State ex rel. Dithmar v. Bunnell

• Decision Date: 08 January 1907
• Parties: STATE EX REL. DITHMAR v. BUNNELL.
• Court: Wisconsin Supreme Court

131 Wis. 198

110 N.W. 177

STATE EX REL. DITHMAR

v.BUNNELL.^a1

Supreme Court of Wisconsin.

Jan. 8, 1907.

Appeal from Circuit Court, Juneau County; J. J. Fruit, Judge.

Quo warranto on the relation of Julius T. Dithmar to determine the right of Melville L. Bunnell to the office of county judge of Juneau county. From a judgment in favor of defendant, relator appeals. Affirmed.Barney & Price, Veeder & Veeder, and J. T. Dithmar, in pro. per., for appellant.

Daniel H. Grady, for respondent.

CASSODAY, C. J.

It appears from the record and is undisputed that, December 10, 1904, the Governor appointed the relator county judge of Juneau county, to fill the vacancy created by the death of W. G. Beebe who had been elected to that office at the regular election in April, 1901. On December 17, 1904, the relator duly qualified as such county judge. The election to fill that office took place April 4, 1905, and at that time there were six candidates for the office, including the relator and the defendant. The votes cast at such election were canvassed by the board, and on April 13, 1905, the result was declared by the board to the effect that for the unexpired term of said office 2,546 votes were cast, of which the defendant received 800, John Price, Jr., 673, and the relator 626, and the balance were scattered among the three other candidates, and that for the full term of said office 3,183 votes were cast, of which the defendant received 926, John Price, Jr., 762, and the relator, 669, and the balance were scattered among the three other candidates, and so the county clerk of Juneau county on April 13, 1905, issued to the defendant a certificate of election for said unexpired term and also a certificate of election for the full term of said office. Thereupon and on the same day the defendant took and subscribed the requisite oath and executed the requisite official bond for said unexpired term and filed and deposited the same with the county clerk and subsequently and on July 17, 1905, recorded said official bond in the register's office of that county. On April 14, 1905, the defendant took and subscribed the requisite oath and executed the requisite official bond for said full term and filed and deposited the same with the county clerk and subsequently and on July 17, 1905, recorded said official bond in the register's office in that county. June 5, 1905, the defendant appeared at said office and demanded of the relator the possession thereof, but the same was refused by the relator; that June 7, 1905, the defendant again appeared at said office and demanded of the relator the possession thereof, but the same was again refused by the relator. July 28, 1905, and while the relator was absent from the state, the defendant broke and entered said office room, put a new lock upon the door thereof and retained the key to the same and has ever since held the possession of said office and acted as county judge of said county. September 5, 1905, the relator commenced this action of quo warranto to determine the right to said office of county judge. The defendant answered the amended complaint. At the close of the trial, the jury impaneled and sworn in the cause, by the direction of the court, found that the defendant had not usurped, intruded into, or wrongfully taken possession of the office of county judge of Juneau county, but that he was then, and was on the date of taking possession thereof, entitled to said office as the duly elected and qualified county judge of said Juneau county, and that Julius T. Dithmar, the relator herein, had no cause of action. From the judgment entered in pursuance of such verdict in favor of the defendant and against the relator, with costs, the relator brings this appeal.

1. Under the statutes of 1898 county judges were to be elected on the first Tuesday of April, 1901, and every fourth year thereafter; and the term of such office was to be four years and commence on the first Monday of January next after such general election. Section 2441, Rev. St. 1898. The same section provided that when a vacancy should occur in the office of county judge from any cause, the Governor should “appoint a county judge,” and the person so “appointed” should “hold for the residue or for the whole of the term.” Id. That section was amended in 1899 by striking out the words “for the residue or for the whole term,” and inserting in lieu thereof the words “until the first Monday of June next succeeding such appointment.” Section 2, c. 7, p. 10, Laws of 1899. Four years afterwards a statute was enacted, which, as applied to this case, declared that “in all cases of vacancy in the office of * * * county judge, the election to fill such vacancy shall be held on the first Tuesday of April next after the vacancy shall happen.” Section 4, c. 10, p. 15. Laws of 1903. Such were the provisions of the statutes applicable when the relator was appointed to fill the vacancy created by the death of Judge Beebe in December, 1904, and also when the election was held to fill that office April 4, 1905. Judge Beebe was elected for the full term of four years, in April, 1901, and, of course, had he continued to live, his term would not have expired until in January, 1906. Under the amendments to the statutes cited, it is obvious that the relator, by virtue of his appointment, had the right to hold the office “until the first Monday of June next succeeding such appointment,” which was June 5, 1905. And so, under the statutes in force at the time of the election April 4, 1905, some one was to be elected to fill the office for Mr. Beebe's unexpired term; that is to say, from June 5, 1905, to January 1, 1906, and also some one for the full term, commencing January 1, 1906. But, as urged by counsel, since the relator was duly appointed, qualified, and in possession of the de jure office, he was entitled to hold the same until his successor had been elected or appointed and qualified. Section 964, Rev. St. 1898; section 14, art. 7, Const; State ex rel. Finch v. Washburn, 17 Wis. 658; Mechem, Pub. Officers, § 397.

2. Counsel contend that the defendant was never nominated for the office. One of the grounds for this contention is that most of the electors who signed the defendant's nomination papers failed to state their residence or business, other than to add ditto marks below the business or residence of some former subscriber, as, for instance, below the words “Farmer,” “Plymouth,” “Lemonweir,” etc. The statute required that each voter should “add to his signature his business and residence--street and number--if any.” Subdivision 3, § 30, Rev. St. 1898. It seems to be settled that courts will take judicial notice of abbreviations in common use and also the ordinary contractions or abbreviations of Christian names. 17 A. & E. E. L. (2d Ed.) 897; 1 A. & E. E. L. (2 Ed.) 97-102, citing numerous cases. Thus, it has been held in Indiana that: “The use of a double comma following the name of a subscriber to such articles of association under the name of a certain specified locality sufficiently designates such subscriber's residence.” Steinmetz v. V. & O. T. Co., 57 Ind. 457. See, also, L. R., 12 Q. B. Div. 257. Our statutes expressly provide that, in legal proceedings, the use of “such abbreviations as are now commonly used in the English language may be used and numbers may be expressed by Arabic figures or Roman numerals in the usual manner.” Sections 2578, 4971, subd. 19, Rev. St. 1898. We are constrained to hold that the placing of such ditto marks below the business or residence of some former subscriber was a substantial compliance with the statute cited.

3. There is, however, a more serious objection to such nomination papers. After several of them were signed by qualified electors and voters of the county and delivered to the defendant they were changed by interlining the words “for the unexpired term.” As already indicated, some one was to be elected for the unexpired term and some one for the full term. The electors were at liberty to so nominate one person for the unexpired term and another person for the term beginning January 1, 1906, or they could nominate the same person for both positions. In fact one of such papers was changed by the defendant by interlining the words “for the unexpired term and the term beginning January, 1906.” The nomination papers of each candidate were to have signatures of the requisite per cent. of the voters of the county, and no voter could properly sign more than one nomination paper to the same office. Subdivision 3, § 30, Rev. St. 1898. “On ballots to be used at general elections” the statutes expressly provide that, “if any officer to be elected is to fill a vacancy, that fact shall be so specified upon the ballot.” The primary election law declares that the provisions of the statutes previously in force in relation to holding and conducting elections and all other kindred subjects should apply to all primaries in so far as they were consistent with the act. Sections 12, 16, 20, 25, c. 451, pp. 759, 762, 763, 766, Laws 1903. State of Wisconsin ex rel. Pray & Dopp v. Yankee (Wis.) 109 N. W. 550, 551;State of Wisconsin ex rel. Rinder v. Frank B. Goff (Wis.) 109 N. W. 628. Thus the statute required separate nomination papers for the unexpired term, as well as for the full term. The several nomination papers so signed by the qualified electors, respectively, expressed the choice of the voters signing the same as to who should become the candidate for the office therein specified. For the person therein named, after such signatures had been obtained, to change the name of the office therein prescribed was to practice a gross fraud upon such signers of the nomination papers. True, both sets of nomination papers related to the same office at different periods, but that did not give the defendant any right to so change such papers. The nomination papers were supposed to express the choice...