State ex rel. Ackerman v. Dahl

• Decision Date: 16 March 1886
• Citation: 27 N.W. 343,65 Wis. 510
• Parties: STATE EX REL. ACKERMAN v. DAHL.
• Court: Wisconsin Supreme Court

65 Wis. 510

27 N.W. 343

STATE EX REL. ACKERMAN

v.DAHL.

Supreme Court of Wisconsin.

Filed March 16, 1886.

Appeal from circuit court, Fond du Lac county.

F. Hamilton & Son, for respondent.

J. A. Kelley, for appellant.

TAYLOR, J.

This is an action commenced on the part of the state, on the relation of the respondent, to oust the appellant from the office of treasurer of joint school-district No. 3, composed of a part of the city of Waupun and of parts of the towns of Waupun, Alto, Trenton, and Chester, in the counties of Dodge and Fond du Lac. The complaint alleges, in general terms, the existence of a joint school-district composed as above stated, and that the officers of such district consist of a director, treasurer, and clerk. It then alleges that in the month of July, 1884, one F. F. Zimmerman was duly elected treasurer for said district for the term of three years; that he entered upon the duties of his office, and thereafter, and on the sixth of February, 1885, he resigned his office, and thereby the office of treasurer of said district became vacant; that afterwards, at the annual school-district meeting held on July 6, 1885, the said John N. Ackerman, who was then a resident and elector within said district, was duly elected to said office of treasurer, by a majority of the voters thereof at said meeting, to fill said vacancy; that he did not file his bond, as required by law, within 10 days after notice of his election, and so the office again became vacant, and continued to so remain vacant, no appointment having been made by the director and clerk of said district, until the fourth day of August, 1885, on which day the relator, the said John N. Ackerman, was appointed by the clerk of the city of Waupun, in which said city the school-house of said district is situated, as treasurer of said district to fill said vacancy; and that, within 10 days after said appointment, the relator executed his bond as such treasurer with sufficient sureties, in due form, and according to the provisions of law. A copy of the bond so executed, together with the affidavits of the sureties, justifying as to their responsibility as such sureties, is set out in the petition. It then alleges that he presented said bond to the director and clerk for their approval within said 10 days; that said director approved the same, but the clerk refused to approve it or file the same in his office; and alleges generally that he accepted the office, and in all respects qualified himself to assume the duties thereof.

The complaint then makes the following allegations: “That the above-named defendant, Martin K. Dahl, claiming to have been appointed by the town clerk of said town of Chester to fill the aforesaid vacancy created by the resignation of the said F. F. Zimmerman, and the neglect of the said John N. Ackerman to file his bond first above mentioned, as such treasurer-elect, within the time required by law, and without any other or any legal warrant, right, or grant whatever, intruded into and usurped said office, and still unlawfully holds and exercises the same. Wherefore the said John N. Ackerman demands judgment in this action: (1) That said Martin K. Dahl, the defendant in this action, is not entitled to said office, and that he be ousted therefrom; (2) that said John N. Ackerman, the relator and plaintiff herein, is entitled to said office, and to assume the execution of the duties of the same, on filing his bond, of which a copy is hereinbefore set forth, with the clerk of said school-district; (3) that said plaintiff recover of said defendant his costs of this action.” To this complaint the defendant demurred, on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, “with leave to the defendant to answer the same within three days, and, in default of such answer, that judgment be entered against the defendant, and in favor of the plaintiff, according to the demand in the complaint, unless further time is given; and that, in case the defendant shall so file and serve such answer, the issues as finally made shall stand for trial at the present term of this court.” The order so made was duly excepted to by the defendant, and from such order he appealed to this court.

Upon the hearing in this court the appellant assigns the following errors: (1) That the complaint is insufficient because it does not show that there is any such corporation as joint school-district No. 3, etc., as set out in the complaint; (2) that the complaint does not state any facts showing that the defendant is exercising the duties of the office of treasurer of said district; (3) that the complaint does not show that the relator is entitled to hold the office of treasurer of said district.

The first objection made to the complaint is clearly untenable. This is not a proceeding against the defendant for unlawfully using and exercising the functions of a corporation within this state, but for intruding himself into and exercising the duties of a public office of the state. The statutes of the state require school-districts, whether joint or otherwise, to elect a director, clerk, and treasurer, and define their respective duties, as well as their terms of office; and there would seem to be no more reason for setting up facts showing the organization of a school-district in such case than there would be in setting up the facts by which a town or county was brought into existence, when the action is against a person for usurping a town or county office, and we are unable to find any case in which it is held that the complaint must allege such facts. The case of People v. DeMill, 15 Mich. 164, cited by the learned counsel, is not in point. In that case the relator was calling upon the court to remove certain officers of a church corporation, whose election or appointment was not required by any general or special law of the state, but whose existence and right to act depended upon the acts of a corporation which the general laws of the state permitted to be organized. In such case the court were of the opinion that the facts showing the creation of such corporation should be alleged, and also the facts showing that, under the authority of such corporation, the persons sought to be ousted were in fact holding an office under such corporation. Chief Justice COOLEY, in his opinion, makes the distinction above stated. He says: “The information in a case like the present must therefore show that a corporation exists; for until that is shown it is not made to appear that there is any office into which the defendants can intrude. The precedents in proceedings against public officers are not applicable in all particulars to the case before us, since those are cases where the courts must judicially take notice of the existence of the offices, and no allegations are necessary to show how they are created.” Again, he says: “We were referred upon the argument to several cases in which it has been held that, when the state calls upon one to show cause why he claims to exercise a corporate franchise or to possess a public office, the allegations of the attorney general may be of the most general character, while the defendant is required to set forth specifically and particularly the grounds of his claim, and the continued existence of his right. * * * We have no disposition to qualify these decisions in any way.” He then distinguishes the case he is then considering from cases of the kind referred to. In the case at bar this court must take judicial notice that there is such a public office as a treasurer of a school-district, and in this proceeding it is unnecessary to show how the office was created. If any allegation of the existence of the school-district be necessary in the complaint, it is sufficient to allege such existence in general words. This is in accordance with all the precedents we have been able to find.

It is further objected that the complaint does not show any official acts done by the defendant as treasurer of said...