
    The State of Wisconsin ex rel. Ezra L. Varney vs. William W. Wyman.
    A County Treasurer elected under the provisions of the Territorial laws of Wisconsin, oould hold his office only during the time prescribed by them. The adoption of the constitution did not repeal, qualify, of annul any of the Territorial laws relating to that office.
    The act of the Legislature of the Slate, which went into effect on the first day of May, 1849, relating to officers under the constitution, and amongst such, County Treasurers, was in operative force ' at the time of the relator’s election, and under it, he, by his election, became rightfully the Treasurer under. the constitution and • laws of the State.
    This was an information in the nature of a quo warranto, by the relator Yarney, to possess himself of the office of Treasurer 'of the County of .Dane, together with the ■books, papers, and appendages thereof, as against the respondent Wyman. It appeared by the papers, that the relator was elected Treasurer of the County at the election in the year 1849. It also appeared that the respondent was elected at the general election in 1848 to the same office, and qualified according to law. That the relator, after his election in 1849, took the oath of office, 'but that the respondent refused to invest the relator with the books and papers belonging to the office, or to give place to him as Treasurer, on the ground that at the time of the election of the relator, there was no law in force authorizing the election of Treasurer.
    The opinion of the Court clearly exhibits the basis of the decision.
    
      sibbott & Cothren, for relator.
    
      
      Collins & Clark, for respondent.
   By the Court.

Whiton, J.

The object of this proceeding is to obtain possession of the pffice of Treasurer of Dane County. The relator claims the office by virtue of an election, and it is admitted that he was duly elected to the office at the general election, held oh. Tuesday, succeeding the first Monday in November 1849, if by the laws then in force, a lawful election of County Treasurer, could take place. It is further admitted that the relator took the proper oath, and executed the bond required by law, within the time prescribed by Sec, 138 of Chapt. 10., of the Revised Statutes, and further that he demanded possession of the books and papers belonging to the office, before commencing this proceeding.

The claim of the relator is resisted by the respondent, who was elected to the office at the general election in 1848, on the ground that there was no law in force, authorizing an election of County Treasurers, at the time when the relator claims to have been elected.

Various acts of the Legislature of the Territory and State of Wisconsin, and the Constitution of the State, were referred to in the argument, all of which I will notice. The act of the Legislature of the Territory, which took effect in July 1839, (Stat. Wis. Ter.,'page 97,) provided for the election of County Treasurers annually. The same act prescribed their powers and duties, and fixed their compensation. The next act bearing upon the subject was passed by the Legislature of the Territory in 1841. This act does not alter the act of 1839, except to provide that the term of service of the County treasurers, when in office, should expire on the first. Monday of January, then next, and that the term of service of those afterwards to be elected, should commence on the first Monday in January, in each year'. (Session Laws, 1841, page 33.) The next is an act passed in 1841, in relation to township and county government. This act only applied to. those counties which adopted it, and like the act of 1839, provided for the annual election of County Treasurers. (Town Act, page 72.) The next act bearing upon the. subject, was passed in 1842. (Session Laws, 1842, page 43.) This act merely declares the County Officers elected at the preceding general election, to be in office from the first Monday in January, 1842, and provides that the tenure of office of those officers elected, or to be elected, in pursuance of the provisions of the act in relation to township and county government, should not be affected by it. These are all the acts of the Legislature of the Territory, bearing upon the subject, which I have been able to find; and, taken together, they provide for the election of County Treasurers, annually, and for their going into office on the first Monday of January in each year. They prescribe the powers and duties of those officers, and fix their compensation. By virtue of their provisions, County Treasurers were elected, and held their offices until the constitution of the State was adopted in 1848.

That instrument contains a provision upon the subject of County Officers, which in connection with subsequent acts of the Legislature, the respondent contends, renders the election of the relator illegal. The clause of the constitution referred to, is the 7th section of the schedule, and is as follows. “ All county, precinct and town-fhip officers, shall continue to hold their respective offices, unless removed by the competent authority, until’the Legislature shall in conformity'with the previsions of this constitution, provide for the holding of elections, to fill isuch offices, respectively.” The counsel for the respondent contended, in’ the argument of the case, that this provision had the effect to repeal the acts of the Legislature of the Territory, upon the subject of County Treasurers, -or at least to create a'new tenure for the office. I am 'clearly of opinion that it cannot have the effect to repeal 'the acts of the Legislature in question.

•The State Constitution repealed none of the laws of the ‘Territory, except 'such as were repugnant'to it, and this '•clause of the Constitution,’and the acts of the Legislature referred’to,' "may' well stand together; the'latter •modified only so far as the term of service of those who ¡held the offices vat the time when the constitution was •adopted, were concerned. To admit that the constitution repealed those acts,' would be to hold that after the adoption of .the former, there was no law in existence, which defined the powers with' which these officers were '•clothed, or the dalias which they were to discharge, and I cannot think that by any-iust rule of construction, such an effect can be given .to-it. Nor do I think thafa new tenure was created for'these offices.

The provision in the Constitution applies' only to those officers who were in office at the time of its adoption, and does not establish any tenure for those who were af-terwards elected. Those then in office ‘were to hold their offices until the Legislature made provision for filling theta by election; but'in no other respect did the constitution interfere with the tenure of these offices, as established by the previous acts of the Legislature. It may Well be imagined that the framers of the Constitution, supposed that when the Legislature .provided for filling these offices by election, they would also specify the term the incumbents were to serve. If this had been done, no difficulty would have arisen, but it was .omitted. The provision for filling these offices was made by an act passed at the first Session of the Legislature after the Constitution was adopted; by virtue of it the respondent was elected; and if the laws of the territory in relation to the office were not repealed, nor the tenure of the office changed by the Constitution, except so far as those persons were concerned, who filled the offices when the Constitution went into- effect, it follows that he was elected for the term as fixed, by the laws .of the Territory, which wc have seen was one year only.

There remains but one other subject of enquiry; and that is, whether any law' was in existence at the time the relator claims to have been elected, by which his election, was .authorized. There can be no doubt on the subject.. The,Legislature passed, an act which went into effect on the first day of May, 1849, which provides, that there shall be chosen at the general election in each year, so many of the officers named in the act “ as are by law, to he elected in such year,” and which names County Treasurers are among the number. (Rev. Stat. Chapt. 6, 8ec, 3.)

Now, if the respondent was. elected for .one year, the election of his successor was proper.and necessary, at the general election in 1849. It can make no difference that, the Legislature passed an. act .which took effect on the, first day of May, 1849, providing that County Treasurers shall hold their offices for. two years, as.this provision was, clearly intended, to apply only to those ejected after the law went into effect. Nor can Sec. 85 of chapter 6, of the Revised Statutes* which was referred to in the argument for the respondent, at all affect the question. That provides for the election of all county officers whose election is not otherwise specially provided for at the general election in 1850, and at the general election in every second year afterwards. Now, if the view I have taken of the subject is correct, the election of County Treasurers was provided for at the general election in 1840, by Sec. 3 of chapter 6, of the Revised Statutes, which went into effect on the first day of May, 1849, and as the Legislature have provided by an act, which also went into effect on the first day of May, 1849, that -County Treasurers shall hold their offices for two years, it follows that no election of County Treasurers can take place until the year 1851, except for the purpose of filling vacancies. It necessarily follows, from the view -I have taken of the subject, that the relator was rightfully elected, for the term fixed by law, at the time 'of his election, which is two years.

The Chief Justice dissented from the decision of the Court and gave 'his reasons as follows:

The 'Chief -Justice.

It is always with timidity and regret that I dissent from the opinion of the majority of this Court; and it is particularly embarrassing to do so, alone» But as I have not been able to come to the same conclusion at which my brethren have arrived, and as the principle involved in this case is one of great public importance, though the particular question is not likely to arise again, I think it my duty to put my dissent, and the reasons of it, in a few words, on record. Premising that this is one of those cases, where a little common sense-, and a little political knowledge, are worth a deal of legal learning.

I agree with my brethren that the law of 1841, if not repealed, authorized the' election of the relator; I agree that that law was continued in force by the second sec-* tion of the constitutional schedule: I go even farther; I hold it would have remained in force, until repealed, had there been no constitutional provision on the subject; for I do not assent, at all, to the new nullifying doctrine, that the ordinary municipal laws of a country are abolished by a mere change of government — even revolution, or conquest, works no such sweeping destruction, And I admit, that the act of 1841, was not, in terms, repealed at the time of the last general election. But with all this, I cannot recognize the relator’s right to the office he seeks.

The act of 1841, I am inclined to think, was repealed, in effect, by that of 1848, providing for the election of county officers: but whether it was, or not, I have no doubt that it was so repealed, and intended to be repealed, by the provisions of the Revised Statutes,

Among the canons for construing Statutes, this one has always been admitted: That you are to look into the reason, the occasion, and the intention of the law. The rule is an old one — certainly as old as Plowdon, (Zauch vs. Stowell,) and probably as old as Deuteronomy. And this rule is particularly to be observed in reference to general public laws which regard the policy of the State, and do ilot involve any particular private right. Governed by this rule, I cannot but consider the territorial act of 1841, as repealed by the Revised Statutes. We know — it is known to all, and acknowledged by all — that the Legislature intended to separate the election of county, from that of state officers: That, while both w.ere to be elected at general annual elections, they should severally be elected in different and alternate years. A most commendable purpose; and one whióh: was demanded, alike by public policy and political morality. Our people had seen and felt here, and in the older States whence they had emigrated, the mischiefs and vice of mixing up their Ipcal affairs with/general politics; and they wished, as far as practicable, to correct the evil. The Legislature, a more correct exponent in this case than usual of the popular will, intended to do, and I believe did, what it-thought would be most effectual for this purpose, by providing, (Sec. 85. R. S. p. 76;) that, “ all county officers authorized by law .to be elected in any county now organized in this State, shall, unless otherwise specially provided, be chosen at the general election in the year 1850, and at the general election in every second year thereaiter” — being different years from that provided by the Constitution- for the election of the State Officers and Members of. Congress.,

It is contended, however, and-, such seems to be the the opinion .of the Court, that the election of County Treasurers' was specially provided for by the act of 1841; and which act, it is acknowledged, had not been in terms repealed last fall. But with what propriety can it be said that this old Territorial Law made special provision for the election of the County Treasurers of the State ? Can this be the sense in which the Legislature used the word “special!” • If so, I know of hardly anything in our Statutes which is not special — there is nothing general. But look again at ,the purpose of the Legislature. It was to be separate county, interests, or if you.please, county politics, from State politics: and it would be strange, indeed, if the Legislature had left that county office, which should be, of all others, except that of a Judge, the farthest removed from party politics, to be trafficked for and gambled for at a State Election. The supposition assumes that the Legislature must have been unaccountably heedless, disgracefully stupid, or wilfully dishonest: neither of which am I willing,®for a moment, to admit. I have no doubt, as the Constitution had made the State Officers elective the odd years, that the Legislature intended that the Treasurers, in common with other.county officers, should be elected the even ones; and I have as little doubt that it made the necessary provision for that purpose by the 85th Sec., p. 76, of the . Revised Statutes. Yet I can readily understand how legal refinement and research may well enough lead to a different conclusion.

I fully concur with my brethren, that the County Treasurers, legally elected, whether the last Fall, or the next, hold their offices for two years.

Judgment for the Relator.  