State ex rel. Schuetz v. Luy

Dodge, J. "While the gross irregularities and illegal acts characterizing the election and canvass of thevotps at precinct Ho. 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 twenty-five 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 two 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 secs. 52, 57, Stats. 1898, and secs. 43, 49, ch. 288, Laws of 1S93, all of these votes belonged to relator; and, being so counted, they result in a majority for him of two. We concur in much said by appellant’s counsel as to the necessity for strict and careful supervision and preservation [528] of defective ballots, in order to make them, admissible in evidence; but, in the ultimate analysis, such general rules result only in requiring that the court shall be satisfied that the ballots offered in evidence are the identical ones cast at the election, and are without change. The identity and integrity of the so-called defective ballots received in evidence in this case have been found by the court upon evidence which certainly does not preponderate against that finding, and they therefore must be taken as the evidence of the intent of the voters who cast them. In a judicial controversy between individuals over the results of an election, it is the duty of the court to rectify any omissions or mistakes of the canvassing boards, and give effect to the real will of the voters, as in fact expressed through their ballots. State ex rel. Spaulding v. Elwood, 12 Wis. 551, 557; State ex rel. Guernsey v. Meilike, 81 Wis. 571, 577. And that will, and the terms of those ballots, are to be ascertained from the evidence, like any other facts, and subject to the same rules of evidence. The court below seems to have proceeded in accordance with that policy. True, the contents of two ballots was established by oral testimony, but no objection upon that ground was made, and it was not shown that the ballots themselves had existence at that time. Oral evidence is necessarily admissible for that purpose in most cases, since by the law it is the duty of the counting officers to destroy the ballots as soon as counted, except where retained as defective; and while their contents, like that of any other written instrument, could best be proved by the instruments themselves, if in existence, they may, in a proper case, be proved by oral evidence, especially if there be no objection made thereto. State ex rel. Hawes v. Pierce, 35 Wis. 93, 98; State ex rel. Guernsey v. Meilike, supra; State ex rel. Cremer v. Steirborn, 92 Wis. 605, 607. While we prefer to rest our decision in this case, resulting, as it does, in an affirmance of the judgment of the court [529] below, upon' the same grounds upon which that court proceeded,' we cannot retrain from expressing the strongest condemnation of the manner in which the election at precinct No. 2 was conducted. The utter disobedience of the statute which requires that the three inspectors shall not be of the same political party is most reprehensible. That provision is of the gravest importance for the protection of the rights of voters and candidates, and of purity in elections. This case offers an excellent illustration of the outrages upon those' rights likely to result from disobedience. Here, out of a total of thirty-two so-called ambiguous ballots rejected by the inspectors, it appears that twenty-seven should have been counted for the candidate of the party opposed to those who made up this illegal board of inspectors. The inference of .unfairness, if not fraud, is almost irresistible, especially when the public were unlawfully excluded from their right to observe the count, given by sec. Y6, Stats. 1898. Again, the conduct of the chairman of this board of inspectors, made apparent by the evidence, in devoting himself almost throughout election day to partisan proselyting, and solicitation and influencing of voters, should call for the prompt condemnation of all good citizens. It is a commentary upon the laxity of our people in defending their rights to free and secret suffrage under the law that this man does not appear to have been called to the bar of a criminal court to respond for such acts. There is a strong tendency in the decisions of this and many other courts to overlook irregularities, and to refrain from depriving communities of the results of an election by reason thereof. This tendency may doubtless tend towards justice, if the irregularities are unconscious and without intentional fraud; but, if such tenderness is likely to continue the occurrence of such practices as are here presented, it will be mistaken, for it will result in sustaining, as valid, elections the result of which may be entirely opposite to the [530] will of the majority as it would have been expressed had the election been legally conducted,— a result certainly more outrageous than the entire disfranchisement of the community. That tendency in courts is predicated upon the charitable presumption of innocence of wrong intent in failures to- comply with the somewhat technical and involved statutes governing elections; but, if it is to continue without serving more often as a shelter for fraud and subversion of the popular will, it can only be because wilful acts of disobedience of the law are promptly prosecuted and punished. By the Court. — Judgment affirmed.