The Manitowoc tribune. [volume] (Manitowoc, Wis.) 1866-1878, 1872-02-22
BURNETT VS.. PIERP0ET.
opiniom OF tic s:1s,-en.e Court.

opinion OF TIC Supreme Court.
The State Of Wisconsin on the Relation |
OF Gilbert W. Burnet and Gilbert ".
Burnet VS.. Henry 8. Pierpont.
This is an action Of Gao Warranto
commenced in this county The Rclator
and the Defendant have fled q stipulation
signed by them respectively that the
case be heard and determined by the
court. upon the complaint fled therein
as true, and for the purposes of the trial
the Respondent admits its truth "
The facts alleged in the complaint and
which by virtue Of such stipulatioas are
to be taken and held to be the facts in
the case, are briefly as follows: At the
general election held in the County OF
Manitowoc, on the 9th day Of November
1870, one Peter =. Fuesscnich was duly
and legally elected to The office of Clerk
Of tie Board of Supervisors Of that coun-
ty for full term Of two years, commenc-
ing Oh the first Monday in January 1871.
That upon the 22d day OF March 1871,
Fuessenich resigned the said Office and
ceased to dischaf &c. the duties thereof by
means whereof vacancy was created
therein.
That at the general election in said
county on the It'll day Of November 1871
an election was held for County Clerk to
fill such vacancy, and that the Relator
was at said election duly and lawfully
elected to the Office of County Clerk Of
the County of Mantowoc 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 that the
Defendant wrongfully and unlawfully OBJ.
tanned from the Board Of County caves
sers, certificate Of his election to said
office, and atierward on the seventeenth
day of November 1871. he. the said Hen
ry s. Plerpont, did usurp said Office and
intrude himself into the same, and con-
tinues to do so, and has unlawfully held,
used and exercised said office and the
franchises and privileges thereunto belong
ing and continues to do so to the exclu-
sion and against the rights and privileges
of the Reiator and OF the people of this
State.
All of the votes at said election for the
Office of County Clerk, seem to have
been given for the Relator and the De-
PENDANT The Relief demanded is that
the Defendant be ousted from such Office
| adjudged The admitted facts in this
case clearly demonstrate that the Relator
and not the Defendent, was duly elected.
oil ole hnt IN
| fill the vacancy was properly held at the
general election in 1871, that being the
| first general election which occurred after
the happening of the vacancy, T. Stat
Oh. Sec 6. The vacancy could not
| lawfully have been filed before that, the
statute does not authorize the holder of
a special election to fill the same, Id. Gu
7 Sec Subdivision 8. 1t may be observ
ed here that by the provisions Of chapter
I3I, laws of 1871, the official designation
Of the officer heretofore 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 Co.
| Clerk, and which were duly returned the
| Relator received l475 and the Defendant
| 1881, that DO return was made or can
vassed from the town ofCato in SAID Go. ,
and that IN that town the Rcator receiv-
ed 1875 votes, and the Defendant % votes
for such Office. These votes are all ad-
United to have been cast by legal voters.
It appears therefore that the Relator
was elected by "a majority Of GO votes.
In proceeding Of this nature it is well
settled that the County Will 60 behind
| the certificate Of the cangassers and ad-
judge the Office to the person who has
in fact received plurality Of the legal
votes therefor. Carp a3fer &c. rel. rs.
Ely, 4 HIS 400; BaSlJ0rd ec. rel. Is.
Bcustow H. SCI (p 500; Field &C. rel.
Us. AccTy. II III. I22.
| We thiik that it was the duty Of the
acting County Clerk in Gaze no returns
/ from the town Of Cato were receiyed b5'
| him within the time prescribed by law
| to send d special messenger to obtain the
same and If snch returns had been re
ceiUed By him, bmt a0cre Informal or incona-
lolcte, THEN IT BECAME TIE DUTY or TIE
BOARD OF CANvASSERs IN LIKE MAN
INSPECTORS OF SUCH ELECTION IN THAT
TOWN, to the end that the returns should
be made in the manner required by law.
T. S. Chap. Sec. 80.
There must be judgment of custer
against the Defendant and that the rela-
tor is entitled to the Office, but without
costs, the parties having stipulated that
no costs be adjudged against the Defen
dant