State v. Widule

• Decision Date: 02 April 1916
• Citation: 157 N.W. 769,164 Wis. 3
• Parties: STATE v. WIDULE.
• Court: Wisconsin Supreme Court

164 Wis. 3

157 N.W. 769

STATE

v.WIDULE.

Supreme Court of Wisconsin.

May 2, 1916.

Dissenting Opinion April 2, 1916.

Appeal from Circuit Court, Milwaukee County; George W. Burnell, Judge.

Complaint in quo warranto by Martin Plehn against Louis G. Widule to determine right to office of county clerk of Milwaukee county. Complaint dismissed, and plaintiff appeals. Affirmed.

This is an action of quo warranto brought by plaintiff against the defendant to determine the right of defendant to hold the office of county clerk of Milwaukee county, Wis. The defendant was a candidate for re-election at the general November, 1914, election, held November 3, 1914, and the plaintiff and others were also candidates at said election for the same office. The board of county canvassers, proceeding according to law, determined that the defendant was duly elected and issued the certificate of election to him. In due time a recount in certain precincts was asked by the plaintiff under section 86, Stats. 1913; both plaintiff and defendant designating the precincts in which they desired a recount according to section 86, Stats. During the recount, and before completion thereof, this court ordered that all recount proceedings under section 86, Stats., cease, and the canvassers were required by mandamus to make a statement of the votes cast for county officers, file the same with the county clerk, publish the result, and that the county clerk issue certificates of election thereon as prescribed by sections 83, 84, and 85, Stats. Husting v. Board of Canvassers, 159 Wis. 216, 150 N. W. 542.

In compliance with the order of this court in the matter the recount ceased before completion. Afterwards, in attempted compliance with section 86, Stats., the plaintiff appealed to the circuit court for Milwaukee county from the action of the board of canvassers, and the circuit judge issued an order directing the county clerk to transmit to the clerk of the court forthwith all ballotts, papers, and records affecting such appeal, and fixing a time and place for hearing thereon in open court. Upon the hearing before the circuit court objection was made to the jurisdiction of the court upon the appeal, and after hearing, and on January 4, 1915, the appeal was dismissed. In dismissing the appeal the circuit court referred to subdivision 4 of section 86, Stats., which provides that “nothing in this section shall be construed to abrogate any right or remedy that any candidate may now have affecting the trying of title to office,” as preserving remedies for the trial of title to office such as quo warranto or other proceeding, and provided in the order of dismissal “that all ballots, papers, records, and all petitions transmitted, left, or filed with the clerk of this court and which are now in his possession or under his control which have any reference whatever to, or are connected in any manner with said subject-matter of election, or recount, or appeal, be preserved and retained in the vaults of said clerk of court, and under seal. * * *”

Before the dismissal of appeal the present action was commenced January 4, 1915. The court below, after hearing the case, found that the defendant was the “duly certified elected, qualified, and acting county clerk of Milwaukee county,” and that the plaintiff's complaint should be dismissed. It appears in the record that certain tally sheets and returns of inspectors were put in evidence on the trial below which showed that the tally sheet from the Fourth precinct, Eighteenth ward, gave plaintiff 19 votes, while the return of the inspectors certified only 9 votes for that precinct.

Judgment was entered dismissing the complaint, with costs, from which judgment this appeal was taken.

Winslow, C. J., dissenting.Lehr & Kiefer, of Milwaukee (J. Elmer Lehr and Edwin W. Knappe, both of Milwaukee, of counsel), for the State.

W. H. Timlin, Jr., Patrick Dean, and Emil Hersh, all of Milwaukee, for respondent.

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

The court below held that the evidence given, offered, and received in that court was insufficient in fact and incompetent in law to successfully impeach the determination of the board of county canvassers, and that the defendant is the duly certified elected, qualified, and acting county clerk of Milwaukee county.

The appellant offered evidence tending to show the result of the recount so far as it had proceeded, and it is claimed by counsel for appellant that by correcting the returns to agree with such recount, and without further proceeding with the recount, it appears that plaintiff has the greatest number of the votes cast for county clerk at the November, 1914, general election. Conceding, without deciding, that when the recount stopped the result up to that point showed that plaintiff had the greatest number of the votes cast for county clerk, the question arises whether a partial recount in the precincts designated in the application for recount was sufficient to impeach the determination of the board of county canvassers. In order to establish that the plaintiff was elected and overcome the determination of the board of county canvassers it was necessary for the plaintiff to establish in some proper legal proceeding that the plaintiff was elected, and the determination of the board erroneous.

[1] The plaintiff was at liberty to pursue the remedy provided by statute for a recount and appeal from the determination of the board on such recount, or he might bring an action of quo warranto to try title. He first chose the former remedy, and proceeded with the recount until it was stopped by the order of this court. Husting v. Board of Canvassers, 159 Wis. 216, 150 N. W. 542. The precincts designated by the parties in the recount proceeding not having been completed, there was no determination by the board. The statutory remedy on recount not having been carried out to completion, there was no determination of the matter; hence the partial recount was not competent evidence in the present action. The determination of the board of county canvassers could be impeached by a recount only when the recount was conducted and completed in the manner provided by statute, and showed that the determination of the board of canvassers was erroneous, and that the plaintiff had received the greatest number of the votes cast for county clerk. The statutes clearly provide how the recount shall be conducted and completed, and provides, among other things, that on recount the ballots “in every precinct so specified” in the demand for recount shall be recounted. Section 86, Stats. A partial recount in the precincts demanded is not a compliance with the statute, and no determination can be made thereon authorizing an appeal under the statute (subdivision 3, § 86, Stats.). The statute not having been complied with, the recount proceedings were not competent evidence to impeach the determination of the board of county canvassers. Bradbury v. Wightman, 232 Mo. 392, 134 S. W. 511.

[2] Error is assigned on refusal of the court to allow the ballots to be counted on the request of plaintiff. Section 80, Stats., provides in part:

“Before separating, the inspectors shall fold in two folds and string closely upon a single piece of flexible wire, all ballots which shall have been counted by them, except those marked ‘Objected to,’ unite the ends of such wire in a firm knot, seal the knot in such manner that it cannot be untied without breaking the seal, inclose the ballots so strung in a secure canvas covering and securely tie and seal such canvas covering with official wax impression seals, to be provided, by the inspectors in such manner that it cannot be opened without breaking the seals, and return said ballots, together with the package containing the ballots marked ‘Defective or objected to’ in such sealed canvas covering to the county clerk, and such officer shall carefully preserve said ballots for sixty days, and at the expiration of that time shall destroy them by burning without previously opening the package: * * * Provided, that if any contest of the election of any officer voted for at such election shall be pending at the expiration of said time, the said ballots shall not be destroyed until such contest is finally determined. In all cases of contested elections the parties contesting the same shall have the right to have said ballots opened, and to have all errors of the inspectors in counting or refusing to count any ballot, corrected by the court or body trying such contest, but such ballots shall be opened only in open court or in open session of such body and in the presence of the officer having the custody thereof.”

The evidence is overwhelming that this statute was not complied with in preserving the integrity of the ballots. The court below so held in a written opinion in the record, and held that the evidence was uncontradicted that one bag in which ballots were kept when...