#### Bush, Mayor, and others, Plaintiffs in error, vs. The State ex rel. Boyle, Defendant in error.

*September 20*

October *11, 1898.*

*Municipal corporations: Elections: Statute construed.*

Under seo. 1, oh. 70, Laws of 1897, — providing that in cities of the fourth class certain officers shall be elective if a petition asking therefor be filed fifteen days prior to any regular election, “ signed by a mar jority of the electors of such city who voted at the last general election then next preceding, *as appears from the poll list,”—*such petition must be signed by a majority of the persons whose names appear upon the poll list of electors who voted at the last preceding general election.

Eeeoe to review a judgment of the superior court of Milwaukee county: Geo. E. SutheelaND, Judge.

*Reversed.*

This was a proceeding by mcmdamus, sued out of' the superior court of Milwaukee county, directed to the plaintiffs in error, as mayor, members of the common council, and city clerk of the city of South Milwaukee, requiring them to proceed and give notice of, call for, and order, the election at the then next succeeding regular municipal election of said city, to be held April 5, 1898, of the following named officers, to wit, city attorney, city physician, chief of police, and street commissioner. The relation and writ alleged, among other things, that the city of South Milwaukee was a municipal corporation and a city of the fourth class, organized under the general city charter law of the state (Laws of 1889, ch. 326, and amendments thereto), and received its patent as such city July 6,1897; that it was the legal successor of the late village of South Milwaukee, and no general election had been held in said city since its incorporation; that on the 16th of March, 1898, fifteen days or more next prior to the next regular municipal election to be held in said city, April 5,1898, a petition was filed in the city clerk’s office, and laid before the common council, signed by a majority of the elect*550ors of the city who voted at tbe last general election so held in said village, “ as appears from the poll list,” asking that said five offices of city clerk, etc., be made elective, and that the officers therefor be elected at such municipal election to be held April 5th, and asking the common council and proper officers to proceed and give notice of, call for, and order the election of such officers at such election; that said petitioners were 353 in number, and constituted more than a majority of the electors of the city who voted at the last general election then next preceding, “ as appears from the poll list,” and that they remained such electors; that, notwithstanding the presentation of such petition, the common council wholly ignored the petition and its subject matter, and gave out that it would continue so to do, and that it would not regard such petition.

The respondents moved to quash the alternative writ, on the ground that it was prematurely issued, and because it did not state facts sufficient to entitle the relator to the relief sought. This motion was overruled.

The writ was sued out under sec. 1, ch. 10, Laws of 1897, providing that, *“*in cities of the fourth class, the city clerk, and any and all other officers, in addition to those herein-before specified, may be elected by the qualified electors, at the same time and in the same manner other officers are elected, upon a petition asking therefor being filed in the office of the city clerk fifteen days prior to any regular election, signed by a majority of the electors of such city who voted at the last general election then next preceding, *as appears from the poll list.”*The statute further provided that, upon like petition signed by a majority of the electors asking therefor, any common council “may provide for the appointment by the mayor, with the concurrence of the common council, of any officers of such city excepting the offices of mayor, alderman, assessor, treasurer, supervisor or justice of the peace.”

*551The respondents, in tbeir return to tbe alternative writ, alleged that said petition to tbe common council was referred to tbe committee on elections to examine, compare, verify, and report at tbe next regular meeting of tbe common council whether said petition bad been signed by a majority of the electors of said city who voted at tbe last general election then next preceding, as appeared from tbe poll list; that at an adjourned meeting of tbe council, held for tbe purpose of receiving tbe report of the committee on elections, to whom said petition bad been referred, said committee reported ■upon said petition, among other things, that it required 304 signatures to said petition to constitute a majority of tbe electors who voted at tbe last general election, and that there were but 246 names signed to tbe said petition of electors, as appeared from tbe poll list, and that tbe petition lacked fifty-eight names of tbe number requisite to constitute a majority ; that the common council thereupon found and determined that said petition had not been signed by a majority of the electors of such city who voted at tbe last general election then next preceding, as appeared from tbe poll list, and further determined that said petition bad not been signed by a majority of tbe electors of said city; and that thereupon they passed a resolution denying tbe prayer of the petition.

Tbe relator demurred to tbe return, and tbe demurrer was sustained. Thereupon tbe respondents asked leave to file an amended return, setting forth, among other things, that at tbe election held on tbe 30th of June, 1897, at which was elected tbe mayor, city treasurer, comptroller, assessor or assessors, aldermen, justices of tbe peace, and supervisors, 705 electors voted, as appeared from tbe poll list, and further .alleging, on information and belief, that from 750 to 800 electors were entitled to vote at tbe next ensuing municipal election. Tbe application to file an amended return was denied.

*552Aa order sustaining tbe demurrer, to tbe return to tbe alternative writ of *mandamus,*and awarding judgment for a peremptory writ of *mandamus,*and for six cents damages and costs, was made and entered on tbe 26tb day of March, 1898, and judgment was entered for $106.83, damages and costs, and for tbe peremptory writ prayed for in tbe relation, and upon wbicb tbe plaintiffs in error sued out tbeir writ of error.

For the plaintiffs in error there was a brief by *Kelly &*Kelly, and oral argument by *John T. Kelly.*

They argued,, among other things, that tbe names of a majority of the-electors who voted at tbe last general election then next preceding, as appeared from tbe poll list, must appear upon tbe petition. This is a jurisdictional fact, and must exist before the common council could order tbe election. *La Londe v. Sup’rs of JBarron Oo.*80 Wis. 380, 384; *State ex rel. Hawley v. Sup’rs of Bolle Oo.*88 id. 355; *Smith v. Gomm’rs of Benville Oo.*64 Minn. 16.

For the defendant in error there was brief by *Jared Thompson,*Jr., and oral argument by *John Toohey.*

They contended,. *voter*alia, that sec. 1, cb. 70, Laws of 1897, was not intended to require, and does not require, that the name of any petitioning elector must appear upon or “from such poll list.” A majority who voted at tbe last municipal election preceding might naturally have been replaced by other electors, and to such a number that it would be impossible to present a petition signed by a majority of tbe electors *whose names appear upon*tbe poll list for that year, and so tbe purpose of tbe statute be defeated. Tbe principle is that tbe majority of tbe electors of to-day and not of yesterday shall have tbe governing voice. A dead or former elector whose name happens to appear upon tbe last poll list was not intended to be counted in tbe determination of tbe petitioning number, as against a live, present elector. *Loomis v.*Bailey, 45-Iowa, 400; *Stone v. Miller,*60 id. 243; *State ex rel. Morgan*
      *553
      *v. Oomm'rs of Nemaha, Go.*10 Neb. 32; *State ex rel. Bradford x.*Stock, 38 Kan. 154.

Pinney, *J.*

The court erred in sustaining the demurrer of the relator to the respondents’ return to the alternative writ. The petition presented to the common council was signed by only 246 electors who voted at the last general election then next preceding, as appeared from the poll list. The whole number of names signed to the petition was 353,. but 107 of these names did not appear upon the poll list of electors who voted at the last general election next preceding, so that there were fifty-eight less than a majority of legal signatures in favor of the proposition. The statute prescribes a simple, positive, and convenient test of the question whether the proposed change has been adopted, namely, by a canvass of the names of electors on the petition, as-compared with those on the poll list of the last preceding general election. An examination of the poll list and of the petition is a decisive test, and the statute renders any other inadmissible. Has the petition been signed by a majority of the electors of such city who voted at the last general election then next preceding, *as appears from, the poll list?*. It is obvious that the proposed measure failed, and the court erred in its judgment awarding the peremptory writ of *mandamus.*

*By the*Court.— The judgment of the superior court is reversed, and the cause remanded with directions to dismiss the alternative writ.