THE HISTORY OF CLARK COUNTY
Chapter XVI, 16 September 1909 -- Thorp Courier, Clark County, Wisconsin
Written by R. J. MacBride and transcribed by Crystal Wendt.
FROM 1870 TO 1880 -- CLOSE ELECTION
IN 1872 -- CONTEST FOR COUNTY
"This even handed justice commends the
ingredients of our poisoned chalice to our own lips."
At the general election in 1872 Edward E. Merritt, then publisher and editor of the Clark County Republican, was elected to the assembly, defeating B. F. French, by a small majority. Our senator at that time being Orlando Brown of Buffalo county, who had been elected the previous year. S. S. Smith of Loyal was county superintendent of schools, he also having been elected in November 1871.
The county officers elected in November, 1872, or serving in 1873 were Richard Dewhurst, county treasurer; Ira B. Pope, county clerk; Albert Brown, sheriff; William T. Hutchinson, register of deeds; E. H. Markey, clerk of the court; Robert F. Sturdevant, district attorney; James H. Reddan, county surveyor, and S. C. Boardman, coroner.
At this election William C. Allen was a candidate for the office of county treasurer, against Judge Dewhurst, the vote was very close, the official canvass giving Dewhurst 541 votes, and Allen 536.
For two years previous Allen had been deputy county treasurer under S. C. Boardman, had managed the affairs of the office, and was in possession of the same as such deputy.
He claimed that he was fairly elected to the office, that certain votes that were counted and canvassed for Judge Dewhurst, were illegal, and that upon a fair county of the votes cast by the legal voters of the county, that he was entitled to the office.
Both Dewhurst and Allen filled their official bonds, for the faithful performance of the duties of the office, and both claimed to be the treasurer elect.
On the first Monday of January, 1873, Judge Dewhurst at the county treasurerís office, made a formal demand for the books, paper and monies, belonging to the office, but Allen refused to surrender the office, and continued to act as county treasurer.
Thereupon Judge Dewhurst employed the law firm of Lvndes and Burroughs of La Crosse, to bring an action against Allen to oust him from the office, and to obtain possession of the same for himself.
Accordingly the attorneys brought an action in the name of the State, upon the relation of Richard Dewhurst requiring Allen to show by what right title or warrant of authority he claimed to hold the office of county treasurer of Clark county. The action being known in legal parlance as an action of Quo Warranto.
Allen in due time answered the complaint, alleged that he was duly elected specified certain illegal votes which he claimed were cast and counted for Dewhurst, also asserted that a number of ballots, that were marked "Dewhiry," were wrongfully counted and canvassed for his opponent, and other matters of similar character.
The case came on for trial in September, 1873, before Judge Romanzo Bunn and a jury.
The attorneys for the plaintiff before they were fairly started with the introduction of their evidence, encountered a legal stumbling block, that practically ended the case.
Judge Dewhurstís attorneys were seeking to prove that certain of the votes that had been counted for Allen were illegal, but on objection being made by Allenís attorneys the court ruled, that -under their pleading they could not be permitted to show it.
It seems that a rule of the Supreme Court had been adopted a few years before, which provided in effect, that in all actions of Quo Warranto in any of the courts of the State, in which the result of any election be in issue, that before either party should be permitted to offer proof of the illegality of the vote of any person who voted at such election, he must show to the court, that he had at least twenty days before the commencement of the trail served notice in writing upon the opposite party, that he claimed the vote of such voter to be illegal, stating the grounds of such illegality, and further providing that in case the facts required to be noticed were stated in the pleadings, then no other notices was required.
The attorneys for Judge Dewhurst were taken unaware of the rule, or else failed through inadvertence to comply with it, for neither in their pleadings, nor by notice as required by the rule, did they intimate before trail, that they would seek to put in such proof.
The result was that a continuance had to be taken until the next February term of the court in 1874, but after this had been granted, the attorneys for Dewhurst discontinued the action, and a judgment for the defendant was entered.
Allen held the office during the remainder of the term, ending on the first day of January, 1875.
There can be but little doubt that Judge Dewhurst was fairly elected to the office, and that he was entitled to have enjoyed the benefits, and emoluments thereof. It is quite possible that illegal votes were cast at the election, but it is quite probably that each of the candidates were thus equally benefited.
Although Allen enjoyed the office of county treasurer for a two years term to which he was not elected, it is likewise true, that by the action of the county board of supervisors, he was unjustly deprived of the office for a term to which he was elected.
At the election in November, 1874, Allen was again a candidate of the office of county treasurer. His opponent was Hiram W. Renne of the town of York, At this election Allen received for that office 680 votes and Renne received 606. There was no claim, or dispute that Mr. Allen had not received a substantial majority of all the votes, and his election to the office was never questioned. At the annual meeting of the county board of supervisors, in November, 1874, the board fixed the penalty of the bond at the sum of $150,000.00.
The relations between John S. Dore the chairman of the county board, and Allen, were very much strained, and it was due in a great measure, to Doreís influence, that the bonds of the treasurer were fixed at such a large sum and that the sureties offered were not accepted.
It was thought perhaps that Mr. Allen could not secure bonds in such an amount, but he did, and in due season presented it to the board of supervisors for their approval.
Notwithstanding the bondsmen were amply responsible for the amount, nevertheless the board refused to accept the bond, and never did approve it.
Allen filled his bond, without the boardís approval, took the constitutional oath of office, and went to acting as county treasurer. Allen continued to exercise the duties of the office without being disturbed therein, until after the election in November, 1875.
At that election William T. Hutchinson was elected county treasurer to fill the vacancy caused by the neglect of Allen to secure and file a bond, bearing the approval of the county board supervisors.
Hutchinson duly took the oath of office, and tendered to the board his official bond, which was approved and thereupon he made demand of Allen, for the monies, books and papers pertaining to the county treasurerís office.
Allen refused to deliver them up, and after such refusal, Hutchinson brought an action, in the name of the state, upon his complaint, to oust Allen from the office.
The action was in the nature of Quo Warranto, and was made upon the relation of the then Attorney General A. Scott Sloan. Mr. S. U Pinney of Madison afterward one of the Justices of the Supreme Court, had the active care and management of the case and the trail thereof.
The case came on at Sparta, Wisconsin, before Hon. R Bunn, without a jury. The facts were not disputed, and the only question to be decided, was a pure question of law.
On the part of the State, and Hutchinson it was claimed that the board never having approved Allenís bond, that a vacancy existed in the office, and that Hutchinson was rightfully elected to fill the vacancy.
On Allenís part it was claimed that the action of the board was arbitrary, that the bond he tendered was good as to form, and ample as to the sufficiency of the sureties.
Judge Bunn ruled with the State, holding that when the board refused to approved of a good and sufficient bond, it was Allenís duty, or at least his proper course, to remove the action of the county board to the courts for review, on a writ of Certiorari, that is was then too late to do that, and that the matter urged in his defense could not be given in the Quo Warranto action, and ordered judgment ousting Allen from the office.
It will be noted that Allen served two years as county treasurer for a term to which he was not elected, by the oversight of the attorneys for Dewhurst, the man who was elected; and that Allen through his attorneys not taking the proper course, lost a term of office, to which he was elected.
It was the law of compensation that intervened. Allen was somewhat in the position of the London pickpocket who returning home from an unsuccessful hard dayís work of pilfering, was accosted by his companion in crime in this wise;
" Well Jock what luck today?" "Even up, replied Jock, "I stole a jackknife and lost a handkerchief."
At the election in 1874, in addition to the election of W. C. Allen as county treasurer the following other county officers were elected or held over from the previous year:
County clerk, J. F. Canon; sheriff, Jacob Rossman; Register of deeds, W. T. Hutchinson; clerk of the court; L. J. Glass; county surveyor, Chas. E. Bussell; coronder, William Yorkston.
After assuming the duties of the county treasurer, Mr. Hutchinson resigned the office of register of deeds, and Herman Schuster was selected to fill that office.
Judge Dewhurst was elected assemblyman for the Jackson and Clark counties district; the previous year, we were represented by Mark Douglas of Melrose, Jackson county. Our member of the State senate in 1874 was R. C. Field, of Osseo.
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