State ex rel. Crain v. Acker
| Decision Date | 05 April 1910 |
| Citation | 142 Wis. 394,125 N.W. 952 |
| Parties | STATE EX REL. CRAIN v. ACKER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.
Action, in the nature of quo warranto, by the State, on the relation of Edward P. Crain, against Ruby M. Acker. Judgment for respondent, and the relator appeals. Affirmed.
Action in the nature of quo warranto between rival candidates for the office of county superintendent for Fond du Lac county at the election held April 6, 1909. After some amendment of pleadings the action was transformed into a recount of all ballots cast, whereby respondent was found to have a majority of 16 of concededly valid ballots. There remained 40 ballots of which the printed form and marking as to county superintendent were as follows:
+-----------------------------------------------------------------------------+
¦ ¦Vote for one. ¦ ¦
+-------------------+------------------------------------------------------+--¦
¦For County ¦Ruby M. Acker. A non-Partisan Superintendency ¦[ ¦
¦ ¦ ¦] ¦
+-------------------+------------------------------------------------------+--¦
¦Superintendent of ¦Edward P. Crain. A non-Partisan Superintendency ¦[ ¦
¦Schools. ¦ ¦] ¦
+-------------------+------------------------------------------------------+--¦
¦ ¦......................................................¦? ¦
+-----------------------------------------------------------------------------+
The relator claimed count of said ballots for himself. Each party moved for direction of a favorable verdict. Respondent's motion was granted, and verdict directed in her favor, whereon judgment was rendered, from which the relator appeals.D. F. Blewitt and Duffy & McCrory, for appellant.
Maurice McKenna and T. C. Downs, for respondent.
DODGE, J. (after stating the facts as above).
The trial court was right in holding that the 40 ballots above described were not necessarily to be disregarded or ignored merely because they were not marked in exact accordance with the directions of the statute. The constitutional right of an elector to have any reasonable expression of his intention in voting given effect is of the most sacred character, and no intent to thwart it can be ascribed to the Legislature, except upon unambiguous expression. While such purpose has been found in modern ballot legislation of some of the states, it is not declared in our statutes, and a ballot marked in such manner that the intention of the elector can be gleaned therefrom should be received, and counted so as to effectuate that intent. This purpose is manifest in the statute, and has been declared by this court. Section 57, subd. 3, St. 1898, section 7, c. 583, Laws 1907; State ex rel. Blodgett v. Eagan, 115 Wis. 417, 91 N. W. 984;State ex rel. Dithmar v. Bunnell, 131 Wis. 198, 110 N. W. 177. The question, therefore, before the trial court was one of fact, as to whether the several voters casting the questionable ballots intended to vote for the relator. That intent must be resolved from the ballot itself in connection with the extrinsic facts in regard to the situation so far as they throw any light upon the subject. If from those ballots so considered any reasonable mind might by legitimate inference, as distinguished from mere guess or conjecture, ascertain such intent, the court's duty was to submit it to the jury. Such therefore is the question to be considered here.
The appellant cannot derive aid from subdivision 3, § 57, St. 1898, chapter 583, Laws 1907, which provides: “If an elector shall mark his ballot with a cross-mark * * * or any other marks * * * within the square after, at the right of the name of any candidate, or at any place within the space in which the name appears indicating an intent to vote for such...
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McNally v. Tollander
...right. Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1377, 12 L.Ed.2d 506 (1964); State ex rel. Crain v. Acker, 142 Wis. 394, 395, 125 N.W. 952 (1910).7 See n. 3.8 In many jurisdictions post-election relief depends on the existence of a specific statute. See, e. g., Application of Mof......
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McVeigh v. Spang, 27531.
...misplaced marks, the finding of the court that this ballot was a vote for contestee is sustained. The case of State v. Acker, 142 Wis. 394, 125 N. W. 952, 953, 20 Ann. Cas. 670, cited and followed in our cases above cited, is not so persuasive as might at first glance appear. The Wisconsin ......
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Thompson v. Boling
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Thompson v. Boling
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