State ex rel. Leonard v. Rosenthal

• Citation: 123 Wis. 442,102 N.W. 49
• Parties: STATE EX REL. LEONARD v. ROSENTHAL.
• Decision Date: 10 January 1905
• Court: United States State Supreme Court of Wisconsin

123 Wis. 442

102 N.W. 49

STATE EX REL. LEONARD

v.ROSENTHAL.

Supreme Court of Wisconsin.

Jan. 10, 1905.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Quo warranto by the state, on relation of George M. Leonard, against August Rosenthal. From a judgment for relator, defendant appeals. Reversed.

This is an action of quo warranto brought by the relator to remove from the office of assessor of the village of West Allis the respondent, August Rosenthal. The complaint, after alleging the corporate existence of the village of West Allis, and the fact that the relator was a resident and elector of said village on the 7th of April, 1903, alleges that an election for village officers was held on the last-named date, and that prior to said election the relator was duly nominated for the office of assessor of the village on the Republican ticket, and that the defendant was the nominee for said office on the People's ticket, and that no other candidates were voted for at said election; that at said election 456 ballots were found to have been cast by the canvassers, of which 8 were defective and not counted; that the relator received 218 legal votes; that there were cast for the respondent at said election a large number of void and fraudulent votes, the total number of which “the relator is unable to state, but that the same exceeds thirty”; that 29 persons, whose names are given, voted at said election for the defendant and the People's ticket who were, for various reasons, not qualified electors of said village; that various persons fraudulently attempted to, and did, colonize men in said village for the purpose of voting at said election, who were not qualified electors of said village, and succeeded in procuring said persons to vote the People's ticket; that the total number of votes cast for assessor was 436, including those cast by persons not qualified electors of the village; that the 218 votes lawfully cast for the relator was a majority of all the legal votes cast for the office of assessor, and that the relator was thereby duly elected; that on April 15, 1903, relator was requested by the inspectors of election to draw lots for the office, the said inspectors having returned 218 votes cast for the defendant, and having declared the election to be a tie; that the relator refused to draw lots, for the reason that he had been legally elected, and that thereupon a person was appointed by the inspectors to draw lots in his place, and that the defendant was declared elected; that the relator duly filed his oath of office and qualified as assessor on the 15th of April, and on the 16th of April made demand upon the defendant for said office, which was refused, and the said defendant still retains the same. The complaint further alleges that he petitioned the Attorney General to bring this action, and that he refused, and demands judgment declaring that the defendant is not entitled to said office, and that he be ousted therefrom, and that the relator be admitted thereto. The defendant, by answer, alleged that the whole number of ballots counted by the inspectors for the office of assessor of the village was 436, of which the relator received 218, and the defendant 218, whereupon the inspectors of election ordered lots to be drawn for the office, upon which drawing the defendant was duly declared elected to said office. The defendant further alleges that he received the greatest number of votes cast by duly qualified electors for the office, and was legally elected thereto. and duly qualified therefor, and is now legally holding the said office.

The action was tried before a jury, and a special verdict rendered as follows: “(1) What was the total number of legal votes cast by the duly qualified electors of the village of West Allis at the village election holden on the 7th of April, 1903, for the office of assessor? A. (426) four hundred and twenty-six. (2) What was the total number of legal votes cast by the duly qualified electors of said village of West Allis at said election for the relator, George M. Leonard, for the office of assessor? A. (214) two hundred and fourteen. (3) What was the total number of legal votes cast by the duly qualified electors of said village of West Allis at said election for the respondent, August Rosenthal, for the office of assessor? A. (212) two hundred and twelve. (4) Were any illegal votes cast at said election for the office of assessor? A. (10) ten. (5) If you answer the preceding question in the affirmative, how many, if any, of such illegal votes were cast for the relator, George M. Leonard? A. (4) four. (6) If you answer the fourth question in the affirmative, how many, if any, of such illegal votes were cast for the respondent, August Rosenthal? A. (6) six.” Upon this verdict, judgment of ouster, with costs, was rendered in favor of the relator, and the defendant appeals.Edgar L. Wood, for appellant.

H. L. Eaton, for respondent.

WINSLOW, J. (after stating the facts).

The appellant's contentions will be considered seriatim:

1. It is provided by section 3468, Rev. St. 1898, among other things, that in actions of this nature it shall be necessary for the relator to state in his complaint “the actual number of legal votes cast for the relator and for the defendant.” The complaint before us does not state, either directly or by implication, the actual number of legal votes cast for the defendant. Where a statute imperatively requires a complaint to state a certain fact, such averment is essential to the cause of action. M. E. Church v. N. P. R. Co., 78 Wis. 131, 47 N. W. 190. The requirement above named was first incorporated in our law by chapter 127, p. 129, Laws 1869; hence the decisions prior to that statute, such as State ex rel. v. Brunner, 20 Wis. 62, holding that it was not necessary to state in the complaint the number of votes given for each candidate, do not apply. The demurrer ore tenus to the complaint should therefore have been sustained.

2. There were a number of witnesses called by the relator who did not live in the village at the time of the election, but went into the village some weeks afterward, who testified that they then made systematic inquiries at the various manufacturing establishments and boarding houses in the village, as well as of residents of the village, as to whether certain of the alleged illegal voters were known to reside in the village on election day. These witnesses were then allowed to testify, against objection and exception, that, from such investigation, they were not able to find that such parties resided in the village on the day of the election. That this evidence is strictly hearsay evidence cannot be successfully denied. Indeed, some of it was the second degree of hearsay, if such an expression may be coined, for the reason that it was based upon like investigations of other persons, who stated their results to the witnesses who were on the stand, who then gave them at secondhand to the court. We recognize the great practical difficulty in proving the fact of nonresidence, but we have not been able to convince ourselves that this difficulty justifies so serious an infraction of the rule excluding hearsay evidence, nor are we referred to any authorities so holding. In State v. Olin, 23 Wis. 309, it was held that evidence by residents of the village that no such persons as some whose names appeared on the poll list as having voted were known by them to have resided in the village is sufficient evidence to go to the jury upon the question whether such votes were illegally cast. It is said in McCrary on Elections (4th Ed.) § 469, that witnesses are often called to testify that persons whose names appear on the poll list are not known to them to be residents of the voting precinct. “This kind of evidence is...