#### State ex rel Burnett. vs. Pierpont.

*Quo Warranto. County clerk, vacancy how filled. County canvass.*

1. A vacancy in the office of county clerk cannot be supplied by election until, the first general election after it occurs. 1 Tay. Stats., ch. 7. § § *5-*6.

2. In an action in the nature of a *quo warranto,*the court will go behind the canvassers’ certificate, and award the office to the person who, in fact, received a plurality of the legal votes cast therefor.

3. It is the duty of the county clerk, where no returns are received by him from a particular town, within the time prescribed by law, to send a special messenger to obtain the same. If the returns received are informal or incomplete, it is the *duty*of the board of canvassers to send a special messenger to the inspectors of the election in such town, to have the returns made as required by law. Tay. Stats., ch 7, § 89.

QUO WARRANTO to try tbe respondent’s title to tbe office of county clerk.

*The Attorney General,*for tbe relator.

*Edward S. Bragg,*for tbe respondent.

Lyon, J.

This is an action of *quo warranto,*commenced in tbis court. Tbe relator and tbe defendant have filed a stipulation, signed by them respectively, -“that tbe case be beard and determined by tbe court upon tbe complaint filed therein as true; and for tbe purposes of tbe trial tbe respondent admits its truth. ”

The facts alleged in tbe complaint, and which, by virtue of such stipulation, are to be taken and held to be tbe facts in tbe case, are briefly as follows: At the general election held in tbe county of Manitowoc, on tbe sixth day of November, 1870, one Peter P. Tussenicb was duly and legally elected to tbe office of clerk of tbe board of supervisors of that county for a full term of two years, commencing on tbe first Monday in January, 1871. On tbe 22d day of March, 1871, Tussenicb resigned tbe said office and ceased to discharge tbe duties thereof. *609bj means \ -fr veof a vacancy was created therein. At the general election ; *r*said county on tbe 7th. day .of November, 1871, an election held for county clerk to fill such vacancy, and the relator wnn at said election “duly and lawfully elected to the office of county clerk of the county of Manitowoc, to fill the vacancy in said office caused by said resignation, and was entitled, and still is entitled, to hold and enjoy the said office of county clerk aforesaid; ” and the defendant wrongfully and unlawfully obtained from the board of county canvassers a cer-tificáis of his election to said office, “and afterwards, on the seventeenth day of November, 1871, he, the said *Henry S. Pierp -'v,*did usurp said office and intrude himself into the same, and continues to do so, and has unlawfully held, used and exorcised said office and the franchises and privileges there-urt/< belonging, and continues to do so, to the exclusion and against the rights and privileges of the relator and of the people of this state.”

All of the votes at said election for the office of county clerk S"env to have been given for the relator and the' defendant.

The relief demanded is that the defendant be ousted from such office, and the right of the relator thereto be adjudged.

To'.! admitted facts in this case clearly demonstrate that the reía tor, and not the defendant, was duly elected.

11 '-v.ems clear, also, that an election to fill the vacancy was pro periy held at the general election in 1871, that being the fir-t general election which occurred after the .happening of the vacancy. Tay. Stats., ch. 7, § 6. The vacancy could not lawfully have been filled before that time, for the reason that the statute does not authorize the holding of a special election to fill die same. Id., ch. 7, §5, subd. 8. It may be observed here, that, by die provisions of ch. 131, Laws of 1871, the'official designation of the officer theretofore known as “clerk of the board of supervisors,” was changed to that of “ county clerk.”

The admitted facts are further, that, of the votes given at such election for county clerk, and which were duly returned^ *610tbe relator received 1,475, and tbe defendant 1,581; tbat no return was made or canvassed from tbe town of Cato in said county; and tbat in tbat town tbe relator received 195 votes, and tbe defendant 26 votes, for sucb office. These votes are all admitted to bave been cast by legal voters. It appears, therefore, tbat tbe relator was elected by a majority of 68 votes.

In a proceeding of this nature, it is well settled tbat tbe court will go behind tbe certificate of the canvassers, and adjudge tbe office to tbe person who has in fact received a plurality of tbe legal votes therefor. *Carpenter ex rel. v. Ely,*4 Wis., 420 ; *Bashford ex rel. v. Barstow,*id., 567 (p. 800); *Field ex rel. v. Avery,*14 id., *122.*

We think tbat it was tbe duty of tbe acting county clerk, in case no returns from tbe town of Cato were received by him within tbe time prescribed by law, to send a special messenger to obtain tbe same; and if sucb returns bad been received by him, but were informal or incomplete, then it became tbe duty of tbe board of canvassers in like manner to dispatch a messenger to tbe inspectors of sueb election in that town, to tbe end tbat tbe returns should be made in tbe manner required by law. Tay. Stats., cb. 7, § 89. ,

There must be judgment of ouster against tbe defendant,.and tbat tbe relator is entitled to tbe office, but without costs,:tbe parties having stipulated tbat no costs be adjudged against the defendant.

*By the*Court.— So ordered.

Dixon, C. J., was absent.