State ex rel. Stark v. Hines

• Decision Date: 11 October 1927
• Citation: 194 Wis. 34,215 N.W. 447
• Parties: STATE EX REL. STARK v. HINES.
• Court: Wisconsin Supreme Court

194 Wis. 34

215 N.W. 447

STATE EX REL. STARK

v.HINES.

Supreme Court of Wisconsin.

Oct. 11, 1927.

Appeal from a judgment of the Circuit Court for Barron County; W. R. Foley, Circuit Judge. Affirmed.

Quo warranto by the State, on the relation of Charles A. Stark, against Margaret Hines, administratrix with the will annexed of the estate of M. S. Hines, deceased. Judgment dismissing writ, and plaintiff appeals. Affirmed.--[[[By Editorial Staff.]

Quo warranto brought to test title to the office of second municipal judge of Barron county. The respondent died pending hearing in this court, and the administratrix of his estate was substituted in his stead by stipulation and order of this court.Bundy, Beach & Holland, of Eau Claire, for appellant.

Coe Brothers, of Barron, for respondent.

CROWNHART, J.

The facts are not in dispute. So far as material to the issue, they are: The appellant was elected to the office of second municipal judge of Barron county in April, 1923, for a four-year term, qualified, and assumed the duties of the office. At the same time he was elected to the office of city attorney of Rice Lake, qualified, and assumed the duties of that office. He held both offices until April, 1925, when he was again elected to the office of city attorney. He again qualified as city attorney and assumed the duties of such office. He continued in the office of second municipal judge, and performed the duties thereof. The respondent was appointed to the office of second municipal judge in February, 1926, qualified, possessed the office, and assumed the duties thereof. Thereupon the appellant brought quo warranto to oust respondent and to regain the office for himself, together with the emoluments thereof retained in the meantime by respondent.

The circuit court denied appellant's claim, and entered judgment dismissing the writ, with costs to respondent. Appellant appealed.

It is the contention of appellant that respondent was illegally appointed and had no right to the office, on the ground that there was no vacancy in the office at the time. The statute creating the office (Laws 1887, c. 167, as amended by Laws 1891, c. 87) fixed the term at four years and until a successor should be elected and qualified. The appellant's counsel contends that this case is ruled by State ex rel. Wheeler v. Nobles, 109 Wis. 202, 85 N. W. 367, where it was held that a school treasurer could not vacate his office during his term, under a similar statute, by accepting an election to the office of school clerk. But the court there affirmed the general rule of the common law, as follows:

“There can be no doubt about the general proposition that he who, while occupying one office, accepts another incompatible with the first, ipso facto absolutely vacates the first office, and his title is thereby terminated...