Supervisors of La Pointe v. O'Malley , 46 Wis. 35 ( 1879 )

Tayloe, J.

The appellants make three principal points against the right of the respondents to recover in the action: 1. That the complaint does not show anything due from the late treasurer to the town. 2. That there was no sufficient proof that a successor to O'Malley as treasurer had been elected in said town, who was authorized to demand and receive the town moneys in his hands. 3. That O'Malley was treasurer de facto of the town, and that as such de facto treasurer he was entitled to the possession and custody of the funds of the town, and the question as to who was the treasurer de jure could not be tried in this action. They also allege, (4) that, in any view of the case, the judgment rendered in favor of the plaintiffs was for a larger sum than the evidence showed was in his hands as treasurer.

I. The complaint sets forth three separate causes of action. The allegations in each separate cause of action, taken alone, show that O'Malley has in his hands an amount of money belonging to the town, equal to the amount found due from him by the judgment of the court. We think that this is sufficient; that, for the purposes of the trial, the allegations stated in each separate cause of action must be taken as true for the purpose of making out the cause of action in such separate statement; and that the allegation in the second separate cause of action, that the defendant treasurer received from his predecessor in office the sum of $22,753.71, cannot be held to be false, even if the allegations in the first cause of action show that there was a much less sum in the hands of his predecessor in office at the commencement of his second term. But we do not think the allegations of the first cause of action do in fact contradict this allegation in the second. The allegations in the first do not show how much of the moneys which came to the defendant treasurer’s hands during the first year of his office were spent by him in the lawful discharge of his duties during that year; they simply state that he received a gross sum, and that, during that year and the two next succeeding years, he expended a certain amount of the moneys so received by him. The whole complaint shows that the defendant treasurer held the office for three successive years, and that he was twice his own successor. There is no reason, therefore, for holding that the amount alleged to have been disbursed of the public funds received during his first term, must be held to have been disbursed during such term. The complaint does not so allege. And it is only by insisting that the disbursements stated to have been made in the first and second causes of action, were made during said terms respectively, that there is any force to the argument that the complaint does not show that the treasurer had any money in his hands unexpended. "We do not think the complaint is susceptible of the construction given to it by the counsel for the appellants; and it seems to us that the fair and 'reasonable construction is that put upon it by the counsel for the respondents, viz., that, in construing "the complaint as a whole, the amount really admitted to have been lawfully expended by the treasurer during his first term of office is the difference between the gross amount received by him during that term and the sum charged as having been received from his predecessor at the commencement of his second term, as stated in the second cause of action; and that the sum admitted to have been lawfully disbursed during his second term of office is the difference between the gross amount charged to have been received during such second term and the sum charged as having been received from his predecessor at the commencement of his third term, as stated in the third cause of aetion. This construction renders the complaint consistent with itself, and does not in fact render any of the allegations in the several causes of action inconsistent or conflicting.

II. The counsel for the appellants insist that there, is no sufficient legal evidence of the election of the successor of O’Malley, the defendant treasurer. The complaint alleges that Stahl was elected treasurer of said town at the April town meeting in 1877, and that he took the oath of office and filed his bond as required by law. The answer denies that Stahl was duly'elected as alleged, but admits that he claims to have been so elected, and that he took the oath of office and gave •his official bond, which was duly approved according to law. The answer also alleges that O’Malley was duly elected to the office of treasurer of said town at the April town meeting in 1877, by a majority of the legal votes cast at that election, and that be qualified, and has since, and at the time of the commencement of this action, exercised the duties of such office as his own successor. This action was commenced on the 18th day of June, 1877.

The evidence of the election of Stahl as treasurer in 1877 was the following: John W. Bell testified that he was the chairman of the board of supervisors of the town of La Pointe, and acted as one of the inspectors of election at the town meeting in 1877; that at the close of the polls he publicly announced, or caused to be announced, the result of the election, and that Thomas Stahl was publicly declared elected to the office of town treasurer; that a statement of the result of the election was drawn up on the records of the town, and that the record shows the number of votes cast for each individual. On his cross examination he said: “ I confidently know who was elected treasurer. The question as to who is town treasurer has never been disputed by the public.” Joseph Kiel testified that he was town clerk of the town of La Pointe, and that he was town clerk and acted as one of the inspectors of the election in April, 1877, and was present through the whole election; that after the ballots were all closed and the votes cast up, the result was publicly declared by John W. Bell, the chairman. “I recorded the result of such election in the records of the town clerk at length.” The book containing this record was then offered in evidence, and that part of it relating to the election of town treasurer was as follows: “ The whole number of votes cast for the office of town treasurer was 84, of which number Jolm O'Malley received 40, and Thomas Stahl 44. Thomas Stahl is declared elected to the office of town treasurer.” The record was signed only by Joseph Kiel, town clerk. The plaintiffs also offered in evidence a notice of which the following is a copy:

“ Office of TowN Olekk.

“ To TiioMAs Stahl: Sib — This is to notify you that at the annual town meeting held in the town of La Pointe on the 3d day of April, 1877', you were duly elected to tbe office of town treasurer of said town of La Pointe, having received a majority of the votes cast for that office. Eespectfully yours, &c.,

Joseph Eiel, Town Clerk.

“ Dated April 9, 1877.”

This was delivered to Stahl on the day it bears date. The plaintiff also offered in evidence the statement of the town clerk made to the county clerk as provided by sec. 43, ch. 15, R. S. 1858, as amended by ch. 71, Laws of 1865, showing the names of the persons elected to the several town offices at the election in 1877. This statement contained the name of Thomas Stahl as town treasurer.

O’Malley testified that he claimed to have a majority of the legal votes, and that he claimed to be legally elected treasurer of the town at the April election in 1877. On his cross examination he testified: “ I would not turn over the books and papers to anybody else, because I claim to be elected legally. I was not elected at the last town election by the tally sheets. I heard the tally sheets showed four majority against me.” This was all the evidence given on the question as to who was elected treasurer of the town in April, 1877. The defendants objected to the evidence offered to show the election of Stahl as town treasurer, generally, as incompetent. And when the notice, signed by the town clerk and directed to Stahl, notifying him of his election to the office of town treasurer, was offered in evidence, the counsel for the defendant objected to its being received, on the specific ground “ that it was not competent for the court in this action to decide who is the proper town treasurer of La Pointe.” Although upon the argument of the case in this court it was insisted that, if it was competent for the circuit court to try the question as to who was in fact elected treasurer of the town, the evidence offered by the plaintiff was incompetent and insufficient, yet the great point of contest was, that that question could not be tried; that if the former treasurer refused to deliver up the books and papers and surrender tbe office to tlie person elected as Ms successor, on the ground that he claimed to have been elected himself, no action could be maintained against him, either to compel him to deliver such books and papers, or for the recovery of the money in his hands, until the person so elected had first proceeded by quo warranto to oust him from the office.

The objection that the election of the successor of the defendant O'Malley was not. sufficiently proved, it seems to me, is without any foundation in fact. The result of the canvass of the votes cast at that election, although not proved in all respects by the formal papers directed to be made by the statute, is yet substantially proved, and is not only not questioned by the defendant O'Malley, but is admitted by him. The only formal paper which is wanting in the proofs, is the certified statement of the result signed by the inspectors; in lieu of that we have the statement of the result signed by the town clerk and recorded in the records of the town; and the evidence of Bell, the chairman, shows that this statement, though not signed by the inspectors, was authorized by them. We have the evidence that after the canvass Stahl was declared duly elected, not by the clerk, but by the chairman in the presence of the clerk. We have also the evidence that, in pursuance of the statute, the clerk notified Stahl of his election, and that he included his name as treasurer in his certificate to the county clerk of the names of the officers elected in the town for the year. This notice and certificate are both official papers, and required to be given or made by law. There was no attempt on the part of the plaintiffs to establish the election of Stahl as the successor of O'Malley, by any evidence except such as tended to prove the result as determined by a count of the votes cast. It was not sought to go behind the count of the votes, and attack or overturn that result by evidence of mistake or fraud in the count, or by attacking the legality of the votes cast at the election. The evidence tended to prove, and did prove, the fact wbicb should perhaps be regularly proved by the certified statement of the inspectors of the election; and as the proof was in no way contradicted, and the result admitted by the other claimant of the office to be such as the proof clearly established it, there does not seem to be any reason to question its sufficiency. The only rational ground for rejecting the evidence was the one taken in the court below and insisted upon here, that because the defendant denied the fact of the election of his successor, and refused to surrender the office, claiming to have been elected himself, the court had no power to hear any proof of any kind upon that subject.

I cannot think this to be the true rule. In controversies like the one at bar, and in proceedings for the delivery of books and papers pertaining to an office, some effect must be given to the result of an election as declared by the officers who are appointed to ascertain and declare in the first instance such result. Whether the duties of the canvassers appointed by law to ascertain and declare such result be ministerial only or quasi judicial, the result, as ascertained and declared, by them, must in my opinion be taken to be the true result until the contrary is made to appear. And when the result of such canvass shows the election of an individual to a particular office, and he qualifies within the time and in the manner prescribed by law, he is entitled to the office as .against every other person laying claim thereto, until the result of the election so declared is set aside by the judgment of some competent court, in a direct proceeding for that purpose. In such case, the person declared to have been elected is not required to institute a proceeding to have the judgment which has already been given in his favor confirmed by the judgment of a court, before he can enter upon the duties of the office. If it be alleged by any one that the result thus ascertained and declared is not the true result, and that there is mistake, fraud or illegality, which, when made to appear, will impeach such result, it is for tbe party charging such mistake, fraud or illegality, to initiate proceedings to avoid it on that account, and not the duty of the person declared elected to confirm it by the judgment of a court. We think it will be difficult to find any case which holds a contrary doctrine, when the result has been declared with all the formalities prescribed by law, and very few well considered cases where such result is proved satisfactorily, though not by all the formal evidence prescribed by law.

The rule, as I understand it, is this: that, as against a person holding an office by virtue of an election for a term of office which has expired, the person so holding over is estopped from denying that his successor was duly elected, when such successor shows that he was declared elected by the proper board of canvassers. ITe cannot avoid the effect of the decision of the canvassers by simply holding on to the office, and claiming that the decision of the canvassers was erroneous, or that the electors who cast the votes were not legal electors, or that fraud was practiced which when investigated would show a different result. If in such case he was a candidate for reélection, he must himself commence proceedings by qxw warranto against the party claiming the office, for the pur-pose of having the judgment of the canvassers reversed; and he cannot hold on to the office upon his mere claim that the judgment of the canvassers was erroneous. If he was not a contestant for the office, his duty is to surrender the official papers, records and moneys to the person duly declared elected, upon his having duly qualified. The law will not permit him, on the pretense of championing the losing party, to hold on to the office for his own benefit.

In McCrary’s Treatise on the American Law of Elections, sec. 204-, the author says: “ Where two or more persons claim the same office, and where a judicial investigation is required to settle the contest upon the merits, it is often necessary to determine which of the claimants shall be permitted to qualify and to exercise the functions of the office pending such investigation. If the office were to remain vacant, pending the contest, it might frequently happen that the greater part of the term would expire before it could be filled; and thus the interests of the people might suffer for the want of the services of a public officer. Besides, if the mere institution of a contest were to be deemed sufficient to prevent the swearing in of the person holding the usual credentials, it is easy to see that very great and serious injustice might be done. If this were the rule, it would only be necessary for an evil disposed person to contest the right of his successful rival, and to protract the contest as long as possible, in order to deprive the latter of his office for at least a part of the term. And this might be done by a contest having little or no merit on his side; for it would be impossible to discover, in advance of an investigation, the absence of merit. And again, if the party holding the ordinary credentials to an office could be kept out of the office by the mere institution of a contest, the organization of a legislative body, such for example as the House of Representatives of the United States, might be altogether prevented, by instituting contests against a majority of the members; or, what is more to be apprehended, the relative strength of political parties in such a body might be changed, by instituting contests against members of one or the other of such parties. These considerations have made it necessary to adopt and adhere to the rule, that the person holding the ordinary credentials shall be qualified and allowed to act pending a contest, and until a decision can be had on the merits.” Again, in sec. 221, he says: “There can be no doubt but that a certificate of election, regular in form and signed by the proper authority,'constitutes prima, facie evidence of title to the office, which can only be set aside by such proceedings for contesting the election\as the law provides;” citing Commonwealth v. Baxter, 35 Pa. St., 263; Kerr v. Trego, 47 id., 292; The State v. The Governor, 1 Dutch. (N. J.), 331; People v. Miller, 16 Mich., 56; Crowell v. Lambert, 10 Minn., 369; State v. Sherwood, 15 Minn., 221; State v. Churchill, id., 455; People v. Callaghan, 83 Ill., 128. In The People ex rel. v. Head, 25 Ill., 325, the court say: “ The decision of the canvassers affords prima facie evidence that the relator was legally elected and entitled to the office, till that canvass should be set aside by a proceeding to be instituted by the defeated candidate, in the courts of justice and in the forms of law.” This was a proceeding by mandamus, to compel the incumbent to deliver the boohs and papers. The defendant claimed that he had been elected as his own successor, the same as the defendant in this action does; but it was held that such allegation was no defense to the proceeding by mandarrms, and that, in order to avoid the effect of the certificate of election, he must proceed by quo warranto, aud in the meantime surrender the books and papers to the person declared elected. In the case of Crowell v. Lambert, supra, which was also a proceeding to compel the delivery of the -books and papers by the incumbent, who held over and refused to deliver them, claiming to have been elected his own successor, and having instituted proceedings to contest the relator’s right to the office, which were pending at the time of the commencement of the proceedings by mandam/us, the court say: “ Some points were made by the defendant which we do not deem necessary to dwell upon. On the whole it may be said that the question here is, not who will be entitled to the office on an examination into the merits of the election, but who is now entitled to the possession of the books and papers appertaining to the office. The person holding the certificate is, under the circumstances of the case, prima facie the officer, and therefore entitled to the insignia and records of the office. . . . We do not deem it necessary to point out the inconveniences, resulting in some cases in a total .denial of justice, which would follow if a party situated as the plaintiff is in this case, were compelled to await the result of tbe election contest provided for by statute, a contest which, might be prolonged until the term for which he was elected had expired.” The following cases hold the same doctrine: Hunter v. Chandler, 45 Mo., 452: Ewing v. Thompson, 43 Pa. St., 372; Ewing v. Filley, id., 384; Hadley v. The City of Albany, 33 N. Y., 603; Hulseman v. Rems, 41 Pa. St., 396; Marbury v. Marsden, 1 Cranch, 137; Allen v. McKeen, 1 Sumner, 317; Commonwealth v. Baxter, 11 Casey, 264; Ex parte Heath, 3 Hill, 42; The People v. Stevens, 5 Hill, 616. And the opinion of Judge KeNt, in a note at the end of the opinion in the case last cited, confirms the doctrine held by the above authorities.

The case of Ex parte Heath, 3 Hill, 42, which is referred to in the opinion of Judge KeNt, holds that the result of the canvass may be proved by evidence other than the certificate of the officers required to give the same, when they refuse to issue the same, and that when such proof is made, and the title to the office thereby established, such evidence is to have the same effect as the certificate issued, and the contestant cannot attach the fairness of the election except by quo war-ramto. The case of Ex parte Heath was a mandamus to compel the mayor to administer the oath of office, which he. had refused to do. The mayor refused because the returns of the ward canvassers failed to show an election. The returns of the canvassers did not declare the election of the relators. The return was as follows: “We have received returns from the several districts of said ward, etc., copies of which returns, certified by us, are hereto annexed. That it is impossible for us to declare what persons were by the greatest number of votes elected, by reason of lawless violence committed upon the. inspectors of the first district whilst in the act of counting the ballots, and the dispersion of the ballots before they were counted.” The return made showed the number of ballots cast for the respective officers in all other districts of the ward except the first district; and by counting the votes cast In the districts, except in the first district, where they were destroyed, the relators had received a majority of the votes cast. The court held, that the act requiring the ward inspectors of the city of New Tort, on the completion of the canvass, to set down in writing the names of the candidates, etc., with the number of votes for each, and to certify and declare who have the majority, is satisfied by a certificate referring to copies of district returns annexed, which exhibit the requisite matters, though the majorities be not expressly declared, and that upon such return the relators were entitled to qualify and hold the offices, unless it appeared affirmatively that the votes which were cast in the first district and not returned would change the result. This case was appealed to the court of errors, and unanimously affirmed by that court.

After the decision in The People v. Stevens, 5 Hill, 616, the relator, Hodgkinson, made application to Judge Keíít to compel the delivery of the books and papers pertaining to the office of clerk of the common council of the city of Brooklyn, to which office he claimed to have been elected by the common council. Judge IIeNt denied the application, but in his opinion in that case he says: “But it is obvious to me that the legislature never intended the judge should exercise his power to enforce the delivery of books and papers against an officer de facto, when the title of the applicant to the office is questionable. ITe must have a prima facie, title, free from reasonable doubt P This was said in a case where the applicant claimed to have been elected clerk by the common council of Brooklyn, although, upon the vote having been taken, nine votes were cast for the applicant and nine for the person claiming to hold the office, and the mayor had declared that there was no election. The ground of the claim made by the applicant was, that one of the persons voting for his opponent was not duly elected an alderman, and that his vote was cast for his opponent. It was an attempt on his part to attack the right of an alderman to his seat in the board, in a proceeding to which he was not a party; and it was undoubtedly rightly held that he could not do so in that proceeding.

In the case of The State ex rel. McDill v. The Board of State Canvassers, 36 Wis., 498, it was held that a mandamus will issue to the board of canvassers to compel them to declare the person elected to an office, when the legal returns of the votes cast at such election show his election, notwithstanding the board of canvassers may have declared another person so elected. This decision goes upon the theory that the board of canvassers have no duty to perform except to compute, from the lawful returns made by the canvassers of the several voting districts, the number of votes cast for the several persons contesting for the office, and to declare that person elected who has received the greatest number of votes; anda declaration by such board that a person who has not received the greatest number of votes cast, as ascertained by such returns, is elected to the office, will be disregarded by this court, and the board be compelled to declare the party receiving the greatest number, so ascertained, elected,' and, if the law so direct, to issue a certificate of election to such party; but the court will not go behind the returns to investigate frauds and mistakes, and adjudge which candidate was in fact elected. It seems to me that the] decision in this case would he of no practical importance to the contestant for an office, if the declaration and certificate of election, made by the proper board of canvassers, did not give him a prima facie right to the office, and compel his contestant to initiate proceedings to determine the ultimate right to the office, if he claimed the same notwithstanding the returns made by the canvassing boards showed that he was not so elected.

We think there can be no question that, as between persons who are candidates for the same office, the one who receives the greatest number of votes as shown by the canvass made by the proper officers, and who is declared by such board elected, if he qualifies according to law, is prima facie the officer de jure, and that every other person who assumes to exercise the duties of such office by holding over after the expiration of a former term of office, must be treated as a mere intruder or usurper, in any proceeding against him to compel him to deliver up the books and papers pertaining thereto, or to recover from him moneys or other property in his hands which has come to his possession by virtue of his office, and which by law he is required to deliver over to his successor in office. If .there was fraud, illegality or mistake in the election or in the canvass, which, when made to appear, would show a different result, and that the former incumbent of the office was in fact elected his own successor, the only remedy of such claimant, as against the person declared to be elected and claiming the office, is to commence proceedings on his part by quo war-ranto, to determine the question as to who was in fact elected to such office, or, if the certificate of election be given contrary to the result as ascertained by the legal returns of votes, by mandamus to compel the canvassers to give him the certificate of election. Any other rule, as against persons in office and claiming to be elected their own successors, would be most unjust and highly prejudicial to the public welfare, and would place every person contesting for an office against the party then holding the same, at a great disadvantage. If a candidate for an office, contesting against the person holding the same, must not only beat his contestant at the polls, but must afterwards, and before he can be permitted to discharge the duties of his office and receive the emoluments thereof, contest his right again in the courts upon the mere claim of his contestant that the canvass does not show the true result of the election, such official candidate will have a most unjust advantage in the contest for office, and one which ought not to receive the judicial sanction.

The plaintiffs in this action have very clearly shown that O'Malley, the defendant treasurer, was not elected his own successor, as appears from the canvass of the votes cast at the election in April, 1877, and that Thomas Stahl was elected such successor. This fact is not contradicted by the defendants. His successor, so elected, having duly qualified according to law, it became the duty of the outgoing treasurer to pay over to such successor the moneys in his hands belonging to the town.

III. There is no force in the claim that O'Malley was treasurer de facto ¿ if not de jure. He had no color of title to the office, either by election or appointment. If he had any color of title, it was only such color of title as was given to him by the fact that he refused, for a few days after his term expired, to deliver up the books and papers, and during that time may have performed some duties pertaining to the office. If, by refusing to surrender the office, he became treasurer de facto, then he became so by the mere act of refusal, and such refusal for one day would make him the de facto treasurer as much as a continued refusal for a week or two weeks. And if a refusal to deliver the possession for a day, or a week, or two weeks, constitutes him treasurer de faeto, so as to compel the party declared elected to proceed by quo warrcmto to oust him before any action can be had to compel him to deliver the books, papers and moneys belonging to such office, then the whole effect and force of a certificate of election would be avoided, unless the person elected should commence proceedings immediately to recover such books, papers or money. It is unnecessary to decide what force there would be in the claim that a treasurer holding over was treasurer de facto, if the person elected, or the town authorities, had neglected, for a considerable portion of the term for which the new treasurer had been elected, to take any proceedings to recover the moneys in the hands of the treasurer holding over, and during all that time he had continued to act as treasurer in fact. In this case there was no unreasonable delay on the part of the newly elected treasurer, or on the part of the officers of the town, in protesting against the right of the holding over treasurer to exercise tbe functions of tbe office. It cannot be said that bolding tbe office for some length of time, and performing its functions unquestioned, was in itself color of title to tbe same, as tbe evidence shows that there was no such holding of tbe office by tbe defendant O'Malley in this case. On tbe other hand, tbe evidence shows that bis right was questioned immediately after tbe election, and as soon as tbe newly elected treasurer was qualified, and this action to recover the money in bis bands as late treasurer was commenced without any unreasonable delay. The fact that tbe acts of tbe treasurer bolding over might be good as to third persons and tbe public, so long as be refused to surrender tbe office and continued to perform tbe official duties thereof, furnishes no good reason for bolding that be cannot be proceeded against in an action on his bond to recover tbe moneys in bis bands which by law be ought to pay over to bis successor in office.

It is further urged, that until some other person claimed to exercise tbe functions of treasurer of tbe town, the defendant O'Malley was bound to retain the boobs, papers and money in bis bands; that be could not commence proceedings by quo warranto to determine bis right to such office, until some other person claimed tbe office, against whom he could proceed, and therefore be was justified in retaining tbe same until such other claimant appeared.

We think that the taking and filing of the oath of office and bis official bond by tbe person declared to have been elected treasurer, and bis demand of tbe late treasurer, of tbe books, papers and moneys in bis bands, was such an intrusion and usurpation of tbe office, if he was not in fact elected, as would have justified and sustained proceedings against him by tbe hostile claimant by quo warranto. This was so expressly decided in People v. Callaghan, 83 Ill., 128, and we have no doubt of tbe correctness of such decision.

IY. The only other question is, whether tbe judgment is correct as to the amount of moneys found in tbe hands of tbe defendant treasurer. After a careful examination of tlie evidence upon tbis question, we think the court erred in finding that the defendant had received from the county treasurer the sum of $1,835.11 belonging to the school district of La Pointe. The evidence shows that the county treasurer was unable to produce any receipt of the treasurer O’Malley, showing that he ever received this sum. The county treasurer swears that he had a receijit for it, and that it was paid by him to O’Malley on the 17th of October, 1873. He also swears that he paid him the sum of $2,000, on the same day on which he claims to have paid the sum of $1,835.11, and for the $2,000 a receipt was shown in court. O’Malley swears that he never received the sum of $1,835.11, and that George Stahl, who was the county treasurer, and as such claims to have paid him that sum on account of moneys belonging to “the school district of La Pointe,” was at the same time treasurer of such school district; and he claims that, instead of paying it to him as town treasurer, he paid it to himself as treasurer of said school district. In view of the facts that there is no evidence of the payment of this sum to treasurer O’Malley, other than the unsupported evidence of the county treasurer, Stahl; that no receipt for the same is produced; whilst a receipt for the sum of $2,000, paid on the same day this sum is alleged'to have been paid, is produced in evidence; that the report of the county treasurer, Stahl, made November 11,1873, does not state that this sum was paid to the town of La Pointe, or to the treasurer thereof, but that it was paid on the 17 th of October, 1873, to “the school distinct of La Pointe; ” that the town treasurer, O’Malley, claims in his account no credit for moneys paid to such school district after the alleged payment to him October 17, 1873, of any part of said sum; and the absence of any proof on the part of the plaintiff that the school district had not received the said sum of $1,835.11 — we are clearly of the opinion that the evidence is wholly insufficient to charge the defendant O’Malley with the receipt of that sum. With the exception of this sum of $1,835.11, the evidence fully sustains the finding of the court below.

OetoN, J.

While admitting the correctness of the legal propositions upon which the majority of the court has decided this case, I regret that I cannot coincide with the opinion that the case upon the record is brought within these conceded legal principles, or sustained by a single authority cited in the opinion.

O'Malley had, for three successive years, held the office of town treasurer, and in the spring of 1877 was a candidate for a reélection. By the legal tenure of his office, he was to hold and administer it until his successor should be duly elected and qualified. The respondents claim that, in the spring of 1877, one Stahl was duly elected as the successor of said 'O'Malley, and, having qualified, he demanded the property and money belonging to said office, of O'Malley, who denied his election and claim to said office, and refused to deliver to him said property and money. Suit is brought upon the official bond of O'Malley, upon this breach of its conditions, and by the pleadings the legal right of Stahl to the office is put in issue.

O'Malley, by holding over his legal term to await the election and qualification of his successor, is in the fullest sense treasurer de faeto, and in no sense an intruder, and, before delivering over to any one the property and moneys of his office, had a right, and it was his duty, to demand of any person claiming the office, the evidence of his election and qualification. I admit that in such a case as this the full right to the office de jwe cannot be determined, and agree with the opinion that only a presumptive or prima faoie legal right to the office need be shown by the person so demanding the property and moneys belonging to it, and in the hands of his predecessor; and also agree with the opinion, that in this case it was necessary and incumbent upon the respondents to prove by proper evidence that Stahl had such jprima facie right.

All the authorities cited in the opinion hold that such prima, faeie right to an office must consist of the proper certificate of election required by law to be given, or of the canvass or statement of the votes and determination of the result by the proper officers of the election, as required by law.

One case holds, that in case such a canvass or statement and determination have been duly made, and the proper officers have failed to mate out the proper certificate of election based thereon, proof of such canvass or statement and determination of the result, as required by law, will be sufficient prima evidence of the legal right to the office.

But no case is cited, and I do not believe one can be found, holding that any evidence less than either the proper certificate of election, or the canvass or statement of the votes and determination of the result by the proper election officers, as required by law, is prima facie evidence of such right.

Our statute does not provide for certificates of election to town offices; but it does provide particularly, that “at the close of every election, the votes given by ballot shall be publicly canvassed by the inspectors,” that “ the canvass being completed, and the result ascertained and determined by the inspectors, the clerk shall publicly read to the meeting the names, etc., and the names of the persons declared to be duly elected by the inspectors to each office respectively; and such reading shall be deemed sufficient notice to every person elected to any office at such meeting, of his election; ” that “ the inspectors shall also draw tip a statement in writing, setting forth in words at full length, etc., etc., and certify upon such statement their determination of the persons elected, which statement and certificate of determination shall be left with the town clerk and recorded in his office.” Not a single one of these provisions was complied with in this case.

No canvass, statement or determination or certificate was ever made by tbe inspectors, and of course none was or could he either publicly read or recorded by the clerk as the statute requires. It is in evidence that the clerle, never made any public announcement of the result, but one was informally and orally made by one of the inspectors, and the clerk entered upon his records and signed a statement made by himself.

No writing was made or recorded, and no result ascertained or determined, and no paper read or announcement made, as required by law.

Such being the case, how is it possible to find any prima facie evidence of the legal right of Stahl to the office, when not a single thing was done, or exists of record, which the statute requires, and which could possibly constitute such evidence. It is very easy to say that something which the statute does not require or sanction, was done, and by some other person, and which will answer as a sufficient substitute, and by which proof of a prima facie right to an office may be made; but it is hardly fair or logical to cite authorities which require the very evidence which is entirely wanting in this case to sustain such a proposition.

If this decision affected this case alone, it would only have the importance and consequence commensurate with the individual interests of the parties, and would be comparatively of little moment; but as a precedent by which all future cases of like character and of the same insufficient evidence, or the same absence of all legal evidence, are to be determined, such a'decision should be supported by analogous cases and decisions of other courts, or rest upon unquestionable principle.

In support of my opinion, most reluctantly formed, and thus rather crudely expressed, dissenting from my learned associates, I refer with confidence to the authorities cited in the opinion of the court, as abundantly sufficient.

By the Court. — So much of the judgment of the circuit court as awards execution in favor of the plaintiffs for the sum of $10,615.78 damages, is reversed, with costs, and the cause is remanded with directions to the circuit court to award execution in favor of the plaintiffs for the sum of $8,780.67, with .interest from the 3d day of October, 1877.

[Note. Por the information, especially, of persons consulting these reports who are not residents of this state, those provisions of our statutes relating to the election of town officers in force in April, 1877, which seem to hear upon the principal question determined in the foregoing case, are inserted here. These provisions are found on pages 853-361 of Taylor’s Statutes, being part of ch. 15, “ Of Towns and Town Officers,” etc. Sec. 28 provides that at the annual town meeting there shall be elected, among other town officers, three supervisors, one of whom shall be designated on the ballots as chairman, one as town clerk, and one as treasurer. Sec. 43 provides that “ the chairman of the supervisors in each town shall be the chairman .of the town meetings,” with a provision for filling the vacancy in case of his absence. Sec. 44 provides that “the supervisors of each town shall be the board of inspectors of the election at the town meetings thereof,” with a provision for filling any vacancy in such board. Sec. 49 provides that all town officers shall be chosen by ballot, with some exceptions not important here. Sec. 57 declares that “the chairman of each town meeting shall regulate its proceedings, and decide all questions of order arising at such meeting, and shall make public declaration of all votes passed.” Sec. 60 declares that ‘1 at the close of every election, the votes given by ballot shall be publicly canvassed by the inspectors, at the place where the meeting was held.” Sec. 61 requires that “before the ballots are opened, they shall be counted and compared with the number of names of voters on the poll list;” provides what shall be done in case two or more ballots shall be found folded together, and in case the number of ballots shall be found to exceed that of names on the poll list; and adds: “ The number of ballots and the number of names on the poll list agreeing, or being made to agree, the board shall then proceed to canvass and estimate the votes.” Secs. 62 and 63 are as follows: “ Sec. 62. The canvass being completed, and the result ascertained and determined by the inspectors, the clerk shall publicly read to the meeting the names of the person for whom votes for each office were given, and the number of votes so given to each person, and the names of the persons declared to be duly elected, by the inspectors, to each office respectively; and such reading shall he deemed sufficient notice to every person elected to any office at such meeting, of his election, -whose name has been entered on the poll list as a voter. RyaN, O. J., toot no part.

A motion by the appellants for a rehearing was denied.

“ Sec. 63. The inspectors shall draw up a statement in writing, setting forth, in words at full length, the whole number of votes given for each office, the names of the persons for whom such votes were given, and the number of votes given to each person; and certify upon such statement then- determination of the persons elected; which statement and certificate of determination shall be left with the town clerk, and recorded in his office.” Sec. 64 provides that “ the persons having- received the greatest number of votes given for any office at such election, shall be deemed and declared duly elected.” Sec. 65 makes it the duty of the town clerk, within ten days after the election, to transmit to the clerk of the board of supervisors of the county a certified statement of all officers elected in his town. Rep.]