#### State ex rel. Plehn, Appellant, vs. Widule, Respondent.

*April 15*

October *3, 1916.*

*Elections: Contests:*Quo warranto: *Evidence: Competency: Uncompleted recount: Ballots: Tally sheets.*

1. A partial recount of ballots under sec. 86, Stats. 1913 (sec. 6.66, Stats. 1915), which was stopped by an order of court before it was completed, was not competent evidence, in a subsequent action of *quo warranto,*to impeach the determination of the board of county canvassers that the defendant was duly elected to a county office.

*42. Where a statute (see. 80, Stats. 1913; sec. 6.60, Stats. 1915) providing for the preservation and protection of ballots to be used in a contest has 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 canvassers.

£3. Whether the tally sheets kept by the precinct election officers and returned to the county clerk pursuant to sees. 42a, 78, Stats. *1913*(secs. 6.2S, 6.59, Stats. 1915), are competent evidence to impeach the determination of the board of canvassers, is not decided.]

Winslow, C. X, dissents.

Appeal from a judgment of tbe circuit court ,for Milwaukee county: Geo. W. BurNell, Judge.

*Affirmed.*

This is an action of *quo warranto*brought by plaintiff ■against the defendant to determine the right of defendant to Fold the office of county clerk of Milwaukee county, Wisconsin. 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 sec. 86, Stats. 1913, both plaintiff and defendant designating the precincts in which they desired a recount according to sec. 86.

During the recount and before completion thereof this court ordered that all recount proceedings under sec. 86, Stats. 1913, 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, and publish the result, and that the county clerk issue certificates of election thereon as prescribed by secs. 83, 84, and 85, Stats. 1913. *State ex rel. Ilusting v. Board of State 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 *5compliance with sec. 86, Stats. 1913, tbe plaintiff appealed to tbe circuit court for Milwaukee county from tbe action of tbe board of canvassers, and tbe circuit judge issued an order directing tbe county clerk to transmit to tbe clerk of tbe court forthwith all ballots, papers, and records affecting sucb appeal, and fixing a time and place for bearing tbereon in open court. Upon tbe bearing before tbe circuit court objection was made to tbe jurisdiction of tbe court upon tbe appeal, and after bearing and on January 14, 1915, tbe appeal was dismissed. In dismissing tbe appeal tbe circuit court referred to sub. 4 of sec.'86, Stats. 1913, wbicb provides that “Nothing in this section shall be construed to abrogate any right or remedy that any candidate may now have affecting tbe trying of title to office,” as preserving remedies for tbe trial of title to office sucb as *quo warmnio*or other proceeding, and provided in tbe order of dismissal “that all ballots, papers, records, and all petitions transmitted, left, or filed with tbe clerk of this court and wbicb are now in bis possession or under bis control wbicb have any reference whatever to, or are com nected in any manner with, said subject matter of election, or recount, or appeal, be preserved and retained in tbe vaults of said clerk of court, and under seal. . . .”

Before tbe dismissal of appeal tbe present action was commenced January 4, 1915. Tbe court below, after bearing tbe case, found that tbe defendant was tbe “duly certified, elected, qualified, and acting county clerk of Milwaukee county,” and that tbe plaintiff’s complaint should be dismissed.

It appears in tbe record that certain tally sheets and returns of inspectors were put in evidence on tbe trial below wbicb showed that tbe tally sheet from tbe fourth precinct, Eighteenth ward, gave plaintiff nineteen votes, while tlie return of tbe inspectors certified only nine votes for that precinct.

Judgment was entered dismissing tbe complaint with costs, from wbicb judgment this appeal was taken.

*6For the appellant there was a brief by *Lehr & Kiefer,*attorneys, and *J. Elmer Lehr*and *Edwin W. Knappe,*of counsel, and oral argument by *Mr. J. Elmer Lehr*and *Mr. Knappe.*

For the respondent there was a brief by W. *H. Timlin, Jr., Patrick W. Dean,*and *Emil Hersh,*and oral argument by *Mr. Timlin*and *Mr. Hersh.*

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 *8covering 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 *9canvassers. *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.

WiNsnow, O. J.

(dissenting). I do not agree with this decision and I want to state why.

It is not vastly important whether *Mr. Plehn*or *Mr. Wi-dule*was elected county clerk so far as the performance of the duties of the office are concerned; probably one could perform them as well as the other; but it is vastly important that the man actually elected should be seated.

One of the basic principles on which our government is founded is the principle that the qualified candidate who receives the greatest number of votes is the only rightful officer, and whenever it appears that a minority candidate has been seated or that a court, when duly invoked, refuses to investigate the question, and leaves a grave doubt as to the actual incumbent’s right to the office, respect for democratic government receives a serious shock. My strong impression is that one of these things has happened here.

*10Let us consider briefly tbe admitted facts: Tbe county board of canvassers determined by tbe original canvass tbat tbe plaintiff received 19,891 votes and tbe defendant 19,918 votes, a difference of only 21 votes. This result was reached by simply compiling and adding together tbe returns from the precinct officers. Application for a recount of a considerable number of precincts pursuant to tbe provisions of sec. 86, Stats. 1913 (sec. 6.66, Stats. 1915), was made by tbe relator and similar applications were made by tbe defendant and by other candidates, and tbe canvassing board started to make tbe recount. Tbe recount was stopped before its completion by tbe judgment of this court December 12, 1914, in the case of *State ex rel. Zabel v. Board of Canvassers,*159 Wis. 249, 150 N. W. 554, but the board bad already counted and tabulated tbe votes cast for county clerk in nine of tbe disputed precincts and bad published tbe results of such recount in those precincts as appears by tbe official record of their proceedings. In these nine precincts tbe official recount thus made and finished showed a total of 1,593 votes cast for *Widule*as against 1,605 shown by tbe original canvass, and 862 votes cast for *Mr. Plelm*as against 856 shown by tbe original canvass. It appeared, therefore, tbat in these precincts the relator bad made a net gain of 18 votes. This left a difference in favor of *Mr. Widule*of but 9 votes. It further appears without dispute tbat the official tally sheet' kept by the election officers in tbe fourth precinct of tbe Eighteenth ward shows 19 votes cast for Mr. *Plelm,*while tbe written statement returned to tbe county clerk states tbat there were but 9; also tbat tbe tally sheet in tbe fifth precinct of tbe same ward showed 20 votes cast for *Mr. Plelm,*while tbe written statement states that there were 19.

These facts are all undisputed. If, therefore, the recount made by the county canvassers in the nine precincts is better evidence of the actual vote than tbe original county canvass, and if the tally sheets are better evidence than the written *11statements of the precinct officers, it is established *prima facie*by this evidence that *Mr. Pl&hn*received two votes more than *Mr.*Widule, because the former gentleman has gained *11*votes and the latter gentleman has lost 12 votes, making a net gain for *Mr. Plehn*of 29 votes.

It is said that the recount is not good evidence because it never was completed. I am unable to appreciate the force of this argument. The law providing for the recount is a valid law. It emerged from the *TIusting*and *Zabel*cases considerably disfigured but still a valid law. The canvassing board had acted in strict accordance with its provisions in recounting the votes in the nine precincts above referred to. So far as those precincts were concerned its labor was complete and the results recorded. The original ballots had been counted under the eyes of counsel for both contestants and probably of the contestants themselves. There is nothing in the evidence tending to impeach the correctness of the results, and they are official results reached under the provisions of a valid law. True, this court held that the recount must cease at this point because it concluded that the county and state canvasses must be completed within a certain limit of time, but this does not mean that the work already done was invalidated or deprived of its probative force. Why should that work not be given effect? I am unable to see. It seems to me that in ruling otherwise both the trial court and this court have subordinated form to substance, and rejected evidence which our common sense tells us is the very best evidence.

The decision in the *TIusting Case*and the decision in this case taken together mean, as it seems to me, that in every case of a closely contested election in Milwaukee county sec. 86 of the Statutes becomes a mere husk without the kernel, a beautiful promise, kept to the ear but broken to the hope.

So with regard to the differences between the tally sheets kept by the precinct election officers and the statements of re-*12suits returned by them to tbe county clerk under tbe provisions of secs. 11 and 78 of tbe Statutes of 1913 (secs. 6.58 and 6.59, Stats. 1915).

By tbe provisions of cb. 581, Laws 1913 (now sec. 6.28, Stats. 1915), tbe tally sheets are made official documents to be certified by tbe election officers and returned to tbe county clerk as part of tbeir statement of tbe result under tbe provisions of sec. 78, Stats. 1913 (sec. 6.59, Stats. 1915). -Thus they become evidence, and when fair on tbeir face and not impeached by extrinsic evidence (as is tbe case here) must, it seems to me, be considered more satisfactory evidence of tbe actual vote than tbe written statement afterwards made. It would not be correct to say that they would necessarily control tbe written statement. There might well be evidence on tbe face of tbe tally sheet which would stamp it as unreliable or extrinsic evidence which would have tbe same effect, but there is nothing of that kind here. Tbe tally sheets in question are not impeached in any way; they contain tbe tallies evidently placed upon them carefully and methodically by tbe election inspector or clerk as tbe names of tbe candidates were called off from tbe ballots as they were being counted. It is to be noted that in tbe tally sheets from tbe fourth precinct of tbe Eighteenth ward not only are tbe tallies themselves 19 in number, but tbe sum is carried out in a column to tbe right as 19, while in tbe written statement on a separate sheet tbe number is stated as 9. To my mind it is much more likely that an error was made in transferring tbe totals to tbe statement than in recording tbe votes on tbe tally sheet as they were called off.

What tbe conclusion of tbe trial judge on this question was-seems somewhat uncertain. There is but one finding which touches the' question at all and that is tbe finding that tbe evidence received was “insufficient in fact and incompetent in.law” to impeach tbe return of tbe county canvassers. So far as tbe tally sheets are concerned there can be no doubt of tbeir competency, and in my judgment there is as little doubt *13of tbeir sufficiency. McCrary, Elections (4th ed.) §§ 505, 506; *State ex rel. Att’y Gen. v. Donnewirth,*21 Ohio St. 216.

I have not discussed the question as to the admissibility of the ballots themselves. While I entertain grave doubt whether the ruling of the court excluding them was correct, I should not on this ground alone disagree with my brethren, but defer to the conclusion of the trial judge, who evidently thought that they had lost their probative value because it appeared that they had not been carefully guarded and might easily have been tampered with. I base my conclusions on the uncontradicted evidence in the'case, which in my judgment shows a plurality of two votes for *Mr. Plehn.*If this-*prima facie*showing could be met and overcome in any way, it was the business of the defendant to present the evidence: which would accomplish that result, but this he did not do.

Esohweiler, J., took no part.

A motion for a rehearing was denied, with $25 costs, on October 3, 1916.