State ex rel. Schroeder v. Feuerstein

Wisconsin Supreme Court

State ex rel. Schroeder v. Feuerstein

150 N.W. 486, 159 Wis. 356, 1915 Wisc. LEXIS 20

DecidedJanuary 12, 1915

StatusPublished

This text of 150 N.W. 486 (State ex rel. Schroeder v. Feuerstein) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Schroeder v. Feuerstein, 150 N.W. 486, 159 Wis. 356, 1915 Wisc. LEXIS 20 (Wis. 1915).

Pincite

Opinion

Viwje, J.

Sec. 3466, Stats.. 1913, provides that a private person may in the name of the state bring an action of quo icarranto without leave of the attorney general when the office usurped pertains to a county, town, city, village, or school district. Complainant, therefore, is competent to maintain the action.

It is urged the complaint is defective because it does not allege the number of legal votes- cast nor does it state in what respect the certificate of election of the defendant was improperly or illegally issued, as required by sec. 3468, Stats. 1913. The statement in the complaint that the electors of the district cast 602 votes, of which the defendant received 301, must upon demurrer be construed equivalent to an allegation that 602 legal votes were cast and that the defendant received 301 legal votes. The complaint, therefore, sufficiently shows in what respect defendant’s election was illegally declared, for sub. (3), sec. 430, Stats. 1913, requires a majority to elect. It shows' that defendant was declared elected upon less than a majority of the votes and for that reason he was not lawfully elected.

This brings us to the crucial question of the case, and that [360]*360is, Does defendant lawfully hold over? Sec. 431, Stats. 1913, provides that school officers shall “hold their respective offices for three years and until their successors have been elected or appointed, hut not beyond ten days beyond the expiration of their term of office without again being elected or appointed.” Under the language of the above section is the term of office of a school officer “three years” or is it “three years and until their successors have been elected or appointed?” Clearly they cannot lawfully hold office more than ten days beyond their term. If the clerk’s term of office was “three years,” then he was unlawfully intruding into the office, for more than ten days had elapsed since his term expired. On the other hand, if his term of office was “three years and until his successor had been elected or appointed,” then the complaint shows he is lawfully holding over, for it negatives an election or appointment of a successor to him. It mnst be confessed the language of the statute is not very clear and is susceptible of either construction. But in view of other statutory provisions relating to school officers we have reached the conclusion that the term of office of a clerk or director does not expire till his successor has been elected or appointed. The treasurer holds his office till his successor shall be elected or appointed and qualified. Sec. 443, Stats. 1913. A person elected to a school office has ten days within which to notify the clerk that he will not serve (sec. 431), and one appointed has five days in which to notify the clerk (sec. 433). No provision for a vacancy is made in case of a failure to elect, though provisions are made for other contingencies. See sec. 433a. In view of these statutory provisions it seems to have been .the legislative intent that a clerk once duly elected should hold office till his successor is elected or appointed and for a period of ten days thereafter if his successor does not qualify within that time, but no longer without a re-election or re-appointment. This construction is in consonance with the provisions of sec. 443 relating to the treas[361]*361urer and prevents a vacancy in case of a failure to elect. It is also in harmony with the general rule that an officer hold his office till his successor is elected or appointed and qualifies. The reason for such a rule is that there may always be an incumbent to discharge the duties of the office.

Since the complaint shows that there ivas no lawful election of a successor to the defendant at the annual school meeting in 1913, he holds over by force of statute, and the demurrer was properly sustained.

By the Court. — Order affirmed.

Winslow, C. J., dissents.

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Viwje, J.

Sec. 3466, Stats.. 1913, provides that a private person may in the name of the state bring an action of quo icarranto without leave of the attorney general when the office usurped pertains to a county, town, city, village, or school district. Complainant, therefore, is competent to maintain the action.

It is urged the complaint is defective because it does not allege the number of legal votes- cast nor does it state in what respect the certificate of election of the defendant was improperly or illegally issued, as required by sec. 3468, Stats. 1913. The statement in the complaint that the electors of the district cast 602 votes, of which the defendant received 301, must upon demurrer be construed equivalent to an allegation that 602 legal votes were cast and that the defendant received 301 legal votes. The complaint, therefore, sufficiently shows in what respect defendant’s election was illegally declared, for sub. (3), sec. 430, Stats. 1913, requires a majority to elect. It shows' that defendant was declared elected upon less than a majority of the votes and for that reason he was not lawfully elected.

This brings us to the crucial question of the case, and that [360]*360is, Does defendant lawfully hold over? Sec. 431, Stats. 1913, provides that school officers shall “hold their respective offices for three years and until their successors have been elected or appointed, hut not beyond ten days beyond the expiration of their term of office without again being elected or appointed.” Under the language of the above section is the term of office of a school officer “three years” or is it “three years and until their successors have been elected or appointed?” Clearly they cannot lawfully hold office more than ten days beyond their term. If the clerk’s term of office was “three years,” then he was unlawfully intruding into the office, for more than ten days had elapsed since his term expired. On the other hand, if his term of office was “three years and until his successor had been elected or appointed,” then the complaint shows he is lawfully holding over, for it negatives an election or appointment of a successor to him. It mnst be confessed the language of the statute is not very clear and is susceptible of either construction. But in view of other statutory provisions relating to school officers we have reached the conclusion that the term of office of a clerk or director does not expire till his successor has been elected or appointed. The treasurer holds his office till his successor shall be elected or appointed and qualified. Sec. 443, Stats. 1913. A person elected to a school office has ten days within which to notify the clerk that he will not serve (sec. 431), and one appointed has five days in which to notify the clerk (sec. 433). No provision for a vacancy is made in case of a failure to elect, though provisions are made for other contingencies. See sec. 433a. In view of these statutory provisions it seems to have been .the legislative intent that a clerk once duly elected should hold office till his successor is elected or appointed and for a period of ten days thereafter if his successor does not qualify within that time, but no longer without a re-election or re-appointment. This construction is in consonance with the provisions of sec. 443 relating to the treas[361]*361urer and prevents a vacancy in case of a failure to elect. It is also in harmony with the general rule that an officer hold his office till his successor is elected or appointed and qualifies. The reason for such a rule is that there may always be an incumbent to discharge the duties of the office.

Since the complaint shows that there ivas no lawful election of a successor to the defendant at the annual school meeting in 1913, he holds over by force of statute, and the demurrer was properly sustained.

By the Court. — Order affirmed.

Winslow, C. J., dissents.

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150 N.W. 486, 159 Wis. 356, 1915 Wisc. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-schroeder-v-feuerstein-wis-1915.