#### Petition of Anderson.

*September 22, 1916.*

*Supreme court: Original jurisdiction: When exercised: Insufficient tipie for decision: Certification of nominee for state office.*

An action to determine whose name should, after a primary election, he certified by the secretary of state as the nominee of a party for a state office — in this case that of member of assembly — -is wúthin the original jurisdiction of the supreme court; but, in view of the statutory provisions for a recount of .the votes, and because there would be an issue of fact which must be sent to the circuit court for trial, with no reasonable certainty that any result could be reached before the time when the secretary of state must act, leave to bring such an action is in this case denied.

Petition for leave to bring an action in tbis court.

*Denied.*

*Orowriharb & Wylie,*for petitioner.

[No brief on file.]

Tbe decision in this case ivas announced September 22, and the following opinion was filed October 3, 1916:

Pee Cueiam.

*Douglas Anderson*petitions for leave to bring an equitable action in this court for the purpose of enjoining the secretary of state from certifying to the county clerks of Florence, Forest, and Oneida counties the name of A. M. Rogers as the Republican nominee for the assembly from that district, and directing him to certify the name of the petitioner for that office. The petition alleges, in sub*2stance, that by the returns to the state board of canvassers of the primary election held September 5, 1916, it appears that Rogers received 825 votes and the petitioner 824 votes for said nomination, while as matter of fact the election inspectors in two precincts made errors in the count and credited to said Rogers four votes more than he actually received in one precinct and one in another precinct, thus giving Rogers an apparent majority of one, while in fact the petitioner had a majority of four. The petition further alleges that the facts as to these errors were not discovered by him until after the county canvassers had finished the county canvass and the time for securing a recount had expired.

An assemblyman being a state officer, it is doubtless true that this case is within the original jurisdiction of this court and should be entertained if, in the sound discretion of the court, the exigency is sufficiently grave to call for the exercise of that jurisdiction. *Income Tax*Cases, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164; *State ex rel. Bancroft v. Frear,*144 Wis. 79, 128 N. W. 1068.

Upon mature reflection, we do not think that the jurisdiction should be exercised.

The Primary Law, as amended by sec. 34, ch. 381, Laws 1915 (sec. 5.29, Stats. 1915), makes all the provisions of the Statutes relating to recount of ballots by the county board of canvassers applicable to primary elections. These provisions are found in sec. 6.66 of the Statutes, and they furnish a summary method by which any candidate may obtain on demand, at any time before the county canvass closes, a recount of the votes in any precinct. In view of this remedy furnished by the statute, and in view of the extreme shortness of the time within which final judgment must be rendered in the proposed action in order to be of any avail, it is not deemed that the original jurisdiction of this court should be exercised.

The secretary of state is required to certify the names of candidates to the county clerk not less than fourteen days before the election, *i. e.*on or before October 24th in the present *3year. Tbis petition was received September 21st. If an action were to be brought in tbis court, tbe complaint would bave to be served, sufficient time given to answer, a trial bad after fair opportunity to prepare tbe defense, and a final decision rendered after due bearing witbin about four weeks. It seems certain tbat there would be an issue of fact wbicb would bave to be sent to tbe circuit court for trial. Sec. 2408, Stats. It is quite manifest tbat there would be no certainty tbat any result could be reached before tbe time when action must be taken by tbe secretary of state; in fact there is an extreme probability tbat no result could be reached, even if tbe case were given tbe most rapid expedition consistent with due consideration of the questions at issue. If it appeared tbat tbe case could be decided upon an issue of law without tbe trial of any fact, tbe question would be different. Under tbe circumstances, we feel tbat tbe original jurisdiction should not be exercised in tbe present case. There should be a reasonable certainty that a result could be reached wbicb would be effective in order to justify tbe use of the original jurisdiction. It is too great a power to be used hastily, or to accomplish an impotent result.

*By the Court.*— Motion denied without costs.