The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1923-03-29
Judge Belden Hands Down Decision Today
Holding F. S. Symmonds Has Cause
for Action in Quo Warranto.
TRIAL TO TEST PROSECUTORS TITLE
Under the Judges Decision Morris Barnett Must An
swer and District Attorney Contest Will be
Carried Into Court Again.


into court with his proceedings in quo
warranto to test the right of Morris
Barnett to the title Of district attorney
OF Kenosha county. Barnett through
his counsel had filed a demurrer to the
complaint IN quo warranto of Sym
monds, on the grounds that Symmonds
could not start such suit as a private
individual because he had already been
defeated in circuit court on another
line Of action in the same case; and
Barnett also held that he could not
come into court as he did in the name
OF the state of Wisconsin except thru
and with the authorization of the at
torney-general.
This demurrer was over-ruled by
Judge Belden% and the door to court in
quo warranto is opened to him under
the decision handed down this morn
ing. The result will be an interesting
contest in quo warranto to test the
title of Morris Barnett to the title of
district attorney, though he holds the
certificate of election issued him by
the county clerk upon the judgment
and order of the circuit judge after the
contest had been carried into the cir
cult court once by Frank Symmonds.
Can Come to Court Again.
The battle that was carried around
the merits of the demurrer was upon
she issue of whether Frank Symmonds
had a right to come into court again
after being once defeated there in the
same cause, On this point Judge Bel
den's decision reads as follows:
THE relator (Symm has the
right to bring this action in the name
OF the state and it is not necessary to
hrst ask the encouragement to do so.
counsel for the defendant (Barnett)
alleges that the relator Symmonds is
estopped from instituting this action
because Of the previous recount pro-
ceedings and the appeal to the iudg-
ment in this court. Aside from the ex-
press statute to the end that nothing
in this section shall be construed to
abrogate any right or remedy that any
candidate may now have affecting the
trying of title to Office" it is estab-
lished by great weight Of authority
that statutory remedy or provision
for recount is cumulative and not
exclusive; and that the use of quo
warranto to inquire into the validity
of an election to public Office is not
Limited or superseded by statutory pro-
visions for canvassing ballots and de-
claring the results of an election"
Doesn't Decide Voters Legality.
Judge Belden's decision does not af-
feet the case farther than to permit
Frank s. Symmonds to get into circuit
court with his case in quo warraAto.
The circuit judge does not make any
reference to the contention Of Frank
Symmonds in his complaint that 500 of
the voters in the sixth and eighth
wards voted Illegally, as all these and
similar questions will be brought out
in the course of the trial in quo war
ranto in circuit court. No date has
been set for this trial.
Neither Morris Barnett nor his attor-
, ney, Calvin Stewart, were ready today
to state when the answer to the COM
plant of Frank S. Symmonds will be
made and filed, but Mr.. Symmonds
upon his side was iubilant at his VIC
tory in the first lap Of the contest.
Decision in Full.
Judge Belden's decision upon the de-
murrer is given in full as follows:
Pursuant to the result of the Sep
TENDER, 1922, primaries, the relator,
Frank S. Symmonds, was the candidate
on the Republican ticket, and the de-
PENDANT, Morris Barnett, was the can
didate on the Democratic ticket for
the office Of district attorney for Ke-
nosha county at the November, 1922,
general election.
1.-THE first canvass of the votes gave
relator majority of Fl votes. Both
candidates duly asked recount. The
result of such recount gave the de-
PENDANT Barnett majority of one vote.
Symmonds appealed to the circuit court
and it was there determined that Bar
votes and certificate of election was
issued to him by the county clerk,
"Now, Symmonds complaining in be-
half of the state, the public, brings an
action in quo warranto in this court
to try the title Of Barnett to said Office.
Relator alleges that great number of
votes were cast at the November cleo
tion by persons not duly registered or
sworn in as qualified electors and that
said election is therefor invalid. Sym
monds does not now claim he was
elected district attorney at said cleo
tion, but that because the election was
and is invalid Barnett holds the Office
Of district attorney unlawfully and
should be excluded therefrom and the
Office thereby becoming vacant, he, the
relator, being the immediate predeces-
sor in such office. should keep and &C.
cupy it and exercise its functions by
virtue of holding over.
"This action to question Barnett's
title to the office Of district attorney
IS brought by the relator Symmonds in
the name of the state, the title of the
action being %The State Of Wisconsin,
upon the complaint of Frank. S. Sym
monds, plaintiff, VS.. Morris Barnett,
defendant" The defendant demurs to
tho complaint for the reason that 1t
does not state facts sufficient to con-
stitute cause of action. Counsel for
defendant comedies that this action
might be brought by the attorney-gen-
ayal in behalf Of the state, even though