The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1923-12-27

! In brief, Symmonds claimed that he
could show a fraction of vote in his
favor; that the burden of proof was
upon Barnett to show he had ma
jority and that he had not done so;
and that if he, Symmonds, had not
shown that he was elected there was
no election and he is entitled to the
! Office as a held-over.
Stewart argued that the certificate
of election issued to Morris Barnett
had not been overcome; that the bur-
den of proof was upon Symmonds as
upon every contestant in an election
dispute; that only illegal votes could
be proportional and that if Judge Bel
den did proportion the six it would
leave Symmonds behind, and that Bar
nett has all along been district attor-
ney of Kenosha county by right.
| The argument is given below. It
will be remembered that under the
supreme court decision, there were no
"illegal" voters, thereby sustaining
the earlier findings of Referee Welch,
except with regard to absent voters
ballots.
| How to Break the Tie v
i Frank Symmonds argued as follows:
He said that the results of the cleo
ton as shown by Referee Welch's
findings, gave 4409 votes to Symmonds
and 1929 to Barnett, or majority of
20 for Barnett. Under the supreme
court decision Welch's findings on the
whole were correct and the only
change in this is with regard to the
26 absent voters ballots, and one or
two minor irregularities. The supreme
court says the absent voters votes, %
for Symmonds and 3 for Barnett, must
be counted. This makes it 4432 to
ASA tie.
'Now for the minor Irregularities"
said Symmonds. There were six ex-
| cess votes, that is six more votes than
the books show ballots issued. Two
in the Second ward, two in the Ninth
ward, one in the Seventh and one in
the Eighth. These may be deducted
| proportionately as bearing ratio be-
| tween the total number of votes each
! candidate received and the fetal num-
! Der Of votes cast. These six ballots
| are sufficient to change the results as
shown by the tentative votes in which
there is a tie. No one knows for when
these six votes were cast. They are
I sufficient to show grave uncertainty
in the result Of the election. L am
not saying that there is any authority
for proportioning these votes, but am
pointing it cut as a way your honor
may use. By so doing it will be found
that there is one-fourth of a vote in
favor of the relator, Symmonds.
IF in addition your honor could
apportion the four missing ballots,
there would be fraction over one
vote in my favor.
''It comes down to a question of the
burden of proof. We claim that the
burden of proof is upon the defendant,
Morris Barnett. He has not shown by
competent evidence that he has been
elected, and therefore a judgment of
custer should follow.
IF we have not shown that we are
we hold over"
Stewart in Argument.
Calvin Stewart in behalf of Morris
Barnett said:
"This case has been to the supreme
court and back again, the motion of
Mr.. Symmonds for a re-hearing in the
supreme court has been denied, and l
thought we would not be bothered any
more. The supreme court says that
this is a case between rival candidates
in contest for Office, and not proper
qua warranto procedure under the
common law.
81 therefore challenge Mr.. Symmonds
to show that the burden of proof is
upon the defendant, Barnett. The
contestant takes nothing from the con-
testee unless he proves that he has
the majority.
"A certificate of election was issued
to Morris Barnett and Mr.. Symmonds
cannot show just tie in order to ov-
ercome the presumption in favor of
that certificate.
MIR. Symmonds now asks your honor
to apportion again. In the Second and
Ninth wards, where ne received a ma
jority of the votes cast, there were
four additional or excess ballots. Of
course if these should be apportioned
properly that would go against him
In the Third ward there were four
missing ballots. We do not know what
became of those ballots 1t is possible
that four men came in, received bal
lots, and did not know how to vote, or
were ashamed, or for some reason left
the voting place without dropping their
ballots in the box.
Your honor cannot proportion any
votes unless they have been shown to-
be illegal.
Further, Mr.. Symmonds claims that
he has right to the Office as a hold
over. This is absurd. He could only
have that right in case the election
had been shown to be illegal. 1t has
not been so shown. Your honor held
that it was a valid election, and was
sustaining in that by the supreme
court who also held that the election
was valid.
Barnett has all this time been dis
trict attorney of Kenosha county, and
the burden of proof has been on the
contestant, Frank Symmonds, as in all
election contests to show that he was
not entitled to the Office. We hold
that Barnett was and is district at
tori re