State ex rel. Jones v. Oates

• Decision Date: 29 December 1893
• Citation: 86 Wis. 634,57 N.W. 296
• Parties: STATE EX REL. JONES v. OATES.
• Court: Wisconsin Supreme Court

86 Wis. 634

57 N.W. 296

STATE EX REL. JONES

v.OATES.

Supreme Court of Wisconsin.

Dec. 29, 1893.

Appeal from circuit court, Grant county; Frank M. Fish, Judge.

Petition by the state of Wisconsin, on the relation of John D. Jones, for a writ of mandamus directed to Joseph C. Oates, to compel him to deliver to relator the moneys, records, books, papers, seals, and other property belonging to the office of the clerk of the circuit court of La Fayette county. From a judgment granting a peremptory writ, defendant appeals. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

It appears by the relation that the relator and the appellant were rival candidates for said office at the general election held November 8, 1892, the appellant then being the incumbent of said office; that the county canvassers decided that the relator received 2,343 votes, and the appellant 2,342 votes, and the county clerk thereupon issued to relator a certificate of election, in due form of law; that relator duly qualified, by giving the bond and taking the oath required by law; that his bond was duly approved, and deposited with the register of deeds of said county; that on the 10th of January, 1893, he demanded of appellant possession of the moneys, records, books, papers, seals, and other property of the office, but that appellant refused to surrender them, and has ever since pretended, without right, to discharge the duties of said office, and receive the fees thereof. Upon this relation an alternative writ of mandamus issued out of the circuit court, to which appellant made return, admitting that the parties were rival candidates for said office at the general election in 1892. The return further substantially admitted the canvass of the votes, the issuance of the certificate to the relator, and the relator's qualification for the office, setting forth, however, some alleged defects in the canvass, and the giving of the bond, which are not regarded as of sufficient importance to state. The return then states as a defense that the appellant, in fact received at such election 2,343 votes, and was elected by a majority of 3 votes; that 4 of the votes so cast for him at a certain precinct, though cast by legally qualified electors, were not counted for him by the inspectors, but were returned as defective, because they were indorsed by one ballot clerk only, instead of by both ballot clerks, or by one ballot clerk and an inspector; that it was by the throwing out of these 4 votes that the relator's apparent majority was secured. The return further states that appellant duly qualified for the office by giving bond and taking the oath of office, and claims that he has been and is now clerk of such court, and will continue to be such until the first Monday in January, 1895. The relator demurred to the return, as insufficient to constitute a defense or counterclaim, and the circuit court sustained such demurrer, and ordered the issuance of the peremptory writ of mandamus as prayed in relation. Oates appeals.Orton & Osborn and Wilson & Martin, for appellant.

Murphy & Gardner, for respondent.

WINSLOW, J., (after stating the facts).

It clearly appears by the statements of the relation and the expressed or implied admissions in the return that the relator was declared elected to the office of clerk of the circuit court of La Fayette county by the county board of canvassers of that county; that he received the proper certificate of election to that office; and that he qualified therefor as required by law; also, that the defendant was the former incumbent of the office, and has retained possession of the same after the expiration of his term, without certificate, commission, or other semblance of authority or right, but he claims that he can show that he in fact received the greater number of votes for the office.

The question first presented is, what effect is to be given to the canvass and certificate of election? Is the canvass a mere exercise in addition, to ascertain which column of figures is the greater? Is the certificate only a trophy given to the victor in the electoral battle, which is good for nothing except to exhibit to admiring friends, or hang upon the wall as an evidence of political prowess? If these questions are to be answered in the affirmative, then the canvass and the issuance of the certificate are evidently as useless as they are harmless. We think, however, that there is a substantial right conferred by the canvass on the person declared to be elected, of which right the certificate is the legal evidence. The canvass is for a purpose. It is to determine who was elected to the office. It is conducted by a tribunal created by the law to ascertain and decide that very question, and its determination must have some effect. Now, the effect which it has plainly must be to determine who is elected to the office. Not necessarily to determine the fact permanently or beyond the possibility of revision or reversal, but to determine the fact for the time being, and until a different result be reached in a proper proceeding to contest the title of the certificate holder to the office. As against any intruder in the office, and in fact as against all the world, except a de facto officer in possession of the office, under color of authority, the fact is settled by the determination of the canvassers, until, in a proper proceeding, that determination is reversed. This doctrine is in accordance with the uniform current of authority. McCrary, Elect. §§ 204-221, and cases cited; Merrill, Mand. § 142. A moment's reflection will convince any mind that this is not only a reasonable doctrine, but the only doctrine which can be tolerated. There will arise...