State ex rel. Ennis v. City of Janesville

Wisconsin Supreme Court
State ex rel. Ennis v. City of Janesville, 90 Wis. 157 (Wis. 1895)
62 N.W. 933; 1895 Wisc. LEXIS 234
Newman

State ex rel. Ennis v. City of Janesville

Opinion of the Court

Newman, J.

Thé special election is to he held valid in. this action if it does not affirmatively appear that it was not notified as provided by sec. 3, ch. 296, Laws of 1885 (sec. 1548b, S. & B. Ann. Stats.), or if it does not affirmatively appear that the ballots used were not such as are directed by that section. This is not a law relating to general elections, and elections under it are not governed by laws relating to general elections, any further than is provided by that statute itself. Elections under it are to be governed by its own special provisions. If such special provisions are complied with, the election is valid. That the form of ballots used was strictly in conformity to the form directed by the statute is clear. It also seems clear that it was nob intended to repeal or modify this provision by ch. 288, Laws-of 1893. That chapter provides industriously how persons may be elected to offices, and how elections for that purpose shall be notified, held, conducted, and the form of ballots-which must be used, but its provisions are entirely silent as to the form of ballot to be used in an election upon any other matter. The law under which the election in question was held is in no respect inconsistent with its provisions; nor is it named among the acts expressly repealed by sec. 127.

Sec. 3, ch. 296, Laws of 1885, makes it the duty of the city, clerk, whenever a request is made to him in writing, signed by at least twelve qualified voters of the city, asking for a. special election to be held for the purpose of determining the amount to be paid for a license to sell intoxicating liquors to be drunk on the premises, “ to forthwith give notice of a special election for that purpose, in the manner provided for giving notice of general elections.” How notice of general elections is to be given is provided by ch. 288, Laws of 1893. It is the latest revision of the laws relating to general elections. It makes provision, in detail, of the “ manner ” in which notice shall be given. It may fairly be-*160assumed that it comprises all the laws now in force relating to the subject. State v. Campbell, 44 Wis. 529, and cases cited. Secs. 9,10, and 11 provide in detail how and what notice shall be given. The county clerk must publish in one newspaper within the county, and transmit copies to the officers named. The officers to whom copies are transmitted must post copies within their territory. Nothing is said about publishing in a newspaper within a city. It will readily be seen that secs. 26 and 27 relate to a different matter. They require the publication by the county clerk of “ the nominations to office certified to him under the provisions of this act.” And in the provision in sec. 26 relating to municipal elections it is “ such publication ” as is before mentioned in the same section, that is, the “nominations certified,” which is to be made “ in all the newspapers published in the city.” It is abundantly obvious that those provisions can have no application to an election under ch. 296, Laws of 1885.

It does not appear whether the notice required by law was in fact given. Doubtless the presumption is, in the absence of proof in the record to the contrary, that the required notice was given and that the election was regular and valid. State ex rel. Manitowoc v. County Clerk, 59 Wis. 15. Where irregularity does not affirmatively appear, it is proper to quash the writ. Hauser v. State, 33 Wis. 678; State ex rel. Cameron v. Roberts, 87 Wis. 292.

By the Cowrt.— The judgment of the circuit courtis affirmed.

Reference

Full Case Name
The State ex rel. Ennis v. The City of Janesville and others
Cited By
2 cases
Status
Published