McCarthy v. Hoan
| Decision Date | 28 April 1936 |
| Citation | 221 Wis. 344,266 N.W. 916 |
| Parties | MCCARTHY v. HOAN, MAYOR, ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Milwaukee County; John C. Kleczka, Judge.
Modified and affirmed.
Action for declaratory relief commenced on March 13, 1935, by Robert S. McCarthy, plaintiff, against Daniel W. Hoan, Robert G. Schuffenhauer, John F. Cassidy, and Edward N. Liersch. By this action plaintiff sought to construe section 10.01, Stats., and to have declared the right of the Progressive Party to a representative on the election commission of the city of Milwaukee from and after December 4, 1934, which was the date of publication of the certificate of the election of the board of state canvassers for the state of Wisconsin for the general election held November 6, 1934. The matter was tried to the court and judgment duly entered on August 21, 1935, adjudging that there was no present vacancy on the board of election commissioners and that the Progressive Party has no present right to representation upon this board. Plaintiff appeals.
The material facts will be stated in the opinion.George A. Bowman and Carl J. Ludwig, both of Milwaukee (Walter D. Corrigan, Sr., of Milwaukee, of counsel), for appellant.
Max Raskin, City Atty., of Milwaukee (Mary Eschweiler, of Milwaukee, of counsel), for respondents.
This appeal presents no disputed facts. Plaintiff is a member of the Progressive Party and a resident of the city of Milwaukee. He brings this action on his own behalf and on that of electors of the Progressive Party in the city of Milwaukee and state of Wisconsin. The defendant Daniel W. Hoan is the mayor of Milwaukee. The other defendants are members of the election commission. The defendant Schuffenhauer, representing the Socialist Party, was appointed for a term of three years commencing July 1, 1932. The defendant Cassidy, representing the Democratic Party, was appointed for a term of three years commencing July 1, 1933. The defendant Liersch, representing the Republican Party, was appointed for a term of three years commencing July 1, 1934. As a consequence of the general election of November 6, 1934, the three dominant political parties in the state of Wisconsin are the Progressive, Democratic, and Republican Parties. Tested by the vote at that election in the city of Milwaukee, the Democratic, Progressive, and Socialist Parties are the dominant political parties in that city.
Plaintiff contends: (1) That membership in a dominant political party is a continuing qualification for any member of the commission, and that when the party of which one of the commissioners is a member ceases to be a dominant party, his qualifications for office cease instantly, whether his term has expired or not; and (2) that the term “dominant” relates to dominance in the state at large and not in the city of Milwaukee. The Progressive Party is a dominant party in either view, and if plaintiff's first contention is valid, a determination of the second is only important in ascertaining whether the Republican or Socialist commissioner should be...
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