State ex rel. Newell v. Purdy

36 Wis. 213

• Court: Wisconsin Supreme Court
• Decided: June 15, 1874
• Status: Published

Opinion

Lyon, J.

It is provided by statute as follows: “ At the annual meeting in November, in every year hereafter, the county board of supervisors for the several counties shall fix and determine the amount of the annual salary that shall be received by each and every county officer who is to be elected in their respective counties during the ensuing year, and whose annual salary the said supervisors have now or may hereafter have authority to establish. The salary thus determined upon for each and every such officer, shall be and remain his salary, without increase or diminution, during his term of office.” Laws of 1867, ch. 75, secs. 1 and 2 (Tay. Stats., 304, §§ 62, 63).

Chapter 121, Laws of 1868, conferred upon the board of supervisors authority to fix the salary of the county judge. Pursuant to these statutes, the board of supervisors of Yernon county, at the annual meeting in November, 1872, fixed the salary of the county judge of that county to be elected in the following April, at $1,000 per annum. The annual salary of the judge then elected was thus fixed at the sum named for his whole term, and the board of supervisors had and have no power to change it.

Hence, the proposition of the relator to the electors of the county, which is set out in the answer, was simply an offer that if they would elect him to the office of county judge, he would give the county four hundred dollars per annum, together with certain articles of personal property (the value of which is not stated), so long as he should hold the office under such'election. In view of the absolute right of the person elected to receive the salary fixed by the board, and which the board had no power to change,'the proposition of the relator admits of no other construction.

Had the relator offered the same or any other sum of money, or any property, to individual electors of the county for their votes, all votes which he obtained thereby would be rejected by any court called upon to determine his right to the office; and although the election might not be declared void because of such offer, yet if the number of votes so rejected were sufficient to change the result of the election, judgment would go against the relator. State ex rel. Hopkins v. Olin, 23 Wis., 327, and cases cited.

The case we have supposed involves the crime of bribery, but that term has a more extensive signification. It may properly •be employed to define acts not punishable as crimes, but which involve moral turpitude or are against public policy. In this case the answer does not contain allegations of fact showing that the relator or any of the voters of the county had been guilty of the criminal offense of bribery ; and the question is, whether any acts short of that will justify the rejection of votes cast for the relator.

Hawkins, in his treatise on the Pleas of the Crown, after defining the term bribery when used in a strict sense, that is, as descriptive of a crime, proceeds thus: “Also bribery sometimes signifies the taking or giving of a reward for offices of a public nature. And certainly nothing can be more palpably prejudicial to the good of the public than to have places of the highest concernment, on the due execution whereof the happiness of both king and people doth depend, disposed of, not to those who are most able to execute them, but those who are the most able to pay for them; nor can anything be a greater discouragement to industry and virtue, than to see those places of trust and honor which ought to be the rewards of those who by their industry and diligence have qualified themselves for them, conferred on s.uch who have no other recommendation but that of being the highest bidders; neither can anything be a greater temptation to officers to abuse their power by bribery and extortion and other acts of injustice than the consideration of the great expense they were at in gaining their places, and the necessity of sometimes straining a point to make their bargain answer their expectation.” Vol. 1, ch. 27, sec. 8. Again the same learned author says: “ It is of the utmost importance to the public welfare, that, in the administration ^--of the government, none but persons competent to perform the duties of their offices should be admitted into any department. ■But if the sale of offices were allowed to those who have the patronage and appointment, it is evident 'that there would be the greatest danger of situations being filled, not by those whose talents fitted them for the station, but whose purses enabled them to obtain it. The sale of offices may therefore justly be ranked as an offense against the political economy of the state.” Book 1, ch. 32, p. 748. It will thus be seen that the sale and purchase of an office is considered as a kind of bribery. The effect of bribery, by the rules of the common law, independently of any constitutional or statutory provision on the subject, is thus stated by Lord Glenbervie in his note to the case of St. Ives, 2 Election Cases (Douglas), 403: “ It is essential to the very idea of election, that it should be free, and this has been declared by the legislature in the statute of Westminster I (3 Edw. I., ch. 5), with regard to elections in general, and by the Declaration of Rights (1 W. & M., 2 Sess., ch. 2) with regard to elections of members of parliament. Hence it is understood that, independent of positive statutes against bribery, whenever a person is returned in consequence of an undue influence acquired by that means, his election is void ; and that every vote purchased by bribery is also void; the person who gave his vote under such influence being to be considered as if he had not voted at all.”

It is believed that the term bribery is here employed in the larger sense mentioned in Hawkins, and includes the buying or selling of an office, or any unlawful payment of money to procure an office, as well as the direct bribery of an elector.

As early as 1678, the house of commons made a standing order declaring it bribery if a candidate for the house should give or promise any gift or reward to the county, town or borough from which he sought to be returned to parliament, after writs of election had been issued; and the order punished the person so offending by expulsion and a limited disqualification. 2 Douglas, 404. In later times the principle of this order has been enacted into laws which impose severe penalty for any improper use of money, or any promises to pay money, to influence elections.

The statute of Westminster cited in Douglas, is this: “And because elections ought to be free, the king commandeth upon great forfeiture, that no man by force of arms, nor by malice or menacing, shall disturb any to make free election.” 3 Edw. I, ch. 5 (A. D. 1275).

The same principles have frequently been recognized in this country. The cases in New Hampshire, cited by the counsel for tbe defendant, are to the effect that it. is against publio policy to sell public offices to those who will pay the most for them, or to bestow them upon those who will discharge their duties for the least compensation. It seems that a practice had prevailed in that state of putting up at public auction, and disposing of the office of constable to the highest, and of collector to the lowest bidder. In Tucker v. Aiken, 7 N. H., 140, the court says: “ Setting up an office at auction in the manner the town of Derry did in this instance, has all the mischief of a sale. It has a tendency to divert the attention of the electors from the qualifications of the candidates to the terms on which they will consent to serve, and makes the choice turn upon considerations which ought not to have an influence. * * * A collector thus chosen is not fit to be trusted with the power to seize the goods and arrest the bodies of citizens, especially of citizens who do not concur in the choice. And if an action of trespass had been brought against Stowell for taking the goods mentioned in the declaration, he would probably have found it very difficult to show a legal defense. In such a case the legality of his election might have been examined and settled.” Here is a strong intimation that an election thus obtained is void, and such is the fair inference to be deduced from the other cases in that state. If void, it is because the means employed to secure the election contain, so far a3 the public and the state are concerned, all the essential elements of bribery. It should also be observed that the question in that state was not presented by any constitutional or statutory provision, but was considered entirely on common law grounds.

In Alvord v. Collin, 20 Pick., 428, the court say: “We fully recognize the validity of the objection to the sale of offices, whether viewed in a moral, political or legal aspect. It is inconsistent with sound policy. It tends to corruption. It di: verts the attention of the electors from the personal merits of the candidates to the price to be paid for the office. It leads to the election of incompetent and unworthy officers, and on their part to extortion and fraudulent practices to procure a remuneration for the price paid. Nor can we discover a difference in principle between the sale of an office for a valuable consideration and the disposing of it to the person who will perform its duties for the lowest compensation. In our opinion the same objection lies against both.” That court thus agreed to the doctrine of the New Hampshire court, but held that a collector of taxes was not within the principle, because his employment is not a public office.

A very notable case in which the same principle was applied by the legislature of Massachusetts, occurred in the year 1810. It seems that certain towns were each entitled to several representatives m the legislature, and among them the town of Gloucester was entitled to six representatives. Each town was required by law to pay its own members, and for economical reasons the town of Gloucester usually returned but two instead of six. For political reasons it was thought desirable that the town should elect a full delegation, and thereupon certain individuals, with a view to induce the town to do so, gave a bond for the use of the inhabitants, conditioned that the whole expense of a full representation should not exceed the pay of two members, and six members were accordingly elected. Although the members elect had no agency in procuring such bond to be given, the house of representatives, by a vote of 224 to 125, declared the election void and the seats of the whole delegation from Gloucester vacated. Reports of Controverted Election Cases, by Cushing, Storey & Josselyn (Mass.), 97 (Gloucester Case).

The doctrine which we think is established by the foregoing authorities, and which we believe to be sound in principle, is, that a vote given for a candidate for a public office in consideration of his promise, in case he shall be elected, to donate a sum of money or other valuable thing to a third party, whether such party be an individual, a county, or any other corporation, is void. The power to reject such vote is not vested in tbe election canvassers, but is vested in tbe court wbicb is called upon to determine judicially tbe result of the election.

The grounds upon which this doctrine is based, are so clearly and fully stated in the above extracts from the authorities, that it seems unnecessary to repeat them. Indeed, every intelligent person knows that free, unbiased, and (in the language of some of the books) indifferent elections are absolutely essential to the existence of free institutions.

It was argued by the learned attorney general, that the proposition made by the relator to the voters of Vernon county was merely a protest against high salaries, and, being in the direction of reform and economy in public expenditures, should rather be commended than censured. Promises made to the people by candidates for public office, that, if elected, they will practice a rigid economy in the expenditures of their several departments, are unobjectionable; and if the successful candidate fulfills his pledges in that behalf, he is entitled to commendation. In such case, the candidate only promises to perform a legal and moral duty. Eor example, should a candidate for governor promise that, if elected, he would discharge all persons employed by the state whose services are not needed, or that he would prevent all unnecessary expenditures of public funds, so far as he may have power to do so, this is only a promise that, if elected, he will in those respects faithfully perform the duties of his office. In other words, it is a promise that he will not violate his official oath. But should such candidate propose to the voters and tax payers of the state, that if they will elect him to the office of governor he will serve the state therein gratuitously or for one-half of the salary allowed by the constitution, and pay the rent of an executive office and the expenses of fuel, stationery and other incidentals pertaining thereto, out of his own pocket, his proposition has an entirely different aspect. In the one case the candidate promises that if he is elected he will regard his official oath and faithfully and 'honestly discharge his official duty ; while in the. other case he proposes to buy the office with promises to pay therefor in personal services or money, or both. The one tends to economy and true reform, but the tendency of the other is to introduce into elections a most mischievous element, very nearly allied to bribery ; an element which never has been tolerated (and never can be with safety) by any free government.

But we are told that propositions similar to that of the relator are very frequently made by candidates for public offices. We have seen no case in the books, and none is within the recollection of any member of this court, before the present case was brought to our notice, where a candidate for an important judicial office has offered to donate money or official services to the public as a consideration for his election. We must be permitted, therefore, to doubt whether such transactions are of frequent occurrence. On the contrary, we think they are not sustained by an enlightened public sentiment, and that they occur very rarely.

If the course pursued by the relator should receive judicial sanction, it is more than probable that all those public offices which are deemed desirable, would, in time, become the objects of pecuniary bids or offers, and, in many cases, would be bestowed upon the highest bidders without much regard to their fitness for the positions thus purchased by them. At least such would be the inevitable tendency. The evils of such a condition are of very grave import; and we are warned by the experience and the wisdom of centuries, to avoid them. When our elections to fill public offices cease to express the free, intelligent and unbiased judgment and choice of the electors; when they shall be controlled or materially influenced by pecuniary offers made by the candidates, whether to the electors, or to the municipality (which is but the aggregation of the electors)— a most vital» condition of free government will be disregarded. The tendency might be, in such case, to banish from the public service all who will not pay for the privilege of being employed therein, and to fill it with less, scrupulous, and therefore less trustworthy and less deserving men. Elections by. the people might thus cease to express the free and unbiased judgment and will of the people, but might be controlled by mercenary considerations, either public or private, or both, and would thus speedily and justly fall into public contempt.

So far as we are advised, no judicial tribunal has given any countenance whatever to any practice or act which tends in that direction, but the courts have steadily held that popular elections must be kept free from any taint of corruption, and from all improper or unlawful influences whatever. We have no disposition to depart from this line of adjudication. On the contrary, were the opposite doctrine asserted in any of the cases, we should not follow them. We would not hold that a man may buy a public office, especially a most important and responsible judicial office, just as he would buy a horse at auction, that is, by offering to pay more for it than any other person is willing to pay. We can never give the sanction of this court to a doctrine so pernicious.

Reference should be made to the cases which have sustained the validity of bids or pecuniary offers to secure the location of public buildings at some particular place. We have no controversy with these cases here. The distinction between the election of public officers to whom, for the time being, the exercise of the functions of sovereignty is entrusted, and the mere choice of a site for a public building, is quite apparent. The former involves, or may involve, the integrity of the government and the preservation of the principles upon which it is founded; while the latter is only a matter of public convenience or pecuniary interest, involving no fundamental principle whatever.

It follows from the foregoing views, that if the defendant succeeds in showing, as he alleges in his-answer, that a number of the electors, exceeding the majority of the relator, were influenced to vote for the relator solely by reason of the offers or propositions made by him as aforesaid, the votes, obtained should be rejected, and the defendant adjudged entitled to the office.

The demurrer to the answer must therefore be overruled.

By the Court. — Demurrer overruled.