State ex rel. Milwaukee Cnty. Republican Comm. v. Ames

• Decision Date: 14 March 1938
• Citation: State ex rel. Milwaukee Cnty. Republican Comm. v. Ames, 227 Wis. 643, 278 N.W. 273 (Wis. 1938)
• Parties: STATE ex rel. MILWAUKEE COUNTY REPUBLICAN COMMITTEE et al. v. AMES, Mayor.
• Court: Wisconsin Supreme Court

227 Wis. 643

278 N.W. 273

STATE ex rel. MILWAUKEE COUNTY REPUBLICAN COMMITTEE et al.

v.AMES, Mayor.

Supreme Court of Wisconsin.

March 2, 1938.

Dissenting Opinions March 14, 1938.

Original action for mandamus commenced in Supreme Court pursuant to leave granted by the State, on the relation of the Milwaukee County Republican Committee, and another, petitioners, against C. B. Ames, as Mayor of the City of Cudahy, Wisconsin, to compel appointment of Eleanor Hamlin as a clerk of election.-[By Editorial Staff.]

Writ issued.

ROSENBERRY, C.J., and FRITZ and WICKHEM, JJ., dissenting.

The petition herein alleges: “That a controversy has arisen of urgent and statewide importance concerning the basis and right of appointment of election inspectors, clerks of election and ballot clerks in each precinct of the State of Wisconsin under the provisions of section 6.32 subsection (1) and paragraph (b) of subsection (4) and section 10.04 subsection (6) of the Wisconsin Statutes 1937.”

The petition further states: “That said controversy is whether the vote cast for presidential electors or the vote for governor shall be taken as the basis of determining which political party shall be entitled to have its members appointed to the office as inspector, one as clerk of election and one as ballot clerk and which political party shall be entitled to have its members appointed to the remainder of said offices in each precinct, in years when the last preceding general election was one in which presidential electors were voted for.”

It is further alleged: “That on the 19th day of January, 1938, the Attorney General of the State of Wisconsin rendered and published an opinion in which he held that in interpreting the provisions of section 6.32 of the Statutes of the State of Wisconsin the use of the vote of each party for Governor is the proper method for measuring the relative strength of the political parties in the last election; that such test truly reflects the strength of the parties, one against the other, in accordance with the legislative intent of section 6.32 of the Wisconsin Statutes, and that the vote for Governor is the proper basis for the appointment of election officials at the polls.”

It is further alleged that the controversy is genuine; that it affects the substantial rights of political parties and that a determination is necessary to prevent a multiplicity of suits and actions in all parts of the State of Wisconsin and that it particularly concerns the entire County of Milwaukee and the precinct of the First ward of the City of Cudahy. The petition contains appropriate allegations as to the election and organization of the Milwaukee County Republican Committee, and alleges that it is the committee of the Republican Party in and for Milwaukee County, in the State of Wisconsin.

The petitioner, Eleanor Hamlin, is a member of the Republican Party, a resident of the precinct of the First ward of the City of Cudahy and possessed of the qualifications to serve as a clerk of election in and for the precinct of the First ward of said City of Cudahy. It is further alleged:

“*** on or about the 25th day of January, 1938, the County Committee submitted to the Mayor of the City of Cudahy a list of one person for inspector of election, one for clerk of election and one for ballot clerk for each of the several precincts of the City of Cudahy, and the name of your petitioner, Eleanor Hamlin, was submitted in said list as a clerk of election of, in and for the precinct of the First Ward of said city of Cudahy; that said list so submitted bore the signature of the chairman and the secretary of the Milwaukee County Republican Committee.

“That similar lists, as provided for by statute, were submitted in like manner to the proper officers of all other districts of Milwaukee County by said County Committee, as provided by statutes of the State of Wisconsin.”

The petition states:

“That the number of votes cast in said precinct at the general election held on the 3rd day of November, 1936, for President and Vice President was 962 votes, which were divided among the political parties as follows:

+------------------------------------------+
                ¦For the Democratic electors     ¦805 votes¦
                +--------------------------------+---------¦
                ¦For the Republican electors     ¦85 votes ¦
                +--------------------------------+---------¦
                ¦For the Socialist electors      ¦19 votes ¦
                +--------------------------------+---------¦
                ¦For the Communist electors      ¦5 votes  ¦
                +--------------------------------+---------¦
                ¦For the Socialist-Labor electors¦0 votes  ¦
                +--------------------------------+---------¦
                ¦For Prohibition electors        ¦1 vote   ¦
                +--------------------------------+---------¦
                ¦For Union Party electors        ¦47 votes ¦
                +------------------------------------------+
                

“That the number of votes cast in said precinct for the office of Governor of the State of Wisconsin at said general election was 947 votes, which were divided among the several party candidates as follows:

+-------------------------------------------------+
                ¦For the Progressive Party candidate    ¦503 votes¦
                +---------------------------------------+---------¦
                ¦For the Democratic Party candidate     ¦338 votes¦
                +---------------------------------------+---------¦
                ¦For the Republican Party candidate     ¦88 votes ¦
                +---------------------------------------+---------¦
                ¦For the Socialist-Labor Party candidate¦1 vote   ¦
                +---------------------------------------+---------¦
                ¦For the Prohibition Party candidate    ¦0 votes  ¦
                +---------------------------------------+---------¦
                ¦For the Union Party candidate          ¦17 votes ¦
                +-------------------------------------------------+
                

“That at said general election, the Progressive party had no candidates for presidential electors and said Progressive party had no national party organization, and it was a party organization wholly confined in the State of Wisconsin.

“That the other party organizations above mentioned had national organizations and candidates for presidential electors at said general election in November, 1936.”

It is further set forth in the petition that the mayor of the City of Cudahy has declared and given out that he will accept the opinion of the Attorney General as the correct interpretation of the law and that he will appoint the precinct inspectors of election, clerks of election, and ballot clerks on the following basis: That the Progressive Party is entitled, as the predominant party, to have appointed from its lists two inspectors of election, one ballot clerk, and one clerk of election; and that the Democratic Party is entitled to have the remaining inspectors, clerks of election, and ballot clerks appointed from its lists.

That under such interpretation, those certified for appointment by the Republican Party are to be excluded from any possible appointment to said offices and that the petitioner Eleanor Hamlin will be thereby deprived of appointment to the office of clerk of election in said precinct of the First ward of the City of Cudahy. No appointments have thus far been made.

The petitioners pray that a writ of mandamus be issued out of this court, directed to C. B. Ames, as mayor of the City of Cudahy, commanding him to appoint the petitioner, Eleanor Hamlin, as clerk of election in the precinct in the First ward of the said city. The Attorney General has consented that the action be brought upon the relation of the State of Wisconsin. The respondent moved to dismiss the petition on the ground that no reason in law is stated in said petition to show that petitioners are entitled to a writ of mandamus as prayed.

Lyman G. Wheeler, of Milwaukee, (Lilian M. Kohlmetz, Roland J. Steinle, Harry G. Slater, Lewis D. Thill, and Joseph G. Konop, all of Milwaukee, of counsel), for petitioners.

Edward G. Minor, City Atty., and Ward Dunphy, Asst. City Atty., both of Cudahy, for respondent.

Orland S. Loomis, Atty. Gen., L. E. Vaudreuil, Deputy Atty. Gen., Warren H. Resh and Harold H. Persons, Asst. Attys. Gen., and Walter J. Mattison, City Atty., and Chas. W. Babcock and Cornelius J. Merten, Asst. City Attys., all of Milwaukee, amici curiae.

MARTIN, Justice.

The material parts of the several statutes applicable, provide as follows:

“6.32 Election inspectors and clerks. (1) Except as otherwise provided, there shall be three inspectors, two clerks of election and two ballot clerks at each poll at every election held under the provisions of this title, each of whom shall be a qualified elector in the election district, except for election boards serving more than one precinct pursuant to section 6.045, and said electors shall be able to read and write the English language understandingly and not a candidate to be voted for at such election. Provided, however, that at polls where voting machines are used ballot clerks shall not be employed. Not more than two of such inspectors, nor one of said clerks of election, nor one of said ballot clerks, shall be members of the same political party, but each one of said officers shall be a member of one of the two political parties which cast the largest vote in the district at the last preceding general election, the party which cast the largest vote being entitled to two inspectors, one clerk and one ballot clerk, and the party receiving the next largest vote being entitled to the remainder of said officers. The basis for such division shall be the vote of each party for its presidential elector receiving the largest vote, or for its candidate for governor, at the last preceding general election.”

Subsection (4), of section 6.32, provides:

“(a) The mayor of every city, except cities having one hundred thousand or more inhabitants, shall nominate to the common council thereof, and the president of every village shall nominate to the village board of trustees thereof, at the first regular meeting of such council and of such board in February of each year in which a general...