State ex rel. Bancroft v. Frear

• Decision Date: 06 December 1910
• Citation: 128 N.W. 1068,144 Wis. 79
• Parties: STATE EX REL. BANCROFT v. FREAR, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

144 Wis. 79

128 N.W. 1068

STATE EX REL. BANCROFT

v.FREAR, SECRETARY OF STATE.

Supreme Court of Wisconsin.

Oct. 15, 1910.

Opinion filed Dec. 6, 1910.

Original suit by the State, on relation of Levi H. Bancroft, against James A. Frear, Secretary of State. Judgment for relator.

Siebecker, Kerwin, and Timlin, JJ., dissenting.

Olin & Butler, for plaintiff.

Frank L. Gilbert, Atty. Gen., and Russell Jackson, Deputy Atty. Gen. (Walter D. Corrigan, of counsel), for defendant.

PER CURIAM.

The following propositions are decided in this case:

(1) The provisions of the general election law contained in section 34, St. 1898, relating to the filling of vacancies caused by declination, death, or other disability of a nominated candidate, are not imported into the primary election law, and hence do not apply to primary elections.

(2) Under the allegations of the complaint, it must be held that the fact of the death of Mr. Tucker was brought home to the knowledge of the great mass of the electors of the state before the holding of the primary and that the great majority of the electors who placed a cross opposite his name upon the primary ballot did so with such knowledge.

(3) Votes which are in form cast for a deceased person by voters who know the fact of his decease cannot be considered as votes for or against any person, but must be regarded as so much blank paper.

(4) It follows that, under the allegations of the complaint, the relator received the greatest number of votes cast at the primary as a republican candidate for the office of Attorney General, and under subdivision 1 of section 18 of the primary law is entitled to have his name placed upon the official ballot as such candidate.

Demurrer overruled and judgment ordered for relator for relief by injunction as prayed in the complaint.

SIEBECKER, KERWIN, and TIMLIN, JJ. (dissenting).

We are of the opinion that section 34 of the statutes of 1898, pertaining to general elections, is made applicable to primary elections. The Legislature provided in the primary election law (section 25, c. 451, Laws 1903) that: “The provisions of the statutes now in force in relation to the holding of elections, the solicitation of voters at the polls, the challenging of voters, the manner of conducting elections, of counting the ballots and making return thereof, and all kindred subjects, shall apply to all primaries in so far as they are consistent with this act, the intent of this act being to place the primary under the regulation and protection of the laws now in force as to elections.”(Italics ours.) This section in terms makes section 34 of the Statutes of 1898, relating to general elections, applicable to primary elections, and therefore the following provision in cases where a candidate for nomination on the official ballot at such election dies governs this case: “If the nominee die after the ballots are printed, and no nomination shall be made as herein provided, the votes cast for him shall be counted and returned, and if he shall receive a plurality the vacancy shall be filled as in case of vacancies occurring by death after election.” Under these provisions, the votes cast for Mr. Tucker are legal ballots, and must be counted and returned, and, when so counted and returned, the result shows that neither of the other candidates for nomination for the office of Attorney General of the state received as great a number of votes as were cast for him; hence the relator is not entitled to have his name placed on the official ballot as the nominee of his party.

And thereafter the following statement of the case was made and the opinion of the court delivered by Judge BARNES:

This suit is brought originally in this court to compel the defendant to certify the name of the relator to the different county clerks of the state as the candidate to be placed upon the official ballot of the Republican party for the office of Attorney General, to be voted for at the general election to be held in November, 1910. The complaint alleges: That a primary election was held in Wisconsin on November 6, 1910. That more than 30 days prior to the holding of such election the relator and Frank T. Tucker and Henry A. Gunderson each duly filed in the office of the Secretary of State his nomination papers as a candidate for the office of Attorney General. That thereafter, and within the time required by law, the Secretary of State transmitted to each county clerk a list containing the name and post-office address of each person whose nomination papers had been filed in his office, and was entitled to be voted for at the primary, together with the designation of the office for which he was a candidate, and the party or principle which he represented. That among the names so transmitted were those of the relator and of said Tucker and Gunderson. That thereafter, and 10 days before the holding of the primary election, the county clerks of the respective counties caused the names so certified to be printed upon the official ballot and distributed. That thereafter, on September 1, 1910, said Frank T. Tucker died. “That, notwithstanding the death of said Frank T. Tucker, one C. H. Crownhart, a prominent supporter of one of the factions in the Republican party, of which faction said Tucker, when in life, was a member, sent 169 different telegrams, addressed to 169 different prominent supporters of said faction in different parts of the state of Wisconsin, of which the following is a sample: ‘Madison, Wis., 9--3--'10. Fred E. Olen, Florence, Wis.--Fine steam ahead. Few days more and La Follette will sweep state. Fight hard for Legislature and state officers. We can win complete victory. Urge votes for Tucker. Committee can fill vacancy. Get evidence of any corruption for use later. Reports are fine. Telegraph this message to active workers every precinct. C. H. Crownhart.’ That before the holding of said primary, and especially and particularly on September 2 and 3, 1910, it was generally stated and published in the different newspapers throughout the state that said Tucker was dead, and that, in case that he received the greatest number of votes at said primary, the Republican State Central Committee could fill the vacancy, and that such statements were, in substance, also recited in circular letters, which circular letters were addressed to many parts of the state, and a true and correct copy of said circular letters is in the words and figures following, to wit: ‘Progressive Republican. La Crosse, Wis. Sept. 2nd, 1910.--Dear Sir: Every Progressive certainly earnestly desires to see Progressive principles triumph in this campaign. To accomplish this Progressive men must be nominated to make our laws in nation and state and to enforce them as state officers. Herewith will be found a sample ballot on which an X is printed after the names of candidates whom we believe to be thoroughly progressive. No attempt has been made to indicate a choice among the candidates for county offices, all of whom are well known in the county. Frank T. Tucker, candidate for Attorney General, is dead, apparently driven to his death by a political conspiracy against him. His name will be on the official ballot and every friend of good government should put an X after it. No true Progressive can vote for either of his opponents. Let nothing keep you from the polls on Tuesday next. Go without fail and see that your neighbor goes. You may be certain that every Tory voter will be out and that every influence which money can exert will be at work against Progressive candidates and principles. It is for you to decide which shall triumph, men or money. Progressive Republican Committee.’ ” That on September 26, 1910, the said canvassing board canvassed the returns certified to them, and that as to the office of Attorney General said board certified that the whole number of votes cast for the office of Attorney General was 168,925, of which the relator received 58,196, said Gunderson received 47,187, and said Tucker received 63,482, and that the scattering votes for such office amounted to 60. That it appeared from the returns that said Tucker received the greatest number of votes cast for the office. That it further appeared from an affidavit on file that said Tucker died on September 1, 1910, and that the death of said Tucker occurred after the ballots used at said primary were printed, and after the time for filing nomination papers had expired. The canvassing board then certified that there was a vacancy in the nomination for the office of Attorney General, to be filled as provided by law. The complaint further sets forth that on the fourth Tuesday in September the candidates for the various state offices and for the senate and assembly, nominated by the Republican party at said primary, together with the senators of said party whose term of office extended beyond the first Monday in January, 1911, met and formulated the state platform of said party, and that the members of said platform convention passed a resolution indorsing and recommending C. H. Crownhart as the candidate for the office of Attorney General to fill the alleged vacancy; that the State Central Committee of the Republican party at a meeting held on October 3, 1910, nominated said C. H. Crownhart as a candidate for the office of Attorney General on the Republican ticket to be voted for at the general election to be held on the first Tuesday in November, and certified said nomination to the Secretary of State; that it is the duty of the said Secretary of State to certify to the county clerks of the different counties of the state not less than 14 nor more than 20 days before the general election to be held in November the name of each person nominated for any office; that said Secretary of State claims that there was a vacancy in the candidacy for the office of Attorney General, and that it was within the power and was the duty of the State Central...