State Ex. Rel. Cornish v. Tuttle

• Decision Date: 27 September 1881
• Citation: 53 Wis. 45,9 N.W. 791
• Parties: STATE OF WISCONSIN EX. REL. CORNISH v. TUTTLE.
• Court: Wisconsin Supreme Court

53 Wis. 45

9 N.W. 791

STATE OF WISCONSIN EX. REL. CORNISH

v.TUTTLE.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from circuit court, Walworth county.

This action was brought to oust the defendant from the office of president of the village of Whitewater, which, it is alleged, he has usurped, and is unlawfully exercising. The complaint alleges that on the third day of May, 1881, a pretended election was held in said village, pursuant to its charter, (chapter 164, Pr. and L. Laws 1858,) and that certain persons named in the complaint were declared by the election board duly elected to the offices, respectively, of president, trustees, and clerk of said village for the ensuing year; that the persons so declared elected met in the evening of the same day and pretended to qualify as such officers; that the person declared elected president then resigned his office; that the board of trustees pretended to accept his resignation, and thereupon appointed the defendant president of the village, to fill the vacancy; and that, from thence hitherto, the defendant has acted as such president, claiming to hold the office by virtue of said appointment. It is claimed, and alleged in the complaint, that all of the foregoing proceedings are null and void, because of the following provisions in section 4 of the village charter: “At the first election, and at all subsequent elections of officers in said corporation, every person residing therein and qualified to vote for town officers, in the town in which said corporation is situated, and who shall have resided in the village 20 days, next preceding the election at which he may offer his vote, shall be entitled to vote in such village for any officer required to be elected by this act, and the person or persons having the highest number of votes shall be declared duly elected. Whenever any person shall present himself to give his vote, and either of the judges shall suspect that such person does not possess the qualifications of an elector, or if his vote shall be challenged by an elector, the judges of election, or some one of them, before receiving the vote of any such person, shall require such person to take an oath, in addition to the oath required by any general law of this state, that he possesses the qualifications required by this section of the act, and that he has not voted at such election. If the person offering to vote shall take such oath, his vote shall be received; and if any person shall take such oath, knowing it to be false, he shall be deemed guilty of wilful and corrupt perjury, and on conviction thereof shall suffer such punishment as is now, or shall be hereafter, provided by law for persons guilty of perjury.” The defendant demurred to the complaint on the single ground that it does not state facts sufficient to constitute a cause of action. The plaintiff has appealed from an order sustaining such demurrer.Bishop & Cravath and I. C. Sloan, for appellant.

S. U. Pinney and Weeks & Steele, for respondent.

LYON, J.

The constitution ordains that “all city, town, and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns, or villages, or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose.” Article 13, § 9. Manifestly, the term “electors,” in this provision, is synonomous with “voters” in sections 7 and 8 of the same article, which relate to the division of counties and the removal of county seats; and it is settled that the latter term in section 8 means those persons who have the qualifications of electors prescribed in article 3 of the constitution. State ex rel. Knowlton v. Williams, 5 Wis. 308;State ex rel. Cothren v. Lean, 9 Wis. 279. We cannot doubt, therefore, that the constitution gives to every person residing in the village of Whitewater, when any election for municipal officers is held, and who has the qualification of an elector specified in article 3, the right to vote at such election. The legislature has no power to restrict that right by imposing additional qualifications. Hence, the provision of section 4 of the village charter, which enacts in substance that an elector, otherwise qualified, must reside in the village 20 days next preceding an election for municipal officers before he is entitled to vote at such election, is in contravention of section 9, art. 13, of the constitution, and is therefore null and void.

But because the charter of the village of Whitewater contains this void provision, it by no means follows that the whole act of incorporation is void. Strike out the void part, and the charter still contains valid provisions amply sufficient to enable the municipality fully to perform all of its functions. The rule in such a case, frequently...