State ex rel. Schuetz v. Luy

• Decision Date: 22 June 1899
• Citation: 103 Wis. 524,79 N.W. 776
• Parties: STATE EX REL. SCHUETZ v. LUY.
• Court: Wisconsin Supreme Court

103 Wis. 524

79 N.W. 776

STATE EX REL. SCHUETZ

v.LUY.

Supreme Court of Wisconsin.

June 22, 1899.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by the state, on the relation of Henry Schuetz, against Jacob Luy, to oust defendant from an office and declare relator elected thereto. Judgment for relator, and defendant appeals. Affirmed.

Relator and defendant were opposing candidates by party nomination at the spring election of 1898 for the office of town chairman of the town of Milwaukee. The defendant was seated, upon a canvass of the votes, by a majority of 24. Upon the trial it was shown that the inspectors at precinct No. 2 were, as alleged, all of the same political party with the defendant; that one of them misconducted himself in the manner indicated in the complaint; that the public were excluded from the booth when the votes were counted, and that, instead of obeying the statute with reference to the ballots after the same were counted, those thrown out as defective were not sealed up, but were simply tied together and put into the ballot box, where also were put the returns and all the other ballots cast at said election; that the ballot box, being locked, was then delivered to the clerk of the town, and remained duly locked in the town hall for a week or more after election, whereupon, on notification of dissatisfaction, the clerk removed the parcel of defective ballots and put them in his safe. Some evidence was offered to show the possibility of access to the town hall, and indicating some attempts upon the ballot box containing these ballots. The court, however, found that the 30 defective ballots had been preserved without interference, and were the identical ballots returned by said inspectors, and that the box containing the same had not in any manner been tampered with, and accordingly received said ballots in evidence. Of these 30, 25 were counted by the court for relator; there having been a cross at the head of the column in which was defendant's name, and a separate cross against the name of relator. Witnesses also testified, and the court found, that 2 ballots were counted for neither relator nor defendant, where the cross had been placed at the head of the column containing defendant's name, but his name erased, and that of the relator written in the space below it. These 2 were counted for relator by the court. The result gave the relator 292 votes, against 290 for defendant; and judgment of ouster was entered against the defendant, and adjudging relator duly elected, and that he assume the office upon taking the oath.Nath. Pereles & Sons and H. K. Curtis, for appellant.

Toohey & Gilmore, for respondent.

DODGE, J. (after stating the facts).

While the gross irregularities and illegal acts characterizing the election and canvass of the votes at precinct No. 2, and the looseness in transmitting and preserving the defective ballots, render any conclusion unsatisfactory, if not doubtful, yet it is impossible to say that the findings of the court are antagonized by any clear preponderance of the evidence. Those findings have been made after a careful trial, where the witnesses were subjected to the observation of the superior court, and other means of assurance were had which are not possible to us. The ballots which that court has counted for the relator in reversal of the action of the canvassing officers, he is clearly entitled to under the statute. They consist of 25 wherein the voter, after placing the cross at the head of the column which included defendant's name, had placed a cross against the name of the relator, and of 2 wherein, after marking the cross at the head of said column, the defendant's name had been erased, and relator's written below it. Under the provisions of sections 52, 57, Rev. St. 1898, and sections 43, 49, c. 288, ...