State ex rel. Symmonds v. Barnett

The following opinion was filed October 16, 1923: Owen, J. Ch. 149 of the Statutes relates to actions of quo warranto. Sec. 3466 thereof provides that an action may be brought by the attorney general in the name of the state upon his own information, or upon the complaint of any private party, against the parties offending in the following cases: “(1) When any person shall usurp, intrude into or unlawfully hold on exercise any public office, civil or military. ...” The same section also provides that “such action may be brought in the name of the state by a private person on his own complaint when the attorney general refuses to act or when the office usurped pertains to a county, town, city, village or school district.” Sec. 3468 specifies certain allegations necessary in the complaint, in the following language: “In all actions brought to determine the right to any office it shall be necessary for the plaintiff or relator in every case where the defendant is in possession of the office in controversy, under a certificate of election issued by the proper officer or board of canvassers, to state in his com — 121 — plaint in what respect such certificate was improperly or illegally issued; and in case it is claimed that the relator received a majority of legal votes cast for the office at any legal election to fill such office he shall also state in such complaint the actual number of legal votes cast for the relator and for the defendant for such office respectively, and also the number of votes cast for- the relator and for the defendant respectively for such office, as determined by the legal canvass of such election, and shall also state the names of the persons whom such relator shall claim voted illegally at such election for the defendant, which were canvassed, and in what such illegality consists and the election district where such illegal votes were cast; and the plaintiff and relator shall, upon the trial of any such action, be confined and restricted to proof as to the illegality of such alleged illegal votes so specified and shall not be permitted to give evidence of any other illegal votes than those so specified.” It will be observed that the statute requires a relator who claims to have received a majority of legal votes at an election to state the names of the persons whom such relator will claim voted illegally at such election for the defendant, and upon the trial he shall be confined and restricted to proof as to the illegality of such alleged illegal votes so specified and shall not be permitted to give evidence of any other illegal votes than those so specified. From the very beginning the defendant has sought to apply this provision of the statute to the relator and confine his proofs of illegal voting to those names actually specified by him in the complaint as having voted illegally for the defendant. This question was raised by demurrer to the complaint as well as by demurrer ore terms upon the trial, both of which were properly overruled. It will be remembered that there was attached to the complaint a list of 583 names whom it was claimed voted illegally at the election. A cross-mark (X) was placed after sixty-four names, the complaint alleging that the voter so marked voted illegally for the defendant. These allegations, wé hold, complied with the statutory — 122 — provisions above quoted, as to the sixty-four voters, and rendered the complaint sufficient upon demurrer. By objections consistently interposed during the trial defendant sought to limit the proof of illegal voting to the sixty-four names so marked. The court received the evidence subject to the objection, but it is apparent that in the final disposition of the case he disregarded such objections and considered all of the evidence received tending to establish illegal voting on the part of several hundred others than those indicated by the cross. It is necessary that we first consider whether this ruling constituted error. Oh the part of the relator it is contended that he did not seek to establish the fact that he received a majority of the legal votes cast for the office of district attorney at the election; that he brought the action as a private person to establish the illegality of defendant’s election and the fact that he was a usurper in the office. The statute unquestionably lays a burden upon a relator who claims to have received a majority of legal votes at the election that is not imposed upon the attorney general, or other private person, who may bring the action. This is a deliberate legislative provision and was no doubt enacted for a purpose. The legislature perceived a clear distinction between an action brought by the attorney general or by a disinterested private person to vindicate public interests, and an action brought by a defeated candidate to establish title to an office. The strict provision requiring the latter to “state the names of the persons whom- such relator shall claim voted illegally at such election” was no doubt inserted for the express purpose of discouraging the bringing of such actions where the compelling motive was the establishment of private rights rather than the vindication of public interests. It will thus be seen that whether this action is. brought by the relator in the one or the other capacity is-of most significant importance. The relator points to the fact that — 123 — the complaint does not ask for a judgment declaring him to have been elected to the office of district attorney, but that the purpose of the action is merely to establish the illegality of defendant’s title to the office. A consideration of the complaint as a whole ill conceals the relator’s personal interest in the controversy and quite as futilely reveals, as an impelling motive, the purpose of redressing the grievances of an outraged public. In the first place, relator starts in to lay broad and sure the foundations of his own claims to the office by alleging his appointment and qualification as district attorney and the fact that his term of office extended until the first Monday of January, 1923, and until his successor qualified. What place does such an allegation have in a complaint by the attorney general or by one seeking to vindicate only public interests? Then he alleges “that of said 583 votes and ballots there should be determined the proportionate number of such illegal votes for each candidate in each of said wards to be deducted from the whole number of votes cast for the said relator and said defendant respectively.” To say the least, that is a peculiar allegation in a complaint on behalf of the public to set aside the result of a fraudulent election. And a part of the prayer for relief is “that said Frank S. Symmonds be entitled to have, hold, and exercise said office as the duly qualified district attorney for Kenosha county, Wisconsin.” One cannot avoid the conclusion that this action would not have been sponsored by the relator were it not for the private interest involved. It is true relator adroitly avoids any claim that he received a majority of the legal votes cast at the election for the office of district attorney. But the proceedings have, nevertheless, eventuated in a judgment to that effect, and he has been adjudged duly elected to the office of district attorney at the last general election and is entitled to have and to hold such office and exercise its duties and functions by virtue of said election. Now, bearing in mind that the — 124 — legislature deliberately required a relator claiming to have received a majority of legal votes cast for an office to “state the names of the persons whom such relator shall claim voted illegally at such election for the defendant,” and confining him to such allegation in his proof, may an unsuccessful candidate escape such burden by yielding any claim that he himself received a majority of the legal votes, and introduce proof ad libitum, take a chance that the court will prorate the illegal votes between him and the successful candidate and install him in the office, as was done here upon the authority of State ex rel. Bell v. Conness, 106 Wis. 425, 82 N. W. 288. We believe that the judicial sanction of such a proceeding would point the way for unsuccessful candidates to avoid the duty imposed upon them by the legislature for the plain purpose of discouraging such proceedings where public interests are not involved and thwart the rather plain purpose of the statute. A defeated candidate by proceeding indirectly should not be permitted to avoid burdens which he must assume if proceeding directly. We therefore hold that the relator should have been confined in his proofs to the sixty-four, voters whom he alleged in his complaint to have voted illegally at the election. We now come to consider the question of whether the sixty-four persons so designated did vote illegally at the election. It is claimed their votes were illegal because their names did not appear upon the registry lists. This fact is not disputed. But it is claimed that, nevertheless, they were duly registered voters. This claim is based upon the fact that each of the sixty-four voters did vote at the preceding primary election. This, it is claimed, constitutes registration, and that if their names did not appear upon the registry lists it was due to the inattention or negligence of the registration officers, which cannot supervene to deprive the otherwise qualified voter of his constitutional right of suffrage. Conceding that these names were not upon the registry lists, we proceed to inquire, first, whether they in — 125 — fact registered, and second, if they did register, did the absence of their names from the registry lists render their votes illegal under the circumstances hereafter appearing. Sec. 6.16, Stats,, relates to the registration of voters. By that section and by sec. 6.17 it is provided that primary election day, the Tuesday next preceding such primary, and the Tuesday next preceding the general election shall be registration days; at its first meeting the registration board shall make a registry of all the electors residing in its district; the poll lists kept at the last preceding election shall be delivered to the board for use in making such registry, “which shall contain the names of all persons residing in the district which appear on said lists, together with the name of every person known by the board to be an elector of the district, and also the name of every person who shall on any registration day appear and file an affidavit stating that he is a qualified elector in such district and giving his place of residencethe board shall complete such registry as far as practicable at its first meeting and make necessary corrections at every subsequent meeting. By sec. 6.17 it is provided that the board shall hold a final meeting on the Tuesday next preceding the general November election and on no other day. By sec. 6.49 it is provided: “At every poll where a registry of electors is required, every elector at the time of offering his ballot shall truly state the street and number of the house or tenement, if numbered, or other location, in which he resides, and the clerks of election shall truly enter in the appropriate column of the poll lists, opposite his name, the street and number or other location of such house or tenement, or the name of the hotel or boarding house, and if such house or tenement be not numbered the clerks shall enter 'Not numbered.’ if any elector offering to vote at any such poll shall refuse to make such statement, his ballot shall not be received. The clerks shall also enter upon the poll lists, opposite the name of every elector so voting whose name was not duly registered, the words ‘Not registered.’ ” — 126 — It is to be noted that there is nothing very formal about the preparation of the registration lists. In the first-place, the registration board is required to enter on said lists the name of every person who' voted at the last general and municipal elections. They shall also put on said list the name of every person known by the board to be an elector of the district, and also the name of every person who shall on any registration day appear and file an affidavit stating that he is a qualified elector in such district and giving his place of residence. Primary election day is a registration day. It is conducted by the same officers who prepare the registration lists. One may not vote at the primary election without proving to the satisfaction of the election officers that he is a qualified voter in the district. When he so presents himself to vote at the primary election he shall truly state the street and number, where he resides. If he is not registered that fact shall be entered opposite his name on the poll lists by the election clerks. Sub. (6) of sec. 6.16 requires the registration board to enter on the list the name of every person known by the board to be an elector of the district. Sub. (8) of said section requires the board to complete said registry as far as practicable at its first meeting and make necessary corrections at every subsequent meeting. These provisions plainly make it the duty of the registration board, either at its meeting on primary election day or at its following meeting on the Tuesday next preceding the general election, to enter upon its registration lists the name, of every person who voted at the primary election whose name was not previously upon such registration lists. When the elector goes to the primary election and convinces the election officers that he is a qualified voter in the district, which fact is evidenced by reception of his ballot, he has most effectually, so far as it lies within his power, or so far as it constitutes his duty, registered as a voter in that district. If his name does not thereafter appear upon the — 127 — registration lists it cannot be attributed to any dereliction on his part, but is due solely to the negligence or inattention of the registration board. In the instant case, the sixty-four voters alleged by the relator to have voted illegally in the Sixth and Eighth wards of the city of Kenosha did in fact vote at the primary election. As a matter of fact the registration board made no effort, and did not' pretend, to complete the registration lists by inserting thereon the names of those who voted at the primary election but who were not previously registered. In the conduct of the election they treated the poll list of the primary as a part of the registration list. As so used it amounted to what was held to be a de facto registration list in State ex rel. Wood v. Baker, 38 Wis. 71. Were the votes cast under these circumstances illegal? It was squarely held in State ex rel. O’Neill v. Trask, 135 Wis. 333, 115 N. W. 823, citing earlier Wisconsin cases, that the registration laws constitute a reasonable regulation of the right to vote; that such provisions are mandatory; and that one whose name is not on the registration list should not be permitted to vote unless he supplies the affidavits required by statute of unregistered .electors. The language of that decision should of course be construed with reference to the facts there under consideration. In that case two unregistered electors presented insufficient affidavits upon which they were allowed to vote. The court held their votes invalid. We have no disposition to recede from the doctrine of that case as properly understood. But at this point we must bear in mind another well settled legal proposition. As a general rule a voter is not to be deprived of his constitutional right of suffrage through the failure of election officers to perform their duty, where the elector himself is not delinquent in the duty which the law imposes upon him. State ex rel. Wood v. Baker, 38 Wis. 71; 9 Ruling Case Law, 1093. In the Trask Case (135 Wis. 333, 115 N. W. 823), the — 128 — electors not having been registered it was necessary to furnish the proof of their right to vote in the form required by statute. It was their duty to procure and present proper affidavits. This they failed to do. They, were not deprived, therefore, of their right to vote through the negligence of election officials but rather because of their own failure to comply with the law. In this case the electors whose right to vote is challenged in fact registered. In this respect they complied, with all requirements of law and responded fully to their legal duty. They appeared before the registration board and established their status as electors in that district. They had a right to assume that their names were properly upon the registration lists. If they were not on such lists it was through no dereliction of theirs. The election officers themselves regarded them as registered. They treated the poll list of the primary election as a sort of a supplement to their registration list, and had it at the general election polling place for use as reference. These voters deposited their ballots with never a thought that they were not entitled to vote. Had their vote been refused because they were not so registered a different situation would be presented. In that case it was still possible for them to qualify themselves to vote by presenting the proper affidavits. However, they had every reason to suppose that they were qualified to vote. The election officers regarded them as qualified to vote. Their votes were received without any intimation that they were not qualified to vote and without any opportunity for them to present qualifying affidavits. The record shows that there were 118 voters in the Sixth ward and 460 voters in the Eighth ward of Kenosha in this situation. It is not pretended that any of them were not qualified voters in their respective wards. To uphold the contention of the relator is to disqualify 578 voters in these two wards, not by reason of any dereliction on their part' but because the election officers failed in the performance of their legal duty. To construe the registration law in — 129 — a manner to accomplish this result is to place our registration regulations perilously near the bolder line of unconstitutionality. It is said that the voter has an opportunity to consult the posted registration list with a view of ascertaining whether his name appears thereon, and, if it be not there, he may qualify himself to vote. by procuring and presenting to the election officers the proper affidavits. This argument was disposed of in State ex rel. Wood v. Baker, 38 Wis. 71, at p. 88, in the following language: “It was said upon the argument that the voters whose names were on the registers in the several wards in question were bound to inspect the registers and to discover their apparent defects. We cannot think so. We need not pass upon the questions whether voters at an election have a right to inspect the registers used, or whether notice of defects of form in the registers would impair the right to vote without proof; Because we hold that voters are not bound to examine the registers, if they can, as a condition precedent to voting without proof; and that voters whose names are on a register de facto, used by the inspectors at the election as official and valid, need not inquire further. They may accept the registers de facto, as they accept the inspectors de facto. And they are no more bound to inquire into the qualifications de jure of the registers than into the qualifications de jure of the inspectors. It is enough for voters to find at the election acting inspectors using actual registers virtute officii. They need look no further to see if their votes be challenged by statute. The statute cannot challenge them without notice. Their constitutional right cannot be baffled by latent official failure or defect. And the registry law sets no such trap, authorizes none such, for the constitutional right which it was passed to protect.” We are clear that the votes of those under consideration should not be held illegal. We therefore hold that the ballots of the sixty-four electors whose votes were put in question by relator’s complaint should have been counted, and that the court erred in treating the 538 votes similarly situated as illegal and apportioning them between the relator — 130 — and defendant in proportion to the total number of votes received by them in the respective wards. This conclusion is in strict harmony with State ex rel. Wood v. Baker, 38 Wis. 71, and is no more in conflict with State ex rel. O’Neill v. Trask, 135 Wis. 333, 115 N. W. 823, than the Baker Case was in conflict with State ex rel. Doerflinger v. Hilmantel, 21 Wis. 566, and State ex rel. Bancroft v. Stumpf, 23 Wis. 630. As we adhere to the ruling in the Trask Case, so did the court in the Baker Case adhere to the doctrine of the ITilmantel and Stumpf Cases. The difference between the situations presented in this and the Baker Case and the situations presented in the other cases is that in this and the Baker Case no negligence is to be imputed to the voter and he was chargeable with no knowledge that his qualification to vote had not been properly proved. As said in the Baker Case (p. 87): “Nonfeasance or malfeasance of public officers could have no effect to impair a personal, vested, constitutional right. We see no such purpose in the registry law. Surely it would be a strange attempt to protect the elective franchise and preserve the purity of elections, to put it in the power of inspectors of election, by careless accident or corrupt design, to disfranchise constitutional voters. That, we take it, would be the actual effect of avoiding elections where the inspectors use defective or irregular registers at the election, as official and valid; so entrapping voters into dispensing with proof of their right, required and authorized only when their names are not registered at the election. We cannot think that such is a necessary or admissible construction of the statute.” This brings us to another question. It appears that the referee appointed by the circuit court to canvass the votes, rejected and did not count a considerable number of ballots which were not indorsed by the ballot clerks. These were considered defective ballots by the referee. Upon the trial considerable evidence was introduced tending to show that such defective ballots were cast by absent voters. This — 131 — evidence, speaking generally, consisted of testimony on the part of election officers from the various election districts to the effect that ballots received from absent voters were not indorsed by the ballot clerks but they were deposited in the ballot box as required by sec. 11.62, Stats., and that the number of Unindorsed ballots found in the ballot box corresponded to the number of absent voters. We think this evidence would justify a finding that the unindorsed ballots were those of absent voters. But we are not clear as to whether the trial court in fact so found. The disposition of the case by the. trial court gave the relator such a large majority that the court found it unnecessary to consider many irregularities which the relator pressed at the trial. After finding that the defendant had received 4,001 votes and the relator 4,197 votes, and after apportioning and deducting the illegal votes in the manner above stated, the trial court in his findings of facts says: “To these totals might be added the following absent voters’ ballots: in Pleasant Prairie, 3 for defendant, 8 for relator, 3 blank; in Somers, 2 for relator; Second ward, 4 for relator; Third ward, 2 for relator; Fourth ward, 5 for relator; Sixth ward, 2 for relator; or, a total of 3 for defendant and 23 for relator. The court finds, in view of the foregoing result in the foregoing summary of votes cast for each party hereto in said seventeen precincts above mentioned, that it is not necessary to consider the trifling difference between the number of votes found in the ballot boxes and the number of persons’ names found on the poll lists, or is it necessary to reject votes where voters used defective affidavits, or to add the number of absent voters’ ballots as above found, for their total would not change the result as above determined. The court also finds that it is necessary to inquire for which candidate votes illegally received were marked and counted. The court also finds that the number of votes illegally received in the Sixth and Eighth wards being so large and their illegality so obvious that it is quite unnecessary to take into consideration the other and smaller irregularities or to inquire for whom persons voting illegally cast their ballots.” — 132 — .If these ballots be counted and added to the votes of the parties hereto, as found by the referee, it will result in a tie vote between the parties to this proceeding. There will then remain the other irregularities mentioned in the finding of the trial court above quoted to be disposed of. We must determine whether the unindorsed ballots, if it be found that they were voted by absent voters, should have been counted. It will be noticed that the provision of sec. 3468 which we hold required relator to state the names of the persons whom he claimed to have voted illegally at such election for the defendant does not apply to the count and canvass of the ballots. The question here is, Should the ballots be counted? — not whether the voter casting the ballot was a qualified elector. Sec. 6.41 provides that any ballot which is not indorsed by the signature or autograph initials of the ballot clerks shall be void, not counted, and be treated and preserved as a defective ballot. This is a rather imperative statute. But for the very same reasons which prompted our conclusion upon the question already discussed, we think it should not be held to apply to absent voters’ ballots. To so apply the statute would be to disfranchise a qualified voter through the negligence of the election officers, and, as said in State ex rel. Wood v. Baker, 38 Wis. 71, 89, “Their constitutional right cannot be baffled by latent official failure or defect.” The voter who presents himself at the polls has an opportunity to examine his ballot and see that it is properly indorsed by the ballot clerks. The absent voter receives his ballot from the county clerk, at which time it is not indorsed. The indorsement of the ballot is a duty which the election officers are required to perform after the ballot has left the hands of the voter and at a time when he is not present to see that the duty is performed. The indorsement of the ballot, therefore, is not within his power to demand or compel. In — 133 — order that the constitutional right of the voter shall not be abridged by official dereliction and without any negligence on his part, it is necessary to hold that sec. 6.41 does not apply to absent voters, and that such unindorsed ballots as the court may find upon competent evidence to be the ballots of absent voters should be counted. This is about as far as we can go with the case. We have discussed such concrete questions as are disclosed by the. record which are material to a disposition of the case. It would seem that it is now necessary for the trial court to consider other irregularities which at the time" of the disposition of the case in that court were deemed of too trifling, a nature to affect the result. We do not think a new trial necessary. The court should make further findings upon the record as it exists and enter the proper judgment pursuant to such findings. By the Court. — Judgment reversed, and cause remanded for further proceedings in accordance with.this opinion.