State ex rel. McManman v. Thomas

• Decision Date: 04 June 1912
• Parties: STATE EX REL. MCMANMAN ET AL. v. THOMAS ET AL.
• Court: Wisconsin Supreme Court

150 Wis. 190

136 N.W. 623

STATE EX REL. MCMANMAN ET AL.

v.THOMAS ET AL.

Supreme Court of Wisconsin.

June 4, 1912.

Appeal from Circuit Court, La Crosse County; E. C. Higbee, Judge.

Quo warranto by the State, on the relation of Frank McManman and others, against Fred Thomas and others. From a judgment for defendants, relators appeal. Affirmed.

Action of quo warranto to oust the defendants from the offices of trustees of the village of Kilbourn. It appears that Kilbourn was, during all of the times involved in this controversy, and still is, a municipal corporation incorporated under chapter 40 of the Statutes, and the board of trustees of such village consists of a president and six trustees. In the year 1902, and prior thereto, the notice of the annual election of said village provided for the election of six trustees, without specifying any length of term of office. In 1903 the notice of election provided for the election of six trustees, one-half to be elected for a term of one year and one-half for a term of two years. For the years 1904, 1905, 1906, 1907, 1908, and 1909 the notices of election provided for the election of three trustees for a term of two years. For the year 1910 the notice of election provided for the election of three trustees, without fixing the length of term of office. The notice of election held in April, 1911, provided for the election of six trustees, without fixing any length of term of office. At the election held in April, 1909, the relator C. H. Barrett and Harry Van Alstine and Herbert Bauer were elected trustees, and duly qualified as such. At the election held in April, 1910, the relators Frank McManman, Adam Hile, and M. H. Evans were elected trustees, and duly qualified as such. At the election held in April, 1911, the defendants Fred Thomas, E. H. Inglehart, Harry Snider, Henry Tofson, Austin Stowers, and William Blatchley received the largest number of votes cast, and were declared elected trustees for a term of one year. Subsequent to the election held in April, 1911, the relators Frank McManman, C. H. Barrett, M. H. Evans, and Adam Hile claimed to hold the offices of trustees of said village, and they appointed the relator Arthur D. Finegan trustee in the place of Harry Van Alstine, who had tendered his resignation as trustee to the said relators. Herbert Bauer also resigned as trustee; but no one was appointed to fill the vacancy.

The court found the above, among other facts, and as conclusions of law held (1) that chapter 329 of the Laws of 1901 had no application to the village of Kilbourn, but applied to villages incorporated under special charters only; (2) that, while the election held in April, 1911, was not in accordance with the provisions of chapter 11, Laws of 1911, yet it was competent for the Legislature to validate that election, and that by the passage of chapter 168 of the Laws of 1911 it did so validate it; (3) that the three trustees elected at the April election held in said village in 1910 were elected for a term of one year only; (4) that at the election held in April, 1911, the defendants were elected for a term of one year; and (5, 6) that the defendants are the de jure board of trustees of the village of Kilbourn, and had been such since the time they qualified for such offices, and are entitled to judgment that they have not intruded or usurped the offices of the trustees of the village of Kilbourn. From a judgment entered accordingly, the relators appealed.Daniel H. Grady, for appellants.

James F. Dougherty (W. S. Stroud, of counsel), for respondents.

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

The relators contend that the three trustees elected at the election in 1910 were elected for a term of two years; and therefore their term of office did not expire until 1912. They also contend that at the election in 1911 only three trustees were to be elected, and that, inasmuch as six trustees were in fact elected, the election was absolutely void under the rule announced in Attorney General ex rel. Carpenter v. Ely, 4 Wis. 420, and State ex rel. Holden v. Tierney, 23 Wis. 430; hence, no valid election having been held in 1911, the three trustees elected in 1909 held over and, together with the three trustees elected for a term of two years in 1910, constituted the legal board of trustees.

The defendants' claim is that the trustees elected in 1910 and 1911 were elected for a term of one year only; that there were therefore six trustees to be elected at the election of 1911, and the defendants, having received the largest number of votes cast at that election, and having been duly declared to be elected trustees, were legally elected, and constituted the legal board of trustees of said village of Kilbourn.

[1] Whether the contention of the relators or that of the defendants is correct primarily depends upon whether or not chapter 329, Laws of 1901, applies to villages incorporated under the general charter law, or only to villages incorporated under special charters, as found by the trial court. The chapter is entitled “An act to amend village charters, and providing for the election of trustees.” Section 1 thereof provides: “Villages that have a president and four or more trustees shall elect them as follows: The president shall be elected annually. On the first Tuesday in April, 1902, one-half of the trustees shall be elected for a term of one year and one-half of the trustees shall be elected for a term of two years and each year thereafter one-half of the trustees shall be elected for a term of two years; provided, that in villages having an odd number of trustees, the village board shall by ordinance determine the number to be elected in 1902 for a term of one year and the number to be elected for a term of two years, which number shall be one-half the number of said body as near as may be. Annually thereafter the trustees of said villages shall be elected for two years, except elections to fill vacancies, which shall be for the unexpired term.” If this law applies to villages incorporated under the general charter provisions, then it applies to all such villages; for section 875, Stats. (a section of the general charter law), provides for a president and six trustees for all villages incorporated thereunder. The language of the act is broad enough to apply to villages incorporated under the general charter law. But we think it is apparent from the title of the act, as well as from subsequent legislation, that it was intended to apply only to villages incorporated under special charters. The title is “An act to amend village charters.” No reference is made to any sections of the general charter law, which it is claimed to amend or repeal. Every act to which...