State ex rel. Oaks v. Brown

• Decision Date: 06 June 1933
• Citation: 249 N.W. 50,211 Wis. 571
• Parties: STATE EX REL. OAKS v. BROWN.
• Court: Wisconsin Supreme Court

211 Wis. 571

249 N.W. 50

STATE EX REL. OAKS

v.BROWN.

Supreme Court of Wisconsin.

June 6, 1933.

Appeal from a judgment of the Circuit Court for Winnebago County; Fred Beglinger, Circuit Judge.

Quo warranto proceeding by the State, on the relation of George F. Oaks, against Taylor G. Brown. From a judgment for relator, defendant appeals.--[By Editorial Staff.]

Affirmed.

Action begun April 18, 1933; judgment entered May 5, 1933. Quo warranto to establish the title to the office of mayor of the city of Oshkosh. The city of Oshkosh, a city of the second class, had operated under the commission form of government (chapter 63 [section 63.01 et seq.]) since April, 1912. Beginning with the month of October, 1931, a movement was set on foot to change the form of government from the commission to the aldermanic, and, to accomplish that purpose, a petition signed by 3,969 electors was filed in the office of the city clerk. The city clerk examined the same and appended thereto a certificate in conformity with the provisions of section 10.43(3), certifying that there were 3,136 legally qualified and sufficient signatures appearing upon the petition. The total vote cast for Governor at the last preceding general election was 8,907, so that the number of signatures appearing upon the petition was more than 35 per cent. of the vote cast for Governor at the last general election. No question is raised in regard to the sufficiency of the petition and the qualifications of the signers thereto.

On the 4th of January, 1932, an action was begun to restrain the city of Oshkosh and the common council from calling a special electionto submit the proposed charter ordinance embodied in the petition filed by the electors.

Thereupon, on the 5th day of January, 1932, the commission council passed a resolution not to submit the proposed ordinance at a special election, but to submit it to the voters at the next regular city election to be held on April 5, 1932.

On March 23, 1932, the commission council adopted a resolution to the effect that the proposed charter ordinance should be submitted to a vote of the electors, and instructing the clerk to place the same on the official ballot at said election.

The proceedings had on January 5th, as well as those had on March 23d, were duly published at length in the Daily Northwestern, an official newspaper, over the signature of the city clerk as a part of the council proceedings.

At a meeting of the commission council on March 24th, a resolution was adopted determining the form in which the proposed charter ordinance should be submitted. The proceedings had at this meeting were likewise published in the official paper.

On March 28, 1932, and April 4, 1932, the city clerk of the city of Oshkosh caused a facsimile ballot to be published in full, in the Daily Northwestern, the official paper, including the charter ordinance.

At the election held on April 5th, 4,551 persons voted in favor of the adoption of the ordinance; 4,174 persons voted against the adoption of the ordinance.

On March 14, 1933, a primary election was duly held in the city of Oshkosh for the nomination of officers under the aldermanic form of government, and on April 4, 1933, a mayor, city treasurer, city comptroller, and 32 aldermen were chosen. At this election the relator, George F. Oaks, was the successful candidate for the office of mayor. Upon receiving his certificate of election, Oaks qualified and made demand upon the defendant, Taylor G. Brown, for the office, which demand was refused by Brown, manager under the commission form of government, on the ground that the proceedings had were insufficient to work a change in the form of government.

Upon the refusal of the Mayor Brown to comply with the demand, the relator began this action to try the title to the office of the city mayor of the city of Oshkosh, complaint and answer were filed, and the issues presented to the court. Upon a trial, the court made and filed its findings of fact and conclusions of law, upon which the court concluded that from the proceedings had the will of the electors could be ascertained, and judgment was entered accordingly, adjudging that the defendant had unlawfully intruded into the office of Mayor and adjudging the relator to be legally entitled thereto, from which judgment the defendant appeals.

Bouck, Hilton, Kluwin & Dempsey and Ray C. Dempsey, all of Oshkosh, for appellant.

Barber, Keefe, Patri & Horwitz, of Oshkosh (W. Mead Stillman, of Oshkosh, of counsel), for respondent.

ROSENBERRY, Chief Justice.

The determination of the issues raised on this appeal presents a very narrow question. Section 63.13 provides: “Any city which shall have adopted the provisions of this chapter may abandon the same and reorganize under the provisions of chapter 62 [aldermanic form] or 64 [manager form], or under a home rule charter by proceeding in accordance with the provisions of section 63.01.”

Section 63.01 provides: “Any city of the second, third or fourth class may reorganize under the provisions of this chapter, either by enactment of a charter ordinance or by a petition and referendum election as provided by section 66.01 of the statutes. Such petition and election shall be governed by subsections (2) to (5) of section 10.43.”

Section 66.01 defines a charter ordinance as “any ordinance which enacts, amends or repeals the whole or any part of the charter of a city or village, or makes the election mentioned in subsection (4) of this section.”

Such an ordinance must be adopted by a two-thirds vote, and is subject to a referendum.

The commission council having adopted no charter ordinance, the procedure followed in this case was that prescribed by section 10.43, entitled “Direct Legislation.” Subsections (1), (2), and (3) of section 10.43 relate to the form, circulation, and sufficiency of the petition. Subsection (4) provides: “Such proposed ordinance or resolution shall thereupon either be passed without alteration by said common council within the thirty days next following the date of the clerk's final certificate, or it shall be submitted without alteration by said council to the electors of the city at the next regular election, if one be held not less than forty days after such date, otherwise at the next succeeding regular election; but the council may by a three-fourths vote of the members-elect order it submitted at a special election called for that purpose at any time prior to said next succeeding regular election.”

Subsection (5) provides that the city clerk shall “not more than twenty nor less than five days before the election * * * cause the ordinance or resolution submitted to the voters to be printed in at least two, but not to exceed four, daily newspapers published in the city, or, if there shall be but one daily newspaper published in said city, then in such daily newspaper and in one or more other daily or weekly newspapers of general circulation therein.”

The defendant contends that the proceedings to adopt the charter ordinance are invalid for the following reasons: (1) The city clerk failed to call a special election as provided by section 10.40 of the Statutes; (2) that the city clerk failed to give notice of the special election as required by section 10.36 (3); (3) that the city clerk failed to publish the charter ordinance, as required by section 10.43 (5).

It must be conceded that the city clerk did not in terms comply with the statutory provisions in the foregoing respects. The relator contends, however, that the publication of the proposed charter ordinance in full as a part of the council proceedings had on January 5th and on March 23d, which publications were on January 6 and March 24, 1932, and the publication of the ordinance in extenso as a part of the official ballot of the proposed charter ordinance, which official ballot was published on March 28th and April 4th in the Daily Northwestern, was a sufficient compliance with the requirements of section 10.43 (5).

With respect to the failure of the city clerk to give notice of the election as required by section 10.40 (1), which incorporates section 10.36, the relator urges: (1) That section 10.36 (3) provides that “the failure to give such notice shall not invalidate such election.” That, as a matter of fact, the publication of Exhibit G, which was a facsimile of the official ballot on March 28th and April 4th, which was over the signature of the city clerk and the county clerk, and upon which the proposed charter ordinance was printed in full, and the time and place of voting in each ward was indicated, was a sufficient notice, although the first publication was only eight days prior to the date of the election.

To this contention the defendant replies that what the city clerk did was done pursuant to other requirements of the law, and was not intended to be a compliance with the statutes respecting the calling and holding of special elections. We should have great difficulty in sustaining the relator's contention if we were required to determine this question upon general principles of law as declared in prior decisions of this Court. Janesville Water Co. v. Janesville, 156 Wis. 655, 146 N. W. 784;Hubbard v. Williamstown, 61 Wis. 397, 21 N. W. 295;State ex rel. City of Manitowoc v. Green, 131 Wis. 324, 111 N. W. 519.

[1] In addition to the provision contained in section 10.36, to the effect that failure to give notice of the election shall not invalidate the election, we are also met with section 5.01 (6): “This title shall be construed so as to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to comply with some of its provisions.”

The words “This title” refer to title 2, Elections, chapter 5, “Nomination of Candidates for Office” (section 5.01 et seq.); chapter 6, Electors and General Elections (section 6.01 et seq.) chapter 7, Elections to Fill Vacancies (...