State v. Trumpff

• Decision Date: 27 May 1880
• Citation: 5 N.W. 876,50 Wis. 103
• Parties: THE STATE OF WISCONSIN AND ANOTHER v. TRUMPFF.
• Court: Wisconsin Supreme Court

50 Wis. 103

5 N.W. 876

THE STATE OF WISCONSIN AND ANOTHER

v.TRUMPFF.

Supreme Court of Wisconsin.

Filed May 27, 1880.

This action, in the nature of a quo warranto, is founded on the following complaint:

“The complaint of the above-named plaintiffs against the above-named defendant respectfully shows that at an election held in the city of Milwaukee on the first Tuesday in April, 1878, said defendant was elected treasurer of the city of Milwaukee for the official term of two years then next ensuing, according to the provisions of the charter of said city, and that he qualified, and entered upon the discharge of the duties of said office.

That at the annual muncipal election, held in said city of Milwaukee, according to law, on the first Tuesday of April, 1880, said defendant was a candidate for re-election, and said plaintiff Albert B. Geilfuss was also a candidate for said office of said city treasurer for the official term then next ensuing; that said defendant received at such election five thousand five hundred and eighty-eight (5,588) votes, and said plaintiff Albert B. Geilfuss eight thousand nine hundred and seventy-two (8,972) votes; that they were the only persons voted for for said office, and said plaintiff received a majority of three thousand three hundred and eighty-four votes for the same.

That said votes were duly canvassed by the common council of the city of Milwaukee on the twelfth day of April, 1880, and said plaintiff Albert B. Geilfuss was then and there duly declared elected to said office, and was, on the thirteenth day of April, 1880, duly notified of said election.

That said plaintiff, on the nineteenth day of April, 1880, duly filed in the office of the clerk of said city his official bond as treasurer of said city, for the term of office then next ensuing, with good and sufficient surieties, and duly executed, witnessed and acknowledged, as required by law.

That said plaintiff is a native of Germany; that he came to said city of Milwaukee in the year 1853 with his parents, he being then six years of age; that he has resided in said city ever since that time, and does now there reside; that long before his majority his father declared his intention to become a citizen of the United States in due form of law, and thereafter continuously exercised the rights of an elector in the state of Wisconsin.

That on the twenty-first day of April, 1880, said plaintiff was duly admitted to citizenship of the United States, in the municipal court of Milwaukee county, in due form of law.

That afterwards, and on the same day, he took and subscribed the oath of office as such treasurer prescribed by law and the constitution of this state, and filed the same, duly certified by the officer who administered the same, with the clerk of said city.

That thereafter, and on the same day, the common council of said city, then and there being in regular and lawful session, by resolution duly passed, accepted and approved said official bond filed by said plaintiff.

That thereafter, and on the twenty-second day of April, 1880, said Albert B. Geilfuss demanded of said defendant, then still in the possession of said office, that he deliver the said office, and all the books, papers and property thereto belonging, to him, the said Geilfuss, which said defendant then and there refused, and still doth refuse to do.

And the plaintiff shows that said defendant does unlawfully hold and usurp the said office.

Wherefore the plaintiffs demand judgment that said defendant is not entitled to said office, and that he be ousted and excluded therefrom, and that said plaintiff Albert B. Geilfuss is entitled thereto, and to all the rights and emoluments thereof, and for costs against the defendant.”

The defendant demurred to the complaint on the alleged ground that the same did not state facts sufficient to constitute a cause of action. The circuit court sustained the demurrer. From the order sustaining the same this appeal is taken. The provisions of the city charter referred to in the opinion are as follows, (chapter 184, Laws 1874, p. 314, subc. 2:)

“Section 2. The annual municipal election in said city shall be held on the first Tuesday in April of each year. * * Sec. 3. * * The mayor, treasurer, comptroller and attorney shall be elected on the first Tuesday of April, A. D. 1874, being the first municipal election under this act, and biennially thereafter. The officers so elected shall enter upon the duties of their respective offices on the third Tuesday of April in the year of their election, and shall hold their respective offices for the term of two years, and until their successors shall be elected and qualified.

Sec. 8, (as amended by section 3, c. 144, Laws 1875.) * * All persons entitled to vote for county or state officers, and who shall have resided in the city for one year next preceding the election, and for ten days in the ward where they offer to vote, shall be entitled to vote for any officer to be elected under this act, and to hold any office thereby created.

Sec. 12. * * Within one week after any election the common council shall meet and canvass said returns, and declare the result as it appears from the same, and the clerk shall forthwith give notice of his election to each officer elected.

Sec. 13. * * In case of a tie vote, * * or when any officer elected or appointed for the city shall remove his residence without the limits of the city, * * or when any such officer shall refuse or neglect, for ten days after notice of his election or appointment, to qualify and enter upon the discharge of the duties of his office, the office shall be deemed vacant.”

Jenkins, Elliott & Winkler, for appellants.

Joshua Stark, for respondent.

LYON, J.

Only two cases have been adjudicated by this court which have any direct bearing upon the questions to be determined on this appeal. These are State ex rel. Off v. Smith, 14 Wis. 497, and State ex rel. Schnet v. Murray, 28 Wis. 96. In the first of these cases it...