The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1923-06-07

COACGueu VI pEONSu tndb 4iLC6ai fo1Co
have been received and canvassed, and
brought before the court by proper
proceedings, it is the duty of the court
to adopt either one of the three
following alternatives:
~ Declare the election void.
~ Divide the illegal votes between
the candidates in proportion
to the whole vote of each.
(3) Deduct the illegal vote from
the candidate having the high
est vote.
Took Only Possible Way.
There is no reason for declaring the
election void. To deduct the illegal
vote from the candidate having the
highest vote would be manifestly I'M
just, no fraud being charged or ap-
+, pearing The second alternative is
the method adopted by the great
weight Of authority as the fairest and
most equitable that can be devised
under such circumstances, that is, to
divide the illegal votes between the
candidates in proportion to the whole
vote of each. 1t is the vote in these
two election districts only, the sixth
and eighth wards, that is in question
in this proceeding, not the vote Of the
whole county. In the other fifteen
election districts the vote stands as
cast and canvassed. Manifestly the
rule of proportioning votes should be
restricted to the election districts
questioned. If a state office were in
question and the vote in the sixth and
| eighth wards of the city of Kenosha
should be challenged, the investigation
would be restricted to those election
! districts, the illegal vote therein de-
termined, and the proportion cast not
upon the whole number of votes re-
ceived by each candidate throughout
the state, but only in the specified
questioned districts. That might change
the result of the state election.
District Means District"
The same reasoning applies to the
instant case. When the vote in GER
tain election districts only is ques-
toned the inquiry and the whole pro-
cedure is properly restricted to those
districts 1t would not be proper to
determine the number of illegal votes
cast in the questioned districts and
then add the vote of the fifteen other
election districts in proportioning
such illegal votes. District means
district and not the whole territory
involved in the election. In Ellis VS..
May, SO N. w. 483, the supreme court
of Michigan held that where the lille
gal votes can be separated from the
legal votes cast, the illegal votes
should be taken from the total vote
proportionately, according to the en-
! tire vote in the district for, each can
didate. And the court said no other
mode would be preferable to that of
deducting from each candidate num-
Der of votes proportional to his total
vote, compared with the aggregate
vote of the district. The supreme
court of South Dakota in Briggs VS..
I Christ, 1874 N. W. 321, 1923, cites Ellis
VS.. May, supra, with approval and says
that proportioning is a fair way to
arrive at results; that such rule is
based upon the proposition that the
illegal votes have gone into the ballot
boxes without the fault of either can
! didate. If these illegal votes can be
! SOPStAoSOO LAO44A LIAS legal FOIC9, 81 l1dG
the number is substantially 1scertain-s
ed, then the poll is too large by that
number and they must be cast out.
This case also treats precinct or
! election district as a division of a
city. This rule is announced in
R. c. L. p. 1149, and Barker VS..
Hughes, 81 Kan. ZIG, Sc L. R. A.
275; as follows:
at has been considered reasonable
to deduct from the votes of each can
didate number in proportion based
upon the relation that the vote of
each candidate bore to the whole vote
cast at the precinct.
No Evidence in Other Wards.
That the relator alleges in a gen.
eral way that the illegality charged
in other election districts, without
specifying in what districts and in
what manner, was of no significance
in the case. He did not specify and
no evidence was offered or considered
concerning other districts except as
mentioned in the decision upon which
Judgment is based. In any event the
defendant had ample opportunity to
bring other districts in if he desired
so to do. Had he done so the result
might have been, as he suggests, diff
ferent. l do not know how that might
have developed, but it is certain that
1T was not the duty or proper func-
ton of the court to go beyond the
issues as made up by the parties. I
am satisfied that there was no error
in the method adopted by the court
in proportioning the illegal votes and
that the defendants motion, for 1e-
hearing should be denied.
Rehearing and Stay Denied.
1t is the intent of the statute and
of the general law concerning. pro-
ceedings in quo warranto that when
a determination is reached by the
court it shall be effective immedi-
ately. 1t is not consistent with the
manifest purpose and intent of the
law that there shall be delay in
execution of the judgment. Therefore
a stay will not be granted.
Dated June 1, 1928.
E. B. Belden,
Circuit Judge"