State ex rel. Duesing v. Lechner

• Decision Date: 22 June 1925
• Parties: STATE EX REL. DUESING v. LECHNER.
• Court: Wisconsin Supreme Court

187 Wis. 405

204 N.W. 478

STATE EX REL. DUESING

v.LECHNER.

Supreme Court of Wisconsin.

June 22, 1925.

Appeal from Circuit Court, Taylor County; G. N. Risjord, Judge.

Quo warranto by the State, on the relation of Ferdinand Duesing, against Otto J. Lechner. From an order sustaining defendant's demurrer, plaintiff appeals. Affirmed.

The relator, Duesing, and the defendant, Lechner, were rival candidates at the election held on April 1, 1924, for the office of town chairman of the town of Chelsea, in Taylor county, Wis. The complaint, among other things, alleges that the relator received more votes than the defendant, and that he therefore was the successful candidate, but that the inspectors of election erroneously and illegally issued a certificate of election to the effect that the defendant had received the majority of votes cast, and was elected to said office, which certificate was filed in the office of the town clerk of said town; that notwithstanding the issuance of the certificate aforesaid, the defendant intentionally failed to qualify for said office within the time provided for by law, with the design of having the supervisors of said town declare a vacancy, and to appoint him as such chairman; that on the 16th day of April, 1924, the supervisors of said town appointed the defendant as such chairman, and that he thereupon qualified as such officer, and ever since that time has been the incumbent of such office. The complaint further sets forth the names of eight alleged voters whose votes had been counted by the inspectors, and alleges that two of these voters were not qualified to exercise a franchise vote, and that the remaining six had not complied with the provisions of the statutes to entitle their votes to be counted, and that therefore the eight votes referred to were illegally cast, with the result that the defendant was given a majority in the canvass, and his name certified as the successful candidate.

The action is one of quo warranto, and in the prayer of the complaint the petitioner prays that the defendant be excluded from the office and the privileges and emoluments connected therewith, and that the relator be adjudged the duly elected officer at said election, and that he be invested with such office and its emoluments. The defendant interposed a general demurrer, which demurrer was sustained by the court.Oscar Rademacher, of Medford, for appellant.

Herman Leicht, of Medford, for respondent.

DOERFLER, J. (after stating the facts as above).

Section 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 required, within the time prescribed therefor shall be deemed a refusal to serve in such office.”

Section 17.03, Statutes, 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 subdivision (e) of subsection 4 of section 19.01 of the Statutes, the oaths of all town officers elected or appointed, except the town clerk, shall be filed in the office of the town clerk; and subsection 5 of section 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.”

[1] 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...