Albert B. Geilfuss eight thousand nine hundred and seventy-two (8,972) votes; that they were the only persons voted for for said office, and said plaintiff received a majority of three thousand three hundred and eighty-four votes for the same. That said votes were duly canvassed by the common council of the City of Milwaukee on the twelfth day of April, 1880, and said plaintiff Albert B. Geilfuss was then and there duly declared elected to said office, and was, on the thirteenth day of April, 1880, duly notified of said election. That said plaintiff, on the nineteenth day of April, 1880, duly filed in the office of the clerk of said city in his official bond as treasurer of said city, for the term of office then next ensuing, with good and sufficient sureties, and duly executed, witnessed and acknowledged, as required by law. That said plaintiff is a native of Germany; that he came to said City of Milwaukee in the year 1853 with his parents, he being then six years of age; that he has resided in said city ever since that time, and does now there reside; that long before his majority his father declared his intention to become a citizen of the United States in due form of law, and thereafter continuously exercised the rights of an elector in the State of Wisconsin. That on the twenty-first day of April, 1880, said plaintiff was duly admitted to citizenship of the United States, in the municipal court of Milwaukee County, in due form of law. That afterwards, and on the same day, he took and subscribed the oath of office as such treasurer prescribed by law and the Constitution of this State, and filed the same, duly certified by the officer who administered the same, with the clerk of said city. That thereafter, and on the same day, the common council of said city, then and there being in regular and lawful session, by resolution duly passed, accepted and approved said official bond filed by said plaintiff. That thereafter, and on the twenty-second day of April, 1880, said Albert B. Geilfuss demanded of said defendant, then still in the possession of said office, that he deliver the said office, and all the books, papers and property thereto belonging to him, the said Geilfuss, which said defendant then and there refused, and still doth refuse to do. And the plaintiff shows that said defendant does unlawfully hold and usurp the said office. Wherefore the plaintiff demands judgment that said defendant is not entitled to said office, and that he be ousted and excluded therefrom, and that said plaintiff, Albert B. Geilfuss, is entitled thereto, and to all the rights and emolulents thereof, and for costs against the defendant."

The defendant demurred to the complaint on alleged ground that the same did not state facts sufficient to constitute a cause of action. The circuit court sustained the demurrer. From the order sustaining the same this appeal is taken.

The provisions of the city charter referred to in the opinion are as follows: Chapter 184, Laws 1874, p. 314, subc. 2: "Section 2. The annual municipal election in said city shall be held on the first Tuesday in April of each year.

3.

*

* The mayor, treasurer,

** Sec. comp

*

troller and attorney shall be elected on the first Tuesday of April, A. D. 1874, being the first municipal election under this act, and biennially thereafter. The officers so elected shall enter upon the duties of their respective offices on the third Tuesday of April in the year of their election, and shall hold their respective offices for the term of two years, and until their successors shall be elected and qualified. Sec. 8, (as amended by sec. 3, c. 144, Laws 1875.) * * All persons entitled to vote for county or State officers, and who shall have resided in the city for one year next preceding the election, and for ten days in the ward where they offer to vote, shall be entitled to vote for any officer to be elected under this act, and to hold any office thereby created. Sec. 12. * Within one week after any election the common council shall meet and canvass said returns, and declare the result as it appears from the same, and the clerk shall forthwith give notice of his election to each officer elected. Sec. 13. * In case of a tie vote,

* or when any officer elected or appointed for the city shall remove his residence without the limits of the city,

or

when any such officer shall refuse or neglect, for ten days after notice of his election or appointment, to qualify and enter upon the discharge of the duties of his office, the office shall be deemed vacant."

Jenkins, Eliott & Winkler, for appellants: Joshua Stark, for respondent.

LYON, J., delivered the opinion of the court:

Only two cases have been adjudicated by this court which have any direct bearing upon the questions to be determined on this appeal. These are State ex rel. Off v. Smith, 14 Wis. 497, and State ex rel. Schuet v. Murray, 28 Wis. 96. In the first of these cases it was held to be a fundamental principle of our government that a person not an elector of the State is ineligible to hold a public office therein, although our Constitution and statutes do not expressly so ordain. In the latter case it was held that, in the absence of any constitutional or statutory provision on the subject, such ineligibility goes only to the holding of the office, and hence that, if an alien who is not an elector receives a plurality of votes for an office, he may lawfully hold and exercise the same if, by naturalization or declaration, his disability is removed. before the commencement of the term of office to which he has been elected.

It is obvious that these cases are not in conflict. In the former the disability of the defendant, Smith, who had received a plurality of votes for the office of sheriff, had not been removed when the action was brought, which was after the term of office had commenced. In the latter case the disability was removed before the commencement of the term, and the point decided was not involved in the former case, and is not mentioned in the opinion by the late chief justice. Instead of conflicting, the two cases are in accord; the latter adopting to its full extent the rule of the former. The court adhere to both decisions.

It is claimed that in this case the rule of the Schuet Case has been changed by sec. 3, chap. 144, Laws 1875, p. 249, quoted in the statement of the case. We do not think so. That section merely specifies the qualifications of voters for city and ward officers, and provides that such voters shall be entitled to hold any office created by the act. It is not perceived that these provisions affect the rule of the Schuet Case. Had the section provided that such voters should be entitled to be elected to any charter office, there might be some ground for the claim that the principle of that case is not applicable here.

The main question in the case is whether the disqualification of the plaintiff, Geilfuss, to hold the office of city treasurer was removed in time to entitle him to hold it. That is to say, (adopting the phraseology of the Schuet Case,) was he admitted to citizenship before the term of office commenced? The election was held April 6th, and the votes were canvassed by the common council and the result ascertained April 12th, which was within the time limited therefor by the city charter. Geilfuss was duly notified of his election April 13th. He was admitted to citizenship, and thereby became a voter of the city, April 21st, and afterwards, on the same day, duly filed his official oath and bond; and on the next day, April 22d, he demanded the office of the defendant, who refused to surrender the same to him.

Section 3, of sub-chapter 2 of the city charter, (Laws of 1874, c, 184, p. 314,) provides that the persons elected to certain city offices (the office of city treasurer being one of them) “shall enter upon the duties of their respective offices on the 3d Tuesday of April in the year of their election, and shall hold their respective offices for the term of two years, and until their successors shall be elected and qualified." If the charter contained no other provision on the subject, it would seem that the above provision fixes the commencement of the term of office of the treasurer and other officers named, absolutely on the 3d Tuesday in April, which, in April last, was the 20th day. In that case the removal of the disability of Geilfuss on the 21st day of that month would have been too late. But sec. 12 of the same subchapter of the charter in effect provides that a person elected to any such office shall have ten days after he is notified of his election in which to qualify, and also provides that the office shall be deemed vacant in case the person elected thereto fails to qualify within that time. The clear intent and meaning of the provision is that there is no vacancy in the office until the expiration of the ten days after notice, unless, perhaps, as was the case in State ex rel. Finch v. Washburn, 17 Wis. 658, the person elected should before that time positively refuse to qualify for, or accept the office.

These two sections are in pari materia, and must, therefore, be construed together. Thus construed, we are of the opinion that the term of office of the city treasurer does not necessarily commence on the 3d Tuesday in April, but that it may commence on that day, or on any day thereafter within ten days after the notice of election was given

to the treasurer elect, pursuant to the charter. There is no vacancy until the ten days have elapsed, and we think it can not be successfully maintained that the new term has commenced until there would be a vacancy in case the officer elect should fail to qualify. The term of the incumbent continues, and he holds the office as of that term until the time given by the charter to his successor to qualify has expired. If his successor does not qualify within that time, or perhaps, if before the expiration of that time he absolutely refuses to accept the office, as the same must be filled by some one, the charter designates the incumbent as the person who shall fill it, but he then holds as of the new term, and only until some one can be elected to serve the balance of such term.

So, in the present case, notwithstanding Geilfuss (if under no disability) might have qualified and entered upon the duties of the office on the 20th of April, and had he done so his term of office would then have commenced, still we are all of the opinion that, inasmuch as the law gave him until the 23d of that month, inclusive, in which to qualify, it was competent for him to do so on the 21st, and that his official term did not commence until he so qualified.

It follows from these views that, under the averments of the complaint, Geilfuss, was a voter and eligible to hold the office of city treasurer when his term of office commenced. Hence, the case is ruled by the judgment in State ex rel. Schuet v. Murray.

This case was placed upon the present calendar and heard at this term at the request of both parties. Although our decision is adverse to the defendant, it is but justice to him to say that his consent to have the cause decided many months before it could have been heard in the regular course of practice is evidence that he has made this contest in good faith, and for the sole purpose of obtaining an authoritative determination of the right of Geilfuss to the office before surrendering to the latter so important a public trust.

The order of the circuit court sustaining the demurrer to the complaint is reversed, and the cause will be remanded for further proceedings according to law.

LIABILITY OF COUNTY FOR NEGLIGENCE OF OFFICERS-INDIVIDUAL LIABILITY—

PLEADING.

HOLLENBECK v. COUNTY OF WINNEBAGO.

Supreme Court of Illinois, May, 1880.

1. An action will not lie against a county for injuries occasioned by the negligence of its servants or agents in respect of the performance or non-performance of their duties.

2. In an action for damages for the death of a workman killed by the falling of a court house while in process of erection, the declaration averred that "whereas the defendants, on, etc., were possessed and had the su

pervision and control of a certain building, * which building was then and there being erected by and under the supervision and control of the defendants, etc., * who ought to have kept the same in good and safe condition while the same was being so erected, * yet the defendants, not regarding their duty in that behalf, while they were so possessed and had the supervision and control of the erection of the building: Held, that it did not sufficiently appear from these averments, in order to charge the individual defendants, that they had exclusive control in the furnishing of materials, selecting the plans and erecting the building, and such exclusive control was essential to fix their liability.

Appeal from the Appellate Court of the Second District.

P. C. Warner, for appellant; J. C. Garver and Wm. Lathrop, for appellee.

CRAIG, J. delivered the opinion of the court:

This was an action on the case brought by Hannah Hollenbeck, administratrix of the estate of Almarin Hollenbeck, deceased, against the County of Winnebago, Duncan Ferguson, F. E. Latham, Anthony Haines, Hugh Mackey, J. B. Merritt, John R. Herring and Jonathan R. Kirk, to recover for the death of Almarin Hollenbeck, who was killed by the falling of a portion of the courthouse, while it was being erected, the deceased at the time being engaged as a workman on the building. The declaration contained five counts. The first count was as follows: "For that, whereas, the defendants, before and on the 11th day of May, A. D. 1877, were possessed and had the supervision and control of a certain building situate on a certain piece or parcel of land in the County of Winnebago, aforesaid, before that time dedicated to the use and purpose of a court-house square or site, and which building was then and there being erected by and under the supervision and control of the defendants as and for a courthouse for the county aforesaid, and in pursuance of a resolution of the board of supervisors of Winnebago county, aforesaid, before that time duly passed therefor, and ought to have kept the same in good and safe condition while the same was being so erected as aforesaid; yet the defendants, not regarding their duty in that behalf while they were so possessed and had the supervision and control of the erection of the court-house building aforesaid, to-wit, on the 11th day of May, A. D. 1877, there wrongfully and negligently suffered the same to be and remain in a bad and unsafe condition, and to be erected in a negligent and unsafe manner, and the main pavilion to said court-house building to rest, on three sides thereof, upon iron girders, without sufficient lateral stiffness, and the ends of said girders resting upon the front wall to said main pavilion without bearing upon said front wall; and certain iron plllars, supporting certain parts of said building, to stand on certain brick piers insufficient in size and strength to support the weight placed upon said iron pillars, by means whereof a large portion of said building fell, and the plaintiff's intestate, who was then and there lawfully engaged as a brick-mason in labor upon the main pavilion, and upper portion of said court-house building, in the erection thereof, and while the said plaintiff's intestate, to-wit, Almarin Hollenbeck, with all due care and diligence, was so engaged in the per

formance of his said labor on said building, as aforesaid, was cast down with great force and violence, and buried in the ruins of said building as so fell, as aforesaid, and was, thereby, then and there killed. And the plaintiff avers that the said Almarin Hollenbeck left him surviving, the plaintiff, his widow, and one Frank Hollenbeck, his minor son and next of kin, who are still living; and that by reason of the death of the said Almarin Hollenbeck, as aforesaid, the said plaintiff has been and is deprived of her means of support; and the said Frank Hollenbeck has been and is deprived of his means of support and education."

The fifth count charges the defendant county lawfully engaged in the erection of a court-house for Winnebago County, and the other defendants lawfully engaged as a building committee in supervising and controlling the erection of the building under an appointment by the board of supervisors, and that defendant Latham was engaged as superintendent under a like appointment of the board. That defendants had supervision and control of the building so far as to select suitable plans, employ suitable material, and create suitable structures therefor, suitable both in size and material to make the building safe and fit for use by persons having business on the same during its erection. Then follows the averment that the defendants carelessly and negligently suffered the building to be erected on a weak and insufficient structure; that it fell of its own weight; also suffered unsafe and insufficient plans to be used in the erection of the building, and employed an incompetent superintendent, etc., by means whereof, etc.

The second count is similar to the first, except it is therein averred that the building was being erected in pursuance of the terms of a written contract, duly made, by reason whereof it was the duty of the defendants to adopt a good and sufficient plan, and to make a contract for the erection of a safe building. Then follows the breach, negativing these duties, and averring wherein the building was unsafe, etc.

In the third count it is averred that the County of Winnebago, together with the other defendants, who were a building committee, chosen by the board of supervisors, entered into a contract in writing with one Richardson for the erection of the court-house, and by the terms of the contract defendant, the county, by its board, committee agent or superintendent, had the right at all times to visit and inspect the building and require any change in the construction of the building; that defendant Latham was, by a vote of the board, chosen superintendent, and acted as such; that defendants had the control of the contractor, and power to control the use of materials, by reason whereof defendants ought to have kept the building reasonably safe for persons lawfully on same. Then follows the breach, specifically negativing the allegations of duty.

The fourth count is in substance like the second. A demurrer, both general and special, was interposed by the defendants to each count of the declaration which the court sustained, and the plaintiff elected to abide by the declaration.

Judgment was rendered against her for costs, to reverse which she appealed. The only question to be determined is whether a legal cause of action is set out in either count of the declaration.

It is contended that the seven individual defendants may be held liable, even if an action cannot be sustained against the county. We will, therefore, consider - First, the liability of the individual defendants; second, that of the county. It is no doubt true, where a person is employed as a laborer in the erection of a building, and receives a personal injury through the negligence of the owner or person who has the exclusive charge of erecting the building and furnishing the material, he may recover for the injury, where he has exercised due care to guard against the danger. But we find no averment in the declaration that the individual defendants were the owners of the building, or that they had the exclusive control in furnishing materials, devising plans, and erecting the building. The declaration, it is true, undertakes to charge against the individual defendants and the County of Winnebago joint negligence in not preparing proper plans for the court-house, and in not using the materials in the manner they should be used in order that a building might be erected as safe and strong as should have been erected to conduce to the safety of the laborers engaged in working on the building; but it is not averred that these individual defendants selected these plans, or had any legal right to select them, or that they gave the plans their sanction or approval; nor is it averred that the individual defendants selected the material from which the building was erected, nor did they direct as to the manner in which it should be used.

These individual defendants may have acted with the county, and at the same time had no control over the plans of the building or the quality of material to be used, or the manner in which it should be used, and if this was the case it is difficult to perceive how they could be individually liable. Again, under section 23, ch. 34, Rev. Laws 1874, the powers of the county as a body politic or corporate shall be exercised by a county board. Section 26 of the same statute declares: "It shall be the duty of the county board of each county to erect, or otherwise provide, when necessary, and the finances of the county will justify it, and keep in repair, a suitable court-house, jail, and other necessary county buildings." Under this statute the county board could not confer the power.

In the first count of the declaration it is averred that the county and the individual defendants had the supervision and control of the building which was being erected for a court-house, but the count is manifestly bad as to the individual defendants, for the reason it fails to aver that they were owners of or had the exclusive control. It does not appear from the averments of this count, as it should, that the individual defendants had any power whatever over the plans of the building, or the character of the material to be furnished. Suppose these defendants were acting jointly with the county, it by no means follows that the county board had parted with its power or delegated its

authority to them. For aught that, each averment of the count may be true, and at the same time the individual defendants may have been powerless to change a single plan, or give any direction in regard to the character or quality of the material of which the building was being construed. So far as appears from this count they had no more authority than the deceased, who was employed as a laborer on the building; and under such circumstances to hold them individually liable for matters over which they have no control would be a violation of the fundamental principles of the law.

We are now come to the fifth count. Here it is averred that the County of Winnebago was engaged in the erection of the court-house, and six of the individual defendants were engaged as a building committee in supervising and controlling the erection of the building, under an appointment from the board of supervisors, and that defendant, Latham, was engaged as superintendent under a like appointment. Then follows the averment that all of the defendants had the supervision and control of the building so far as to select suitable plans, employ suitable material, and erect structures suitable in size and material to make the building safe, etc. This count is liable to the same objection as the first in this-that it fails to aver that the individual defendants could exercise the exclusive control. But it is liable to another objection. These individual defendants, as appears from the averments of the count, derived their power, whatever it was, from a resolution of the county board, under which they were appointed. Now, it was not enough for the pleader to aver, as his conclusion, that the supervision and control they had gave them the authority to make or alter plans or furnish suitable material, but he was required to aver the facts so that the court could see whether a responsibility rested upon them, or whether a duty to be observed arose from these facts. The authority under which they acted should have been fully and clearly set out.

The mode of declaring when the defendant is under any particular obligation of duty is stated by Chitty, vol. 1, p. 383, in the following language: "When the plaintiff's right consists in an obligation on the defendant to observe some particular duty the declaration must state the nature of such duty, which, we have seen, may be founded either on a contract between the parties or in the obligation of law arising out of the defendant's particular character or situation." In Bartlett v. Crozier, 17 Johns. 438, which is an action against an overseer of highways to recover damages for a breach of duties, as to the sufficiency of the declaration, it is said: "The duties of the overseer are all created and prescribed by the act regulating highways, and if

an action will lie it must be founded upon a breach of the duties there enjoined. The declaration ought to have stated specially the cause of action arising under the statute. It ought to have stated specially every fact requisite to enable the court to judge whether there has been a breach of duty." So, here, the powers and du

ties of the board of supervisors are clearly defined by statute, and if that board appointed a committee and clothed it with certain power to act, so that a duty was imposed upon it, each and every fact in connection with the appointment and authority should have been clearly set out in the declaration. As respects the second and fourth counts of the declaration they are so similar to the first that what has been said in considering that count will govern them. As to the third, it is not so different from the others as to render a separate discussion of its averments necessary. We are satisfied that neither of the counts are sufficient to impose a liability on the individual defendants.

This brings us to the consideration of the liability of the county, which is the more important question in the case. If the action can be maintained, does it lie at common law or by statute? As respects the common-law liability of a county, for the negligence of its officers or agents, the question has frequently arisen in different forms in the courts of England and this country, and, as we understan ́i the authorities. we regard the question well settled that there is no common-law liability. Dillon in his work on Municipal Corporations, sec. 762, after a discussion of the question and a reference to authorities, concludes as follows: "Accordingly in the different States, organizations such as counties, townships, school districts, road districts, and the like, though possessing separate capacity and power to levy taxes and raise money, have been very generally considered not to be liable in case or other form of civil action for neglect of public duty, unless such liability be expressly declared by statute." See, also, 2 Addison on Torts, 1298, where the same doctrine is announced.

At an early day in Massachusetts, in Riddle v. Proprietors, etc., 7 Mass. 169, Parsons, C. J. in delivering the opinion of the court, said: "We distinguish between proper aggregate corporations and the inhabitants of any district who are by statute invested with particular powers without their consent. These are in the books sometimes called quasi corporations. Of this description are counties and hundreds in England, and counties, towns, etc., in this State. Although quasi corporations are liable to information or indictment for a neglect of public duty imposed upon them by law, yet it is settled. in Russell v. Inhabitants of the County of Devon, that no private action can be maintained against them for a breach of their corporate duty, unless such action be given by statute." In the late case of Hill v. Boston, 122 Mass. 344, the court in an elaborate opinion and an exhaustive review of the authorities, both English and American, adhere to the same doctrine. Referring to the case cited supra in connection with the one of Mower v. Leicester, 9 Mass. 247, it is said: "These cases have ever since been considered as having established in this Commonwealth the general doctrine that a private action cannot be maintained against a town or other quasi corporation for a neglect of a corporate duty, unless such action is given by statute.

In Bartlett v. Crozier, 17 Johns. 438, which was an action against an overseer of highways at the suit of an individual, for an injury which he sustained in consequence of the neglect of the overseer to keep a bridge in repair, it was held, Chancellor Kent delivering the opinion of the court, and citing Russel v. The Men of Devon as an authority, that the action would not lie. In New Jersey it has been held that counties and towns are not liable to private actions for injuries occasioned by defective highways and bridges, although towns and counties, under the statute of this State, are made corporations, with power of suing and being sued. Cooley v. Freeholders of Essex, 3 Dutch. 415; Livermore v. Freeholders of Camden, 5 Dutch. 245. The same rule of law is declared in Michigan. Com. of Highways v. Martin, 4 Mich. 557.

The question whether an action could be maintained against a county for a failure to keep in repair a bridge on a highway, a duty enjoined on the county by statute, first arose in this State in Hedges v. County of Madison, 1 Gil. 567, and it was held, citing with approval the English case of Russell v. Men of Devon, that although counties were by statute authorized to sue and be sued, the action would not lie against a county unless expressly given by statute. In Schuyler County v. County of Mercer, 4 Gil. 20, the question arose whether a county, in the absence of a statute conferring the right, could be sued, and it was expressly held that independent of a special statute, counties have no common law right to sue, nor can they be sued. In Town of Waltham v. Kemper, 55 Ill. 346, an action was brought by the plaintiff against the town to recover damages for personal injuries received on a public highway, which the town had suffered to be and remain out of repair, and which, under the statute, it was the duty of the town to keep in good condition. It was there held that while such corporations as villages, incorporated towns and cities are liable to private actions for injuries which an individual may sustain by reason of the neglect of the corporate authorities to keep their streets and sidewalks in repair, there is a distinction between that character of corporations and towns established by law as civil divisions of a county, the latter not being liable, either by the common law or any statute of the State, to private actions occasioned by the neglect of the town officers to keep the highways in repair. In this case, Town of South Ottawa v. Foster, 20 Ill., was overruled, and the earlier cases on the question approved. The same doctrine was announced in Bussell v. Steuben, 57 Ill. 35. In White v. County of Bond, 58 Ill. 298, where an action on the case was brought by the administrator of White, deceased, against the county, for wrongful neglect in keeping a bridge over a certain creek in good repair, by means whereof the deceased lost his life, after referring to and approving the former decisions of the court on the same subject, it was held that no action could be maintained against the county.

Again, in Symonds v. Clay County, 71 Ill. 355, an action on the case was brought to recover for damage done plaintiff's land by means of fire,