Kenosha telegraph. [volume] (Kenosha, Wis.) 1850-1854, 1851-01-31

Vlsed Staiu tes, which took effect the first day
OF MAY, lS49, provides that a general election
shall be held IN November in each year, a; which
there shall be chosen so many of the state and
county officers as are by law TO be elected in such
year, amongst others, county Treasures. Un-
der this Statute, county Treasures in all the or
gained counties of the state were elected at the
general election held in the fall of ls49, whose
regular term of office, by section 81, of the same
chapter, commenced on the first day of January
| 1850, which term was two years, as provided by
Sec l03 of chap % of the Revised Statutes
The election of county Treasurer being thus
provided for by said Sd section, consequently
section 85 of such chapter has no reference to
the election of such Treasurers. Pursuant 10
the provisions of said Sd section, Treasurer
was probably elected at the fall election of lS49
for the county of Racine, for term of Office
commencing January LIST, 1850, and to continue
two years; consequently the Territory now con.
shutting the new county of Kenosha, had its
Treasurer in common with the county of Racine
until by Legislative enactment such office be-
came vacated as to such new county
By an act of the Legislature of this State pass
ed January 30th, 1850, the said county of Racine
was divided, and the south half thereof was set
off and erected into separate county under the
name and title of "Kenosha - and il was provi-
ded by the 3D. section of the said act that on the
first Tuesday OF April then next an election
should be held therein for call and every OF tho
county officers provided by law for county 60
vernment, which officers should hold their Offices
until the expiration of the term of similar offices
in other counties"
Under the provisions of this act, Geo NJ Ro
bnson was elected Treasurer of the county of
kcnosha at such election in April. 1850.
The commencement and duration of Robin
sons Office cannot be determined by the provis-
ions of the 85th section of chapter 6, which on
ly provides for the election Of officers in counties
then "organized,' and the county of kenosha be-
| ing subsequently erected, and the election of
county Treasurer thereof being otherwise espe-
! cially provided for by the act creating such new
county, 10 hold the office until the expiration of
the term of the same office in other countless
| The statute erecting the county Of Kenosha ev-
identity limits the duration Of this office by eau
sing it to terminate befDre the expiration of two
wears from the time Of the election, otherwise his
term would extend beyond Two years from the
! time Of his election, limit unknown TO any stat
ute, and in direct cOniraventOn not only of the
general laws OF this state but also of the spirit Of
the act under which his election was held, which
limits his Office until the expiration Of the tern.
Of similar offices in other countess
1t follows then, that the term of Robinson's Of
flee would expire at the close Of the year 1851,
and not before. Il next appears from the proofs
taken in this matter that Robinson resig ned said
Office on the 9th day of May following his cleo
tion in 1850. This created a vacancy in said Of
fee and thereUpon the board of Supervisors of
the county of Kenosha, on the 18th day of May,
1850, to supply such vacancy, appointed the re-
spondent, Clement, Treasurer, who Immediately
qualified and entered upon the duties of his Of
/ Ero opjb hoe n no
sent time.
1t thus appearing that as the term Of Robin
sons office extended beyond the year 1850, the
relator could not, at the general election in 1850,
have been elected for regular term"
The next question therefore, is, whether the
relator has been duly elected and qualified to Fill
the racascy caused by the resignation of Robin
son.
By the SSth section of the 9th chapter Of Re-
vised Statutes, person appointed to fill vacan-
cy to an Office holds the Office only until his sue
cessor is elected and qualified. But when elect
ed TO fill vacancy he holds during the unexpi
red term and until his successor is elected and
qualified"
By subdivision Sd Of section 4th of tho 9th
CHAPTER of the Revised Statutes, vacancy in the
office of county Treasurer cannot be filled at
special election and by section Ii OF the same
chapter it is provided that
The filing of all vacancies il county offices
at a general election shall be ordered by the sher
! ff of the county which order shall be counter
! signed by the clerk of the board Of supervisors;
aud bv section / 80 Of chapter OF Revised Stat
utes, it is provided that county Treasurers "shall
within 30 days after receiving official notice OF
their election or appointment, or within 20 days
after the commencement of the term for which
! they were elected or appointed, execute and de-
/ - -. 49, 100 -
the oath of office prescribed by the constitution
of this state" and "deposi, his bond and oath to
be preserved, &c"
Now as the relator could not have been cleo
ted at the general election in Nov. 1850 Cor a
Irregular term" did the sheriff and the clerk of
! the board Of supervisors comply with the requi-
stions of section 4th above recited, by ordering
| the filing Of such uacancy at that election p
Clearly not, for there is proof that the Sheriff
made the requisite order for filling such vacancy
at that election, ard the clerk of the board of SUI
peryisors has testified that he never or cOun-
iersigned any such order.
| No presumption arises here shat the sheriff and
clerk did their duty in this respect Presump-
tons arise only where there is failure OF any
positive proof on the point, and pertinent proof
always rebuts the inference that public officers
have done their duty as prescribed by law; and
in this case the testimony Of the clerk of the
board must prevail agains, Prescriptions that
otherwise might have been raised in favor of the
regularity proceedings preliminary to the cleo.
ton.
Does this omission then prejudice the claim
| Of the relator to this office?
/ The 95th section Of the 9th chapter aforesaid,
provides ''tha, whenever it sha! satisfactorily ap-
pear that any person has received a plurality OF
the legal votes cast at any election for any of
fee, the canvassers shall give 10 such person a
certificate of election notwithstanding the pro-
visions Of Law have not been FULLY complied
with in noticing or conducting the election, or
canvaSsing or returning the votes so that the re-
al will of the plurality may not be defeated by
any iHformalIy."
This section prescribes the duties OF the can
vassers in directing them TO award their ceriih-
cate 10 the successful candidate, who shall have
received a plurality of votes, Notwithstanding n
defect in the noticing" &c, o: the election
Clearly this section authorizes the canvassers to
decide as between rival and opposing candidates
of the same election, Notwithstanding the pro-
visions of law had not been fully complied with
in noticing the eleciion-the board are not the
tribunal to determine the validity of such an cleo
ton-their duties are ministerial, rather than lu-
dirial in sueh