State ex rel. Anderton v. Kempf

• Decision Date: 11 October 1887
• Citation: 69 Wis. 470,34 N.W. 226
• Parties: STATE EX REL. ANDERTON v. KEMPF.
• Court: Wisconsin Supreme Court

69 Wis. 470

34 N.W. 226

STATE EX REL. ANDERTON

v.KEMPF.

Supreme Court of Wisconsin.

October 11, 1887.

Appeal from circuit court, Milwaukee county.

This is a civil action in the nature of quo warranto, commenced by summons and complaint pursuant to section 3463, Rev. St. It was brought to try the right of the relator, James J. Anderton, to the office of alderman of the Sixth ward in the city of Milwaukee, which office, it is alleged in the complaint, the respondent, John J. Kempf, has usurped and intruded into, and unlawfully holds and exercises the same, and the privileges thereto belonging, to the exclusion of the relator. It is alleged in the complaint that at an election duly held on the first Tuesday in April last, in that ward, for the election of an alderman for the term of two years then next ensuing, the relator was duly and lawfully elected by the legal and qualified electors of that ward to such office, and that he was eligible thereto; that there were three election precincts established in that ward, in which 850 legal votes were cast for the celator for such office, and not to exceed 843 votes for the respondent; that in the second precinct 648 votes were cast for alderman, 347 of which were cast for the respondent, and 301 for the relator; but that the inspectors of election in said precinct made return to the city clerk of said city that but 615 votes were cast for alderman therein, of which number the respondent received 336, and the relator 279. This return, with the returns from the other precincts, (the accuracy of which is not questioned,) gave the respondent a majority of four votes. The complaint then alleges that due proceedings were held under and pursuant to chapter 464, Laws 1885, for a recount of the votes in the second precinct, and that the same were recounted by the inspectors of such precinct, who determined, reported, and returned to the city clerk that the whole number of votes cast therein was 616, of which the relator received 282, and the respondent 334. This corrected return would give the relator in the whole ward a majority of one vote. It is also alleged that 32 ballots cast for alderman in that precinct were by mistake deposited in the box used for the reception of ballots for judicial officers cast at said election, of which number the relator received 19, and the respondent 13, of said votes. If these votes were counted, the relator would have seven majority in the ward. It is then charged that the respondent, knowing the premises, wrongfully and unlawfully obtained the certificate of election to said office from the city clerk of said city, and that April 11, 1887, he usurped and intruded himself into said office, and has ever since unlawfully held, used, and exercised the same, to the exclusion of the relator, and against his rights, and in contempt of the people of the state of Wisconsin. The usual judgment of ouster against the respondent is demanded, and that the relator is entitled to such office. To his complaint the respondent interposed a demurrer on the grounds (1) that the court has no jurisdiction of the subject of the action; (2) that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrer on the first ground assigned, and the relator appeals from the order sustaining the same.

J. C. McKenney, for appellant.

Johnson, Rietbrock & Halsey, for respondents.

LYON, J.

Conceding the jurisdiction of the court, we think the complaint states a cause of action. It contains all the averments required by section 3468, Rev. St., in such a case. But it is objected that it contains no allegation that the steps required by chapter 464, Laws 1885, to preserve the ballots, were taken. The statute required the ballots to be preserved and disposed of in a particular manner by the proper officers, and it must be presumed, even without an averment, that those officers performed their duty. Hence the second ground of demurrer is not well taken.

The controlling question in the case relates to the jurisdiction of the court over the subject of the action. Section 6, c. 324, Laws 1882, amendatory of the charter of the city of Milwaukee, (chapter 184, Laws 1874,) provides that “the common council shall be the judge of the election and qualification of its own members.” The argument is that this provision excludes the jurisdiction of the courts to adjudicate between contesting claimants for the office of alderman, and vests that power solely in the common council. It must be conceded that there are some decisions of courts of high authority which seem to approve this doctrine. Among these are the cases of Com. v. Leech, 44 Pa. St. 332; Lamb v. Lynd, Id. 336; Com. v. Meeser, Id. 341; Peabody v. School Committee, 115 Mass. 383;People v. Metzker, 47 Cal. 524. But the great weight of authority, and we think the better reason, is opposed to such doctrine. We think the rule is satisfactorily established that unless the statute conferring the jurisdiction upon...