made to assume the duties of the office, nor was there any claim made by him that he was entitled to the office. The complaint contains no allegation that the relator was not at all times aware of the illegal votes cast. Under such circumstances it would appear, and the legal presumption is, that the members of the town board discharged a clear duty imposed upon them by law. To have permitted a longer period of time to elapse before filling the vacancy would have laid the members of the board liable to a charge of failure to perform the duties imposed upon them by law. The complaint does not even allege that at any time prior to May 14th, when it was verified, the relator made any attempt whatsoever to qualify, or that he made any claim whatsoever to the office. We have read carefully the cases above cited, some of which are referred to in the brief of the relator. The facts in these cases are radically different from those involved [410] herein. In the Dahl Case the relator attempted to qualify by furnishing a satisfactory bond, which the clerk arbitrarily refused to approve. In the Mayworm Case the defendant held the office under the certificate of election. This was likewise so in the Miller and the Little cases, supra. No case that we have been able to- find in the books presents a situation on the facts similar to the one here involved. From the foregoing we conclude that the order of the circuit court must be affirmed. By the Court. — It is so ordered.