State ex rel. Baxter v. Beckley , 192 Wis. 367 ( 1927 )

Eschweiler, J.

The grounds relied upon and set forth in the heading to all the papers constituting the recall petition recited two specific actions of said Baxter at a meeting of the common council on June 15, 1926. Each of the papers making up said petition contained appropriate spaces for the following items printed thereon, namely: “Name of elector; Place of residence (number, street); P. O. address; Date of signing.”

That a number of the signatures could not properly be counted is conceded and they are not here considered.

It is conceded that the petition was insufficient to meet the státutory requirement if one of the objections thereto, and which was sustained by the circuit Court in reversing the findings of the county judge, was good. This objection was to 160 or more signatures showing no year on date of signing such respective signatures and where no year appears as part of the other signatures on such respective sheets, and in any manner adopted as such by the signers.

The city recall law here involved was created by ch. 635 of the Laws of 1911 (sec. 94/ — I, Stats.), and provided that the city clerk was to pass upon the sufficiency of the petition. By ch. 583 of the Laws of 1915 the county judge was substituted for the city clerk.

The provision now appearing as sub. (5), sec. 5.26, though in the statute regulating the making of nominations, is and has been made applicable to such petitions for recall. It requires that each voter so signing “shall add his residence, postoffice address and the date of signing.” To be effective such recall petition must also be verified as to each separate paper, sub. (3), sec. 5.26, by one having personal acquaintance with such persons, and to the effect that such signers are electors and that “their residence, postoffice address and date of signing are truly stated therein.”

In the recall election law itself, sub. (2), sec. 10.44, provides that “no signature shall be valid or be counted unless its date is less than one month preceding the date of such filing.”

That the phrase “the date,” as it is here used, means not only the day and the month but the year also, is beyond question. 17 Corp. Jur. 1130; Words and Phrases (2d ser.) 1204; Cole v. Board of Supervisors, 27 Cal. App. 528, 150 Pac. 784.

Appellant cites no authority to the contrary, but argues in effect that it must be assumed that the year was 1926 because on the face of the petition to which the signatures were added are recited, as the grounds for the recall, two certain actions of the relator as mayor on June 15, 1926, and that the petition being filed with the county judge on July 30, 1926, the signatures must have been between the earlier and the later of these two dates and of course in 1926.

While, as appellant stresses, by sub. (6), sec. 5.01, Stats., the legislative purpose is declared to be that the provisions of the election laws shall be construed so as to give effect to the will of the electors if that can be ascertained from the proceedings notwithstanding informality or failure to comply with some of its provisions, yet we are dealing here with a special election matter in which the rights of one theretofore duly elected to public office as well as the rights of the general public are concerned. Nor are we at liberty to disregard positive language of the statute as to what shall appear on the face of such a petition before the machinery to provide for a special recall election shall be set in motion.

From the provisions of the statute above cited it is evident that the date of signing as well as the place of his residence and postoffice address is to be added by the voter. The law makes no distinction as to the relative importance of pr necessity for these three specific requirements and we cannot. Harris v. King, 21 S. Dak. 47, 109 N. W. 644. If the omission of the date can be overlooked, equally well could be either the provision as to the residence or as to the postoffice address. It is also evident that each signature is to be regarded as a separate and independent unit and by itself and cannot be added to or have necessary elements supplied from or by that which may be done in the same petition by others, — intending by this, of course, to in no wise question the validity of such signer making as his own, by appropriate ditto marks or common abbreviation, that which may appear above his signature and as' a part of the same paper. State ex rel. Dithmar v. Bunnell, 131 Wis. 198, 202, 110 N. W. 177.

Neither could we with safety indulge in a presumption suggested by appellant as to the signatures having been made between June 15, 1926, necessarily the first date at which signatures could be attached, and July 30, 1926, when the petition was filed and necessarily 'the last date on which signatures could be attached, because of the imperative direction that the signatures must be all written within the thirty days preceding the filing (sub. (2), sec. 10.44, supra), and more than such period existed between such two dates.

No decisions from other courts are cited or found that are helpful in this, inasmuch as differently worded statutes are there involved.

We come to the conclusion, therefore, that the trial court was right in holding that the year is an essential part of the required date to be added to his signature by each of the voters joining in such a recall petition.

Appellant further urges that the statutory designation, sub. (3), sec. 10.44, that “the county judge shall determine by careful examination the sufficiency or insufficiency of such petition and state his finding in a certificate attached thereto,” makes the certificate of such county judge final, conclusive, and not subject to examination or review by the courts. There is no express provision in the statutes directing or authorizing a judicial review of such determination and certificate. Neither is there any express prohibition of such. We see no reason, therefore, why the determination by the county judge should not be subject to judicial scrutiny to determine whether or not he has in effect found jurisdictional essentials as being in existence when the record before him, and brought before the court, discloses on its face, as a matter of fact or of law, that such jurisdictional essentials are absent. This is in accord with many rulings, State ex rel. Velie v. Morgan, 130 Wis. 293, 295, 110 N. W. 245; State ex rel. Foster v. Graham, 60 Wis. 395, 397, 19 N. W. 359; State ex rel. T. L. Smith Co. v. Superior Court, 170 Wis. 385, 387, 175 N. W. 927; State ex rel. Peart v. Wisconsin H. Comm. 183 Wis. 614, 617, 198 N. W. 753.

Some further contention is made that certiorari is not the proper remedy. We think, however, that it clearly is.

It follows from what has been said that the court below was right in his holding that the recall petition was insufficient to require the calling of a recall election.

By the Court. — -Judgment affirmed.

The following opinion was filed March 23, 1927: