State ex rel. Hawes vs. Pierce.

tion taken to the order was, that the clerk of the board of supervisors did not order a number of the papers containing such publication, sufficient to distribute one to each of the town clerks of the county, and did not so distribute them, as provided by sec. 31 of the statute (Tay. Stats., 300, § 39). The orders of the supervisors thus passed have all the force of positive law. They are in fact laws of the same character and effect as like acts passed by the legislature of the state, or as if the same acts had been so passed. As a public or general law, the order vacating the town could not be in force under the constitution until published; hence the pub. lication required by the statute could not be dispensed with. That section of the statute may be regarded as mandatory, because the constitution itself commands the act to be done, or declares that the law shall not be in force until it is done. It may be considered mandatory by force of the constitutional requirement. But the order of the board of supervisors vacating the town was duly published; and the question now is, whether its operation was suspended, or it fails to take effect, because the clerk neglected to procure a sufficient number of the newspapers containing it, so as to distribute one to the town clerk of each town in his county, and did not make such distribution.

The statute directing the clerk to make distribution is in these words: "Such clerk shall order a number of the papers containing any such orders or determinations, sufficient to distribute one to each of the town clerks of his county, and so distribute them; and such clerks shall, on receipt thereof, file the same in their respective offices." It will be observed that the statute does not make the force or operation of the orders and determinations of the supervisors dependent upon the obtaining and transmission of such newspapers. It contains no express words to that effect, but only in general terms imposes the duty upon the clerk. It is consistent with the language, and with what may be supposed to have been the intention of

State ex rel. Hawes vs. Pierce.

the legislature and its object in interposing the requirement, to say that the statute is merely directory. The object of the legislature appears to have been to furnish means and facilities for acquiring speedy and authentic knowledge and information by all the inhabitants of the county, of the orders and determinations of the supervisors. It was to provide permanent means and facilities of the kind, and at places easily accessible to all the inhabitants. The distribution by the clerk of the board of supervisors is like the distribution by the secretary of state, in book form, of the laws, acts and resolutions passed by the legislature, and apparently for the same purpose. The newspapers containing the orders of the supervisors, or the laws passed by them, and which are filed and preserved in the offices of the clerks of the several towns, take the place, so to speak, in this peculiar mode of legislation, of the books of laws enacted by the legislature, where that is the mode, and which are published and distributed under the direction of the secretary of state. Such appears to be the intent and purpose of the provision; and if it is, then it is obvious that the failure of the clerk to procure and distribute the papers could no more defeat the order of the supervisors, or the law enacted by them, than could the failure of the secretary of state to print and distribute the books defeat a law enacted by the legislature, which had been duly published in a newspaper so as to take effect under the constitution. This view leads to the conclusion that the statute is directory, and that the legislature so intended; and such is the opinion of this court. It is not to be supposed, without some provision clearly indicating it, that the legislature intended that the action of the board of supervisors should be rendered wholly inoperative and void by such subsequent omission or neglect on the part of their clerk, and not on the part of their clerk alone, but on the part of any one of the town clerks of any of the several towns in the county. It will be seen that, if the statute is held to be mandatory with respect to the clerk of the board of supervisors, it

State ex rel. Hawes vs. Pierce.

must likewise be so held with respect to the duty imposed upon the several clerks of the towns; and that if any one of them failed to receive the newspaper, or failed or neglected to file it in his office, it would be equally fatal to the order or action of the board of supervisors. It is impossible to believe that the legislature ever intended to clothe any one of these subordinate officers with power thus to veto or defeat the action of the board.

Our conclusion therefore is, that there was no town of Isabelle at the time of the election in question, and that the voters residing in the territory formerly constituting a town by that name had no authority to open a poll, and deposit, receive, canvass or return votes at such election. The election so held was irregular and void, and the acceptance of the return and canvass of the votes as from a town of that name, by the county board of canvassers, was unauthorized. The number of votes so counted by the county canvassers, and all purporting to have been cast for the defendant, and which resulted in the giving to him of the certificate of election, was fifteen. Strike out those fifteen votes, and add to the other votes lawfully given for the plaintiff the two votes improperly rejected in the first ward of the city of Prescott, and the plaintiff received a clear majority of all the votes cast in the county, even if we concede the illegality of the several votes given for him which the defendant claims to have been illegal. It is unnecessary to consider the questions of the legality of the last votes, or of any others, and we pass them unnoticed.

A question has presented itself to the mind of the court as to the right to further prosecute this action, and whether any judgment can be pronounced in it after the expiration of the term of office for which the relator was elected, and during which the defendant usurped and unlawfully held. Under the statute, the object of the action is not merely to oust the incumbent, but the right of the person lawfully entitled to the office may also be tried and adjudged; and if the defendant is

State ex rel. Hawes vs. Pierce.

found guilty of the intrusion, a fine may be imposed and costs recovered. It is also provided, if the relator is found entitled to the office, that he may recover by action the damages which he may have sustained by reason of the usurpation of the defendant. R. S., ch. 160, secs. 9, 10, 13, 15; 2 Tay. Stats., 181012, §§ 13, 16, 19, 21. It has been held in several well considered cases, that the resignation of an officer, or the expiration of his term, will not prevent an information to test his title, if commenced prior thereto, from being afterward prosecuted to final judgment. The People v. Loomis, 8 Wend., 396; The People v. Hartwell, 12 Mich., 508; Hunter v. Chandler, 45 Mo., 452; Commonwealth v. Smith, 45 Pa. St., 59. In the last named case it was held that the right of officers de fucto could only be tested by quo warranto brought in the lifetime of their office, and that the title to a past and defunct office could not be tried in a proceeding instituted after the term had expired. And in Hunter v. Chandler, it was held that no action could be maintained by the person lawfully entitled to an office, against one who had usurped and intruded into it, for the recovery of the fees and emoluments which such intruder had received, until the person so entitled had first established his right in the proceeding by quo warranto, although this was admitted to be contrary to the general current of the authorities.

This action was instituted during the lifetime of the office claimed by the relator, and into which it is charged the defendant had intruded, and hence there is no difficulty in the way of its being prosecuted to final judgment, notwithstanding the expiration of the term.

The judgment must be reversed, and cause remanded for a new trial according to law.

By the Court.-Sɔ ordered.

Campbell vs. Sherman.

CAMPBELL VS. SHERMAN.

MARITIME LIEN. (1, 2) Proceedings against vessel for pilots' wages: State courts have no jurisdiction. Ch. 184, Laws of 1869.

SHERIFF. (3, 4) When protected by writ, and when not. (5) His rights against party suing out writ. (6) Presumption as to form of writ.

1. An act of a state legislature cannot create a maritime lien, nor confer upon a state court jurisdiction to enforce such a lien by a proceeding against the vessel.

2. A proceeding against a vessel to enforce a contract for pilot's wages is a subject of admiralty jurisdiction, and is not within the jurisdiction of a state court. So much of ch. 184, Laws of 1869, as purports to confer such jurisdiction, is void.

3. Where the subject matter of a suit is within the jurisdiction of the court, but it has not acquired jurisdiction in the particular case, there is reason and authority for holding that the process of the court, fair on its face, protects the officer.

4. But the warrant of a circuit court of this state, commanding a sheriff to seize and safely keep a vessel therein named, to answer any lien which may be established against her in favor of the person named as plaintiff in such writ, for pilot's wages, will not protect the sheriff. 5. Where the act commanded by a writ is a trespass, the officer is not bound to perform it; he is not liable to the party who sued out the writ, for refusing to execute it; and he may protect himself by requiring from such party a bond of indemnity.

6. In an action against the sheriff for seizing and detaining such vessel, where the answer alleges the process of the court as a defense, without setting out the warrant in form, it must be presumed that the warrant was in the form usual in such cases, and therefore that it contained recitals showing that the suit was one of which the court had in fact no jurisdiction.

APPEAL from the Circuit Court for Eau Claire County. Action for the unlawful seizure and conversion by the defendant, sheriff of Eau Claire county, through his deputy, and under color of his office, of a steamboat with its tackle and furniture, the property of the plaintiff. The complaint demands damages for the value of the property and for the loss caused plaintiff in his business by the seizure.