State ex rel. Hampel v. Mitten

• Decision Date: 15 March 1938
• Citation: 227 Wis. 598,278 N.W. 431
• Parties: STATE ex rel. HAMPEL v. MITTEN, Sheriff.
• Court: Wisconsin Supreme Court

227 Wis. 598

278 N.W. 431

STATE ex rel. HAMPEL

v.MITTEN, Sheriff.

Supreme Court of Wisconsin.

March 15, 1938.

Appeal from an order of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge.

Affirmed.

This was an action commenced on May 25, 1937, under the provisions of chapter 12, § 12.01 et seq., entitled Corrupt Practices Relating to Elections, for the purpose of declaring void the election of Edward J. Mitten to the office of sheriff of Milwaukee county, in ousting and excluding him from such office and declaring the office vacant. The complaint alleged that plaintiff was an elector of the city of Milwaukee, and that on the dates mentioned in the complaint he and defendant, Mitten, were candidates for the office of sheriff of Milwaukee county, the election for which office was held November 3, 1936, Mitten receiving upon that election a total of 116,425 votes, and plaintiff a total of 95,067 votes. On information and belief plaintiff alleges that on October 23d, in West Allis, defendant addressed an audience of several hundred people and, in the course of his address, made the following statement concerning plaintiff:

“In order to be sure that my words will not be twisted, I will read from manuscript.

“‘I desire to say here a few words about a love pirate and demoralizer of families. When families, churches and homes will be desecrated, there will prevail in society the same situation, which was described in today's issue of the Wisconsin News. News headlines say that five thousand priests and nuns have been murdered by the reds.

“‘The other night, October 21st, my Socialist opponent speaking over Station WTMJ, declared that he is a model of morality. He can be compared to a thief, who breaks into a home at night. He would have gotten away with the lies had I not been a deputy sheriff in Judge Fritz's court, where a case was tried. My opponent was then sworn and examined. He stammered and squirmed like an eel in a net when he tried to explain the letter given below. I have photostatic copies of this letter written to a married woman.”’

It is alleged that defendant then read a letter written on December 19, 1918, by plaintiff, while a soldier at Camp Grant to a woman in Milwaukee county previously married, but who, for some time prior thereto, had been absolutely divorced from her husband. The address is alleged to have closed with an appeal to the voters not to elect a man of this character to such an important office as that of sheriff. Plaintiff further alleged that at a political meeting held in Bay View the speech was repeated, and that on October 24, 1936, defendant caused the contents of the manuscript from which the defendant read in his address to be printed as a news article in the Nowiny Polski, a Polish language newspaper of daily circulation in the county; that prior to the general election defendant requested representatives of the Milwaukee Journal and Kuryer Polski Daily, newspapers of general circulation, to publish the contents of this address, which said newspapers refused to do; that defendant made no investigation to determine the truth or falsity of the charges; that the statements were willfully made by defendant, were false, slanderous, and malicious, and known to be such by defendant; that defendant made said statements for the purpose of bringing about his election as sheriff of Milwaukee county and the defeat of plaintiff for this office; that the statements were made for political purposes and were intended to affect the voting for the office of sheriff by the electors of the county, and that they constituted violations of section 12.17 of chapter 12, Stats., entitled Corrupt Practices Relating to Elections. It is further alleged on information and belief that the unlawful acts of defendant tended to affect the voting of the electors of Milwaukee county in the election for sheriff. For the purpose of expediting the cause, the complaint was amended by stipulation to include certain election statistics claimed by defendant to disclose that defendant's statements had no effect upon the result of the election. A general demurrer was interposed to the complaint and on August 17, 1937, an order was entered sustaining the demurrer. Plaintiff appeals.Gerald P. Hayes, of Milwaukee, for appellant.

Rubin, Zabel & Ruppa, of Milwaukee (W. C. Zabel, of Milwaukee, of counsel), for respondent.

Orland S. Loomis, Atty. Gen., and Warren H. Resh, Asst. Atty. Gen., amicus curiae.

FAIRCHILD, Justice.

[1] It was the view of the trial court that the case was governed by State ex rel. Pelishek v. Washburn, 223 Wis. 595, 270 N.W. 541, 543; that in order to state a cause of action the complaint must show that the minds of the electors were so affected by the alleged false statements that the real will of the electors cannot be ascertained; that the election statistics affirmatively show that the will of the electors can be ascertained notwithstanding defendant's alleged violation; and that therefore the complaint states no cause of action. The trial court relied principally on section 5.01(6), which provides:

“This title shall be construed so as to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to comply with some of its provisions.”

It was considered that the rule of the Pelishek Case, supra, was that a mere violation of a provision of the Corrupt Practices Act does not of itself result in deprivation of office; that the dominant purpose of the act is to protect the public and assure that the true choice of the voters is expressed; and that one indulging in a forbidden practice takes a chance of losing office if it should appear even doubtful whether the will of the electors has been expressed by the result; that where, however, the actual will of the electors can be ascertained, that will must prevail under subsection (6) of section 5.01. The court analyzed the election returns and concluded: (1) That plaintiff was one of eight candidates running on the Progressive ticket, all of whom were defeated by candidates running on the Democratic ticket; (2) that plaintiff received the third highest vote of the candidates of his party for various offices, and that defendant received the smallest number of votes of any candidate on his ticket; and (3) that in the Polish wards, where the circulation of the statements was most current, plaintiff had a relatively high vote compared to that in other wards or sections. The conclusion was that even if the statements were false and known by defendant to be so, they did not influence the electorate to the prejudice of plaintiff or prevent ascertainment of the will of the electorate.

As was pointed out in the Pelishek Case, chapter 12, constituting the Corrupt Practices Act, taken in connection with section 5.01(6) offers substantial difficulties of construction. Literally construed, chapter 12 provides for a judgment of ouster in the case of any violation of the act, however technical or insubstantial. However, section 5.01(6) requires the chapter to be so construed as to give effect to the will of the electors if that can be ascertained from the proceedings notwithstanding informality or failure to comply with some of its provisions. It was pointed out in the Pelishek Case that section 5.01(6) was expressly made applicable to chapter 12, and that however difficult the task of the court, effect must be given to it, and it must be held to have some modifying effect upon the provisions of chapter 12. The difficulty is to ascertain its intended effect in relation to all of the numerous violations set forth in chapter 12, some serious and substantial, others relatively trivial. In the Pelishek Case, the alleged violation was of section 12.14(2), which provides that every person who is a candidate for any municipal office, the income of which shall exceed $300, who in his own name or that of any other person owns any financial interest in any newspaper or periodical circulating in part or in whole in Wisconsin shall, before any such newspaper shall print any matter (other than that provided in subsection (1) of the same section) which is intended or tends to influence directly or indirectly any voting or primary election, file in the office of the county clerk of the county in which he resides a verified declaration stating the newspaper or periodical in which he has any interest or control and the nature and extent of such interest and control. The complaint in the Pelishek Case alleged that defendant was the editor and publisher of a weekly newspaper published in Clintonville and having a wide circulation; that he had a large financial interest in the paper and was one of the three candidates for the office of mayor; that he failed to file the verified statement required by section 12.14 (2); and that on three occasions he published statements and other matter in his newspaper which tended directly to influence citizens in voting for him and against other candidates for mayor. It was held that while section 12.24(1), if literally applied, would render an election void for any violationof the act, section 5.01(6) must be considered to modify the literal calls of the statute. The court said:

“It is considered, therefore, that before a judgment of ouster can be entered under the provisions of section 12.24(1), there must be a finding that the act of omission or commission complained of so affected or tended to affect the mind of the electors that the real will of the electors cannot be ascertained. If the actual will of the electors can be ascertained, then the provisions of subsection (6) become operative, and a judgment should not be entered which sets aside the will of the electors and defeats their choice for the office in question.”

Applying these principles, this court held that the complaint was defective in not alleging facts tending to show that the...