State ex rel. Hawley v. Bd. of Sup'rs of Polk Cnty.

• Citation: 60 N.W. 266,88 Wis. 355
• Parties: STATE EX REL. HAWLEY v. BOARD OF SUP'RS OF POLK COUNTY ET AL.
• Decision Date: 02 October 1894
• Court: United States State Supreme Court of Wisconsin

88 Wis. 355

60 N.W. 266

STATE EX REL. HAWLEY

v.BOARD OF SUP'RS OF POLK COUNTY ET AL.

Supreme Court of Wisconsin.

Oct. 2, 1894.

Appeal from circuit court, Polk county; R. D. Marshall, Judge.

Mandamus on the relation of C. A. Hawley against the county board of supervisors of the county of Polk and Manfred Smith, clerk of the county. From an order overruling a demurrer to the return, relator appeals. Reversed.

This is an appeal from an order overruling a demurrer to the return of the respondents to an alternative writ of mandamus issued to compel a meeting of the county board of supervisors of Polk county to consider petitions that had been submitted in respect to the question of removal of the county seat of that county from Osceola to Amery to the qualified voters as required by law, and to receive and count as upon petition in favor of such submission the names appearing on a certain petition referred to in said writ, as well as 147 names on a certain other like petition filed November 21, 1893, and to submit the question of removal of the county seat from said Osceola to Amery in the manner provided by law, or that they show cause, etc. The material question was whether 1,016 names of qualified electors appearing upon the poll lists at the last general election in the county had been signed to said petitions for such purpose. It was alleged, in substance, in the relation and writ, that a petition signed by 1,410 qualified signers had been presented, called “Exhibit A” in said writ, in favor of submission, and that, by comparison of this petition with the poll lists of the several election districts, it appeared that some of the legal voters signed said petition, using their initials, whereas their given names appeared in full upon the poll lists, and some of the signers had added or omitted an initial in signing said petition to their names as appearing upon the poll lists; that a proposition that the chairman of each town be allowed to view the poll lists and petition for the purpose of identifying the names of the petitioners was voted down. The board struck from said petition 136 names on the ground of such differences between them as appeared on said petition and on said poll lists. An exhibit was annexed to said relation and writ, showing such differences; and it is charged that the supervisors refused to take, or allow to be taken, any steps, testimony, or evidence to identify such names as they so appeared as the voters whose names appeared on the poll lists; that 164 other names were stricken from said petition on the ground that they could not be found on the poll lists of the election districts wherein and for which they were signed, and the names of 17 others as having signed it before and after signing a revocation of said petition; that 129 others signed a revocation, and their names were stricken from said petition, leaving, as it is alleged, 1,100 names of legal signers thereon which should have been counted in favor of submission; that another petition, in form similar to Exhibit A, containing in fact 148 names of voters of said county, none of whom had signed such other petition, was filed for the same purpose with the board before its refusal to submit the question, but it refused to consider such petition, although it contained a demand on the part of the signers that their names should be counted for removal; that all said 148 names were on the poll lists of the several voting districts at the last general election; that after reviewing Exhibit A, and before taking action thereon, a number of voters whose names appeared on said petition came before the board, and asked to be permitted to make proof of the identity of their names as they appeared upon the petition with themselves, and with their names as the same appeared upon the respective poll lists, but the board refused to allow any proof of such fact; that the board struck the names of three voters from said petition, although they made affidavit they had never signed any petition or remonstrance against removing the county seat to Amery; and that the board refused to submit the question of removal to a vote of the electors. The return of the respondents denies that the petition, Exhibit A, contained 1,410 names of legal voters as appeared from the poll lists; admitted that there were the names of 2,540 legal voters on such lists; that the motion that each chairman should be allowed to view the petition, with a view to determining the names thereon, was lost, and that they determined not to count, or consider as a part of said petition, the 136 names signed in the manner specified in the relation and writ; and that the board refused and declined to act upon the petition containing 148 names, but denied all knowledge or information sufficient to form a belief as to whether the names thereon were those of legal voters upon the poll lists, and, except as admitted, denied every allegation in the petition. It was further averred that the petition containing 1,410 names was referred to a committee of eight members; that they fairly and deliberately compared the petition with the poll lists of the several voting precincts of the county for the last general election, and made a report showing the result of such investigation, in substance, that there were 85 names where there is a difference in initials, in spelling, or where there is an extra initial; that there were 51 names where there was a difference of an initial for a name, or of a name for an initial; that there were 1,093 names that compared with the poll lists; that there were 164 names not found on the poll lists of the towns where they appeared to have been signed; that there were 17 names signed twice,--that is to say, before and after signing a revocation; that the total number of names on revocations was 222, of which 125 were of names counted on the petition, and 93 not so counted; that the report was acted upon with care and deliberation, after the members of the board had had an opportunity to consider and understand said petition, report, and findings, and they thereupon determined that the petition did not contain the requisite number of names of voters to authorize a submission of the question of removal, and passed the following resolution: “Resolved by the county board of the county of Polk that, whereas the statement of the committee on county seat shows 1,093 names on the petition, and the request and demand that 129 of those be taken off and deducted from the 1,093,...