#### State ex rel. Lutfring vs. Gœtze.

County Judge : *1There his oath must he filed*— Effect *of filing elsewhere.—*Election, *to fill vacancy, without notice, valid.*

1. A county judge elect must qualify acording to sec. 92 (and not sec. 157), chap. 13, R. S.

2. If he files his official oath with the county treasurer (sec. 157), and not with the clerk of the circuit court (sec. 92), the office becomes vacant, under sec. 2, chap. 14, R. S.

3. The act of March, 1866, authorizing defendant to file his oath with the clerk, such filing to have the same effect as if seasonably done, would have been valid if acted upon before any election to fill the vacancy. But a valid election having been held before the oath was filed, at which the relator received a majority of the votes, a subsequent filing was inoperative.

4. An election to fill a vacancy, however created, will not be held invalid merely because the statutory notice was not given.

5. Whether it should not be held invalid in case a want of actual notice to the body of voters were alleged and shown, discussed per Paine, J., but not decided by the court.

*364EBBOB to tbe Circuit Court for *Ozaukee*County.

Action to try title to tbe office of county judge of Ozau-kee county. Trial by tbe court alone. Tbe facts found will clearly appear from tbe opinion. Judgment for tbe defendant, *Goetze*; and *Lutfring*took bis writ of error.

*Geo. W. Foster,*for plaintiff in error,

to tbe point that tbe special provisions of sec. 92, cbap. 13, B. S., should prevail over tbe general provisions of sec. 157, cited Sedgw. Stat. & Con. Law, 237, 423; Smith’s Comm., secs. 647-8, -651-4, 659; 9 Cow., 437; 1 "Wis., 525; 15 id., 156. To tbe point that tbe election of tbe relator was not void for want of notice, be cited sec. 107, cbap. 7, B. S., and *State v. Orvis,*20 "Wis., 235.

*Bentley Pors,*for defendant in error,

argued that there is no substantial conflict between secs. 92 and 157, cbap. 13, B. S., except as to tbe place where tbe oath of tbe county judge shall be filed; that if there is a substantial difference as to tbe form of oath prescribed, sec. 157, must prevail because tbe oath there prescribed is the one required by tbe constitution, and no other can be imposed; and that under sec. 12, cbap. 191, B. 8. (“the provisions of tbe section which is last in numerical order shall prevail”), sec. 157 must prevail over sec. 92, in respect to tbe place of filing tbe oath.

Paine, J.

Tbe court has arrived at a conclusion in this case to which I have assented with much reluctance.

Tbe defendant in error was duly elected county judge of Ozaukee county in April, 1865. On tbe 2d of January, 1866, be entered upon tbe duties of bis office, having previously complied with tbe provisions of sec. 157, chap. 13, R. S., for tbe purpose of qualifying. Tbe oath required by that section was administered by a notary public, and was filed with tbe county treasurer. At tbe town elections in *365the succeeding April, there was an election to fill the same office, of which, however, no notice was given as required by law; and it does not appear that any notice at all was given, except from the fact that a considerable number of votes was cast, nearly all of which were for the relator. The only ground for holding such an election at that time was, that the defendant in error had neglected to qualify within the time required by law, and that consequently there was a vacancy in the office.

In support of this conclusion it is claimed that the county judge must qualify according to the requirements of sec. 92, chap. 13, instead of sec. 157. That section relates spe.-cifically to the office of county judge, while the latter relates to county officers in general.

There is no rule of construction more reasonable, and none better settled, than that special provisions of a statute in regard to a particular subject, will prevail over general provisions in the same or other statutes, so far as there is a conflict. This rule is thus stated in Dwarris on Statutes, p. 658 : “ "Where a general intention is expressed, and the act also expresses a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception. While, if a particular thing is given out or limited in the preceding parts of a statute, this shall not be taken away or altered by any subsequent general words of the same statute.” This rule would seem to be directly applicable here, and would require that the provisions of sec. 92 should govern in respect to the mode in which county judges should qualify, so far as there is any conflict between that and the general provisions of sec. 157. So far as relates to the form of the oath, there is perhaps no substantial difference. The latter provides that the officer shall take the oath prescribed by the constitution, which requires him to swear that he will *366“ faithfully” discharge the duties of his office, etc. Section 92 requires him to swear that he will “ faithfully, impartially and honestly ” discharge the duties, etc. This is merely a little tautology, using more words to express the same idea, as it is evident that no officer could “ faithfully ” discharge his duties without at the same time discharging them honestly and impartially. Besides, it is questionable whether it would not be sufficient in any event to take the oath prescribed by the constitution.

So, also, in respect to the officer before whom the oath may be taken, there is no conflict between the two sections. Section 92 provides that it “ *may*be taken ” before the clerk of the circuit court, or before any justice of the peace. Its language is permissive, and not exclusive. It may well stand with section 157, which enlarged the authority and allowed the oath to be taken before any officer authorized to administer oaths.

But there is an irreconcilable conflict between the two in respect to the place where the oath is to be filed. Section 92 provides that it “ shall be filed in the office of the clerk of the circuit court,” while the other requires it to be filed with the bond at the office of the county treasurer. It is clear that it was not intended that it should be filed at both places. It could not' be, as only one oath is required to be taken. One or the other of these sections must govern; and, in accordance with the rule above stated, we must hold that section 92 governs, and that the oath should have been filed in the office of the clerk of the circuit court. It follows that the defendant in error had not qualified.as the law required.

What effect did this failure have,upon the office? This question is answered by a positive provision of the statute. Section 2, chap. 14, provides that “ every office shall become vacant” by the refusal or neglect of the incumbent *“to*
      *367take Ms oath of office, or to give or renew Ms official bond, *or to deposit such oath or bond*within the time prescribed by law.” In view of this provision, I see no mode of avoiding the conclusion that the office became vacant by the neglect of the incumbent to file his oath with the clerk. I think the law ought not to be so.’ There should be some provision to avoid so severe a result in cases where the- party has honestly attempted to comply with the law, and has failed merely through misapprehension of its requirements. But there seems to have been no such provision made, and the courts have no power to supply the deficiency.

A vacancy existing, what was the effect of the subsequent proceedings ? In the first place, the legislature passed an act in March, 1866, authorizing the incumbent to file his oath with the clerk, and providing that it should have the same effect, when so filed, as though it had been done sear-sonably. *~We*have no doubt that it was competent for the legislature to pass such a law. It would not be an attempt to legislate a man into office without an . election. The incumbent had been elected.; and the law in question was a mere authority to supply a defect in his proceedings to qualify. And if the incumbent had acted under its authority before the election of the relator, we think his tenure of office would then have been good. But this act did not attempt to change the existing condition of the office. A vacancy having already occurred before its passage, it continued to exist until the election at which the relator received a majority of votes. And if that election was legal, so that the relator acquired a right to the office by virtue of it, the incumbent could not afterwards defeat his right, by qualifying under the authority of this act. It must be held only as an authority under which he might have qualified provided he did so before the rights of other parties intervened.

*368It remains, then, only to determine whether tbe election of tbe relator was valid.

In tbe case of *The State v.*Orvis, 20 Wis., 235, tbis court bas already beld that tbe omission to give notice of an election does not vitiate it, and that tbis rule is applicable as w.ell to elections to fill vacancies as to those for tbe full term. There are cases supporting such a rule. But if it were a new question here, I should doubt its propriety. I can readily admit its correctness as applicable to tbe regular elections to fill tbe full term of office. Tbe electors may well be presumed to know when the regular terms of public officers begin and end. They usually do know it in fact. But in respect to vacancies it is entirely different. It is true they would be very likely to know it, where tbe vacancy was occasioned by tbe death of tbe incumbent, as in *The State v. Orvis.*But where it was occasioned by tbe refusal or neglect to qualify according to law, as in tbe present case, it would generally be unknown to most of tbe people, unless some notice was given. Tbe general presumption that people are supposed to know tbe law, is not sufficient, for it is not a knowledge of tbe law merely that is required, but a knowledge also of facts. It may be assumed that tbe people knew that tbe law required tbe oath to be filed in tbe office of tbe clerk. But it cannot be assumed that they knew it bad not been filed there, but bad been filed in tbe office of tbe treasurer. It is very obvious, therefore, that any person who bad discovered that fact might quietly circulate tbe information among bis friends and get himself elected at the next election, and yet tbe fact that there was an election for that office remain unknown to tbe majority of tbe voters. If such a state of facts were presented, I should not hesitate to bold that tbe election was invalid for want of actual notice. And I think tbe case of *The State v. Orvis*does not decide tbe contrary. That simply decided *369that the omission to give the statutory notice does not invalidate the election. But when a case is presented showing that there was no notice in fact of any kind of an existing vacancy, and of an election to fill it, that will present a different question for consideration. Several of the cases by which the rule has been established that the omission of the the statutory notice did not vitiate an election, have placed stress upon the fact that, notwithstanding that omission, the people had actual knowledge of the pendency of the election. *Dishon v. Smith,*10 Iowa, 218. And while I have found no case that has held that a few persons who had obtained private information of a fact creating a vacancy, which was generally unknown, could, without any notice hold a valid election to fill it, I have found one well considered case directly to the contrary, and which I think establishes the law that should govern such a question. It is the case of *Foster v. Scarff,*15 Ohio St., 532; and it will be observed that in that case the doctrine was applied to a regular election to fill the full term. The reasons for applying it to a special election to fill a vacancy happening during a term, are much stronger.

The question here indicated, I think, is not presented by this case. The fact that so few votes were given for the incumbent, who had been elected only a year before, might furnish ground for a suspicion that his friends were not generally aware of the election. But the case cannot be determined on suspicions. -. If such were the fact, it should have been alleged in the answer and been made to appear by the evidence. On the record as presented, we must assume that the only objection was the want of the statutory notice. And as that has already been held insufficient, we must, adhering to that decision, hold that the election of the relator was valid.

In what I have said as to the effect of a want of actual *370general knowledge of an election, I have given only my own views, tbe court not having considered tbat question. But I did not wish to assent to tbe rule tbat a want of tbe statutory notice will not vitiate an election, without stating distinctly tbe extent to which tbat assent is given.

Tbe judgment must be reversed, and tbe cause remanded with directions to enter judgment for tbe relator on tbe facts as found.

*By the Court.*— Ordered accordingly.