Chairman in Town of Worcester, In re

• Decision Date: 01 February 1966
• Parties: In re Recount of Ballots for Office of CHAIRMAN IN TOWN OF WORCESTER, Price County, etc. Matt B. GRADINJAN, Respondent, v. Joseph BOHO, Appellant. *
• Court: Wisconsin Supreme Court

Page 557

139 N.W.2d 557

29 Wis.2d 674

In re Recount of Ballots for Office of CHAIRMAN IN TOWN OF WORCESTER, Price County, etc Matt B. GRADINJAN, Respondent, v. Joseph BOHO, Appellant. ^*

Supreme Court of Wisconsin.

Feb. 1, 1966.

O'Melia & Kaye, Rhinelander, for appellant.

Nikolay, Jensen & Scott, Abbotsford, for respondent.

BEILFUSS, Justice.

The issues presented in this appeal are:

1. Did the respondent, Gradinjan, properly and timely appeal to the circuit court?

2. Were the three questioned ballots absentee ballots?

3. Is the provision of sec. 11.62, Stats., that absentee ballots not containing the name or initials of the issuing municipal clerk shall not be accepted or counted mandatory rather than directory?

Sec. 6.66(3), Stats., provides:

'Within 5 days after the recount determination of said board, any candidate, or any elector who voted upon such constitutional amendment or proposition, as the case may be, aggrieved thereby may appeal therefrom to the circuit court of said county, by serving a notice in writing to that effect upon such other candidates or persons who filed written notices of appearances with said board. Such notice shall be filed with the clerk of the circuit court, together with an undertaking by the appellant, with surety and in an amount to be approved by the clerk of said court or the judge thereof, conditioned for the payment of all costs taxed against said appellant. The circuit judge shall forthwith issue an order directing the clerk of said county, or of said city, town or village or the secretary of the board of election commissioners to transmit to the clerk of said court forthwith all ballots, papers and records affecting such appeal and fixing a time and place for hearing thereon, in open court or at chambers, or before a referee, not later than 5 days from the making of such order. Such order shall be served upon the county clerk, or the city, town or village clerk, or secretary of the board of election commissioners, as the case may be, and all such other candidates or persons who have appeared before said board. A reference may be ordered upon any or all questions. At the time and place so fixed the matter shall be summarily heard and determined and the costs taxed as in other civil actions.'

The election was on April 6, 1965, and the board of canvassers' certificate after recount was dated April 13, 1965.

The brief filed on behalf of the appellant Boho asserts that '[n]o papers or process of any kind were filed with the clerk of court until April 19, 1965 when only the court's order of April 16 was filed, but no notice of appeal, or any averment of error, when even now remain apparently unfiled.'

An examination of the record on appeal does not bear out these assertions. The record pages 1 through 4 reveal that the notice of appeal and proof of service of such notice on Boho and his attorney were dated and filed in the office of the clerk of circuit court on April 16, 1965. The record further reveals the order for hearing is dated April 16 and filed April 19, and the undertaking for costs is dated April 16 and filed April 19.

We agree with the trial court wherein it stated:

'The respondent-contestee, Joseph Boho, had moved to dismiss this proceeding because of an alleged failure to commence it within the time allowed by law and for a failure to comply with filing requirements. The governing statute is Sec. 6.66(3), Wis.Stats. Such statute requires only that, as to timeliness, a notice of appeal shall be served upon 'such other candidates or persons who filed written notices of appearance with said board' within five days after the determination of the Board of Canvassers. This was done. The statute further provides that the notice and an undertaking be filed with the Clerk of Circuit Court. No time is expressed within which such filing must be done. The timely filing of a petition and the other provisions of statute to which counsel refers have to do with applications for a recount addressed to the Board of Canvassers and have no application to a review by this court. The motion to dismiss is denied.'

At the trial there was a question as to whether the three questioned ballots were in fact absentee ballots. It is undisputed that the ballots in question do not have upon them at any place the initials or the name of either the ballot clerks or the town clerk and that these ballots do have a very faintly visible imprint of the seal of the town clerk.

Counsel for Boho contends that the town clerk only assumed that the questioned ballots were absentee ballots and that this evidence is incompetent and insufficient to support a finding that they are absentee ballots.

Again the record does not bear out this factual contention.

At the trial Mr. Joe Bonkowski, the town clerk, testified as follows:

'BY MR. BADER:

'Q Mr. Bonkowski, did you make any determination, did you inspect these ballots on the date of April 9th?

'A I didn't handle the ballots on that day, just glanced over them on the table. All I did was check on the tally sheet.

'Q When the fact was raised three of these ballots had no signature on these ballots, by yourself, you realized that didn't you when you saw the ballot your signature was lacking?

'A Yes.

'Q Why did you feel then that it was your signature that should have been on the ballots instead of the initials of the two ballot clerks?

'A Well, these absentee ballots are set out or give out----

'Q You assume that these are absentee ballots, is that correct?

'A Yes.

'MR. KAYE: I think he is making an assumption.

'THE COURT': You assume these were absentee ballots. You don't know whether they are or not, do you?

'A Those are absentee ballots, I am positive.

'THE COURT: How do you know?

'A On the other ballots, besides these three, there is a seal on there and there are no seals on there whatsoever. I put the town seal on there.

'BY MR. BADER:

'Q You are suppose to put the town seal on there?

'A You are suppose to put the name on them when they issue the ballot, which wasn't done intentionally.

'MR. BADER: I have no further questions.

'RECROSS EXAMINATION

'BY MR. KAYE:

'Q You say that you know these were absentee ballots?

'A Yes, sir.'

The finding of fact by the trial court that the questioned ballots were absentee ballots and that they did not bear the name or the initials of the town clerk as required by secs. 11.57 and 11.61, Stats., is amply supported by the credible evidence. The testimony of Mr. Bonkowski on this issue was not refuted or successfully challenged. Certainly this finding cannot be disturbed on this appeal as being against the great weight and clear preponderance of the evidence.

The most important question before us is whether the pertinent provision of sec. 11.62, Stats., namely, 'if the ballot does not contain the name or initials of the clerk of the issuing town, * * *, such vote shall not be accepted or counted,' is mandatory or directory.

Sec. 11.62, Stats., in its entirety, is as follows:

'Deposit of ballot in ballot box. At any time between the opening and closing of the polls on such election day the inspectors of election of said precinct shall open the outer or carrier envelope only, and announce the absent voter's name. In case the inspectors find the affidavit executed, that the applicant is a duly qualified elector of the precinct and that the applicant has not voted in person at said election, they shall open the envelope containing such voter's ballot in such manner as not to deface or destroy the affidavit thereon and take out the ballot or ballots therein contained without unfolding or permitting the same to be unfolded or examined and, after verification that the ballot has been indorsed by the issuing county, town, city, village clerk, or the secretary under s. 11.66, deposit the same in the proper ballot box or boxes and enter the absent voter's name or voting number after his name on the poll book or list, the same as if he had been present and voted in person. In case such affidavit is found to be insufficient, or that the applicant is not a duly qualified elector in such precinct, or that the ballot envelope is open, or has been opened and resealed, or that the ballot envelope contains more than one ballot of any one kind, or if the ballot does not contain the name or initials of the clerk of the issuing town, city, village or county, or the secretary under s. 11.66, such vote shall not be accepted or counted. Every ballot not counted shall be indorsed on the back thereof 'rejected' (giving reason therefor). Each rejected ballot shall be reinserted in the affidavit envelope in which it was originally delivered and such affidavit envelopes and ballots shall be enclosed and securely sealed in an envelope clearly marked for rejected absentee ballots on which the inspectors shall indorse 'defective ballots' with a statement of the precinct in which and the date of the election at which they were cast, signed by the inspectors and returned to the same officer and in the same manner as by law provided for the return and preservation of official ballots voted at such election. All absentee affidavit envelopes which have been opened and ballots deposited in the ballot boxes must also be returned in a carrier envelope which is clearly marked 'used absentee affidavit envelopes' and shall be returned to the officer who issued such absentee ballots.'

The rule for the construction of election statutes as to whether mandatory or directory, adopted by this court in Sommerfeld v. Board of Canvassers (1955), 269 Wis. 299, 69 N.W.2d 235, and Olson v. Lindberg (1957), 2 Wis.2d 229, 85 N.W.2d 755 is as follows:

"'The difference between mandatory and directory provisions of election statutes lies in the consequence of nonobservance: An act done in violation of a mandatory provision is void, whereas an act done in violation of a directory provision, while improper, may nevertheless be valid. ...