Citation Numbers: 73 Op. Att'y Gen. 83
Judges: BRONSON C. La FOLLETTE, Attorney General
Filed Date: 9/24/1984
Status: Precedential
Modified Date: 4/15/2017
DARWIN L. ZWIEG, District Attorney Clark County
You request my opinion on three questions which are related to the following circumstances which you represent as factual. One David Bertz was elected Sheriff of Clark County at the November 1982 general election for a statutory two-year term ending the first Monday in January 1985. He was sworn in and qualified prior to his election in April 1983 as supervisor of the Town of Hewett in Clark County. He accepted the latter office and served therein until *Page 84
resigning as town supervisor on or about May 12, 1984, after having been advised that Wisconsin Constitution article
Your questions as restated and renumbered and my answers are:
1. Did David Bertz vacate the office of sheriff by accepting the office of town supervisor during the term for which he was elected?
The answer is yes. He can, however, continue to perform the duties of the office until his appointed or elected successor qualifies.
2. If Bertz did vacate the office of sheriff when he accepted the office of town supervisor, is he entitled to the salary paid him as sheriff after acceptance of the office of town supervisor?
The answer is yes, if he performed the duties in good faith and there was no other claimant for such office.
3. Would the fact that Bertz held the office of sheriff at the time he assumed the office of town supervisor have any effect on the validity of town resolutions and ordinances he voted upon?
The answer is no. He was not ineligible to the office of town supervisor but served in a de jure capacity therein.
A sheriff is a constitutional officer chosen by the electors of the county for a two-year term. Wis. Const. art.
The recent revision of the town laws,
By accepting the office of town supervisor at the time he already held the office of sheriff, Bertz vacated the office of sheriff in the sense that he gave up all right and title to it. Section
Any public office . . . shall become or be deemed vacant upon the happening . . . .
. . . .
(10) . . . [O]f any other event which is declared by any special provision of law to create a vacancy.
He had de jure status at least until the time he accepted the incompatible office of supervisor. Upon accepting the incompatible office he at least continued as de facto sheriff.State ex rel. Thompson v. Gibson,
His act of resigning the office of supervisor would not restore any right to the office of sheriff in such individual if there were an under-sheriff, or as against a successor appointed by the Governor. In 67 C.J.S. Officers § 32 (1978), it is stated: "One who vacates an office by acceptance of an incompatible office is not restored to the first by resignation from the second." The office is vacant in the sense that the Governor has power to appoint a successor pursuant to section
Acts of a person apparently in possession of an office by color of authority and performing the duties of the offices in good faith are valid. Silgen v. Fond du Lac,
A de facto officer may be entitled to the compensation incident to the office where he or she rendered services in good faith and there was no other person who could properly claim the salary.State ex rel. Elliott v. Kelly,
BCL:RJV