State ex rel. Plehn v. Widule

The following opinions were filed Hay 2, 1916: ICeewiN, J. 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. 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 [7] warranto to try title. He first cbose tbe former remedy, and proceeded with the recount until it was stopped by the order of this court. State ex rel. Husting v. Board of State 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 statute clearly provides how the recount shall be conducted and com pleted and provides, among other things, that on recount the ballots “in every precinct so specified” in the demand for recount shall be recounted. Sec. 86, Stats. 1913. 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, sub. 3, sec. 86, Stats. 1913. 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. Error is assigned on refusal of the court to allow the ballots to be counted on the request of plaintiff. Sec. 80, Stats. 1913, 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 [8] 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 taken before the board of canvassers, was open. There was direct evidence that the ballots bad been tampered with before the trial of this action. It was established on the trial without dispute that at least one of the bags containing ballots, when taken before the board of canvassers on the alleged recount, was open, and was still open at the time of trial of this action. There was also other evidence strongly tending to show that in other respects the ballots had not been protected so as to preserve their integrity. Under such circumstances the court properly refused the plaintiffs request to recount the ballots. It is well settled that where statutes providing for the preservation and protection of ballots to be used in a contest have not been complied with, or where it appears that the integrity of the ballots has not been preserved, such ballots are not competent evidence to impeach the determination of the board of [9] canvassers. Farrell v. Larsen, 26 Utah, 283, 73 Pac. 227; People ex rel. Williams v. Cicott, 16 Mich. 283; Martin v. Miles, 40 Neb. 135, 58 N. W. 732; Fenton v. Scott, 17 Oreg. 189, 20 Pac. 95; Beall v. Albert, 159 Ill. 127, 42 N. E. 166; Thornhill v. Wear, 131 La. 739, 60 South. 228; DeLong v. Brown, 113 Iowa, 370, 85 N. W. 624; Fdwards v. Logan, 114 Ky. 312, 70 S. W. 852; People v. McClellan, 124 App. Div. 215, 108 N. Y. Supp. 765. Whether the tally sheets were competent to impeach the return of the board of canvassers we need not and do not decide, because, even if the plaintiff be given credit for the discrepancies in his favor appearing from the tally sheets and return, the defendant would still have the greater number of votes. We axe convinced that the court below was right in holding that there was no proof sufficient to impeach the determination of the board of canvassers and in denying the request of plaintiff to count the ballots. By the Court. — The judgment is affirmed.