State ex rel. Lochschmidt v. Raisler

• Decision Date: 13 December 1907
• Citation: 114 N.W. 118,133 Wis. 672
• Parties: STATE EX REL. LOCHSCHMIDT v. RAISLER.
• Court: Wisconsin Supreme Court

133 Wis. 672

114 N.W. 118

STATE EX REL. LOCHSCHMIDT

v.RAISLER.

Supreme Court of Wisconsin.

Dec. 13, 1907.

Appeal from Circuit Court, Outagamie County; John Goodland, Judge.

Action by the state, on the relation of Adolph Lochschmidt, against Albert A. Raisler. From an order overruling a demurrer to the complaint, defendant appeals. Reversed and remanded, with directions.

Appeal from order overruling demurrer to complaint, which states that the relator and defendant were rival candidates at the election of November, 1906, for the office of county clerk of Outagamie county; that relator received the greatest number of legal votes cast for the office, for which he was duly eligible; that, according to the county canvass, there were for defendant 3,453 and for relator 3,399 votes, which included certain alleged illegal votes of Oneida Indians, of which 74 were canvassed for the defendant and 27 for the relator, and that the certificate of election was issued to the defendant; that there were returned by the inspectors of the various precincts defective ballots cast for said office which were not counted or canvassed; that said so-called defective ballots were not defective in fact, and a large majority thereof were legal ballots cast and voted for relator and should have been counted and canvassed for him, and were sufficient in number and majority to have elected him; also, that a large number of ballots properly marked in favor of relator were not counted or canvassed in his favor, but in favor of defendant, or were not counted and canvassed at all, whereas the same should have been counted for relator and would have resulted in a majority for him and in his election; that by the canvass of the board of county canvassers defendant appeared to have a majority of 54 votes, but that relator received the greatest number of votes cast for said office, to wit, a majority of at least 40, and is entitled to the certificate of election; also, that the defendant has received and accepted the certificate from the county clerk, claims to have been duly elected and will qualify and enter upon and occupy and receive the emoluments of said office for the term commencing in January, 1907. The prayer of the complaint is that there be a recount of the votes; that the action of the county board of canvassers in canvassing, and the county clerk in issuing certificate, be cancelled and annulled; “that defendant be adjudged debarred and excluded from holding said office and the privileges and franchises thereof”; and that relator be entitled to have said office. The action was commenced about the 15th day of December, 1906, a general demurrer served January 3, 1907, and order overruling the same entered January 14, 1907, from which the defendant appeals.A. M. Spencer and Albert H. Krugmeier, for appellant.

Joseph Roemer and Henry D. Ryan, for respondent.

DODGE, J. (after stating the facts as above).

The character of the action that relator has attempted to institute in this case is thrown in considerable doubt, both by his complaint and by the contentions in his brief. Apart from statute, the only method known to courts for the trial of title to a public office, other than prima facie, was at common law by writ of quo warranto, and is, under our statutes, by an action in the nature thereof prescribed and regulated by section 3466 et seq., St. 1898. McRary on Elections, §§ 393, 425. In this form of action, as is well understood, the court tries the true merits of the controversy, namely, whether the incumbent has been legally elected, not merely the question whether he has by the various other tribunals having to do with an election been decided to be so elected. The authorities are well nigh universal that no other form of action is adapted to this end. High, Extr. Rem. §§ 49, 619, 641; McRary on Elections, §§ 386, 393, 397; State v. Kemf, 69 Wis. 470;State v. Sullivan, 83 Wis. 416, 53 N. W. 677;State v. Oates, 86 Wis. 634, 34 N. W. 226, 2 Am. St. Rep. 753;Deuster v. Zillmer, 119 Wis. 402, 410, 97 N. W. 31;Ward v. Sweeney, 106 Wis. 44, 82 N....