State ex rel. Guernsey v. Meilike

• Decision Date: 22 March 1892
• Citation: 51 N.W. 875,81 Wis. 574
• Parties: STATE EX REL. GUERNSEY v. MEILIKE.
• Court: Wisconsin Supreme Court

81 Wis. 574

51 N.W. 875

STATE EX REL. GUERNSEY

v.MEILIKE.

Supreme Court of Wisconsin.

March 22, 1892.

Appeal from circuit court, Waupaca county; CHARLES M. WEBB, Judge.

Quo warranto by the state ex rel. F. M. Guernsey against Hasso A. Meilike to inquire by what authority he holds the office of mayor of the city of Clintonville. Judgment entered on a verdict that defendant had no right to the office. Defendant appeals. Affirmed.Charles Barber and Benj. M. Goldberg, for appellant.

Thorn & Guernsey, for respondent.

ORTON, J.

This is an action in quo warranto to inquire by what warrant the defendant holds the office of mayor of the city of Clintonville. The jury found that the defendant has no right to said office, and that he be ousted and excluded therefrom, and that the relator is and has been entitled to said office since April 4, 1890. This appeal is taken from the judgment entered according to said verdict. The only facts necessary to be stated are as follows: At an election held April 7, 1891, in said city, the defendant and one Jacob Bentz, were rival candidates, and were voted for, for the office of mayor. Afterwards, at the proper time, on the 9th day of April following, the canvassing board of said city canvassed the returns of the inspectors of said election, and caused an entry thereof to be made upon the records of the city clerk, and certified, to the effect that the defendant received 148 votes, and the said Jacob Bentz received 147 votes, for the office of mayor at said election. Proceedings were subsequently taken for a recount of said vote, but, as we view the case, they are immaterial. It seems that, when the canvassing board was counting the votes, they found in the box what appeared to them double votes folded together, as if cast by the same person. If these two votes, so folded, had both been counted, there would be one more vote than on the list kept of the names of those who had voted. The board, therefore, supposing these two votes were cast by the same elector, threw aside one of them, and counted the other, which was a vote for the defendant. The vote laid aside was afterwards found to be a vote cast for said Bentz. The board made two mistakes,--one in supposing that these two votes were voted together by the same person and for the same candidate, and the other in omitting from the said list the name of one Thomas, who had voted at said election. These facts appeared afterwards. The board made another mistake in casting aside the vote for Bentz and counting the vote for the defendant. According to their understanding, that these two votes were folded together and cast by the same person, they should have destroyed both of them, and not have counted either. Section 42, Sanb. & B. St. If they had both been counted, or if they had both been cast aside, the defendant and Bentz would have had a tie vote. The said Bentz offered to draw cuts, as in case of a tie vote, but the defendant refused. The above facts are shown by abundant proof. The facts are not so much contested as the proof of them. It is claimed by the learned counsel of the appellant that these facts could not be shown to impeach the record and returns of the board. If this...