The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1923-11-01
FAIL IN ATTEMPT TO
''DETHRONE' SYMMONDS
Attorney Calvin Stewart Brings Test of Author
ity of Symmonds as District Attorney
In Circuit Court Today.
JUDGE HOLDS SYNIMONDS IN POWER
Action Comes in Form of Plea in Abatement in Case of
Charles Rogers, Charged With Manslaughter
in Death of Clarence Jensen,

trolling, where the court finds that the
contestant and the contestee received
an equal number of legal votes, the
judgment should be that the contes-
tant takes nothing" 20 G. J. 262 and
cases there cited.
"Where two candidates for alderman
received an equal number of votes
and one of them has received GER
tifcate of election, the other candi-
date cannot maintain a proceeding to
Gust the one awarded such certificate"
"Where two candidates for alder
man have received an equal number
of votes and one has been declared
elected, and is in possession of the
office, he is the prevailing party in a
suit to GUST him." 1918 A. Ann
In Murray VS.. Waite Main 485,
the court said:
Upon the whole, it appears that the
petitioner and the respondent has re-
ceiyed 794 votes that should be count
ed, and that the ballot was a tie. 1t
follows that the petitioner was not
elected, and not having been elected,
he cannot maintain these proceedings
to GUST respondent"
"The contestant must establish his
right to the Office upon his own title"
Jones VS.. GlidewelI 7 L. R. A. 831;
Benner VS.. Payson, 10 Me. 204;
Libby VS.. English, 10 Ne. 449.
"The sitting justice dismissed the
petition with costs The statute,
R. S. Chap. 6, Sec. IA says the pre-
yailing party shall recover costs
Under that statute the prevailing
party is entitled to costs as matter
of law. The question of whether any
costs shall be awarded is not left to
the discretion of the sitting justice
as in equity. And we think the
respondent, 50 far as this proceeding
is concerned, is the prevailing party.
Mo be sure we find that he received no
more votes than the petitioner did.
But he received the certificate Of cleo
ton, he qualified as alderman, he is
now in possession of the Office. He
is alderman de facto. The petitioner
brought this petition to get himself
declared elected, and thereupon to
ousted the respondent. He has failed
to do so. He has not ousted the
respondent. The respondent is not
affected by the result. He holds the
Office under the forms of law. Whether
he may be ousted in some other form
of proceeding is not now the question.
For the present, the respondent has
prevailed. AS the case stands, we
think it is fairly within the meaning
of the statute as to costs. f
The defendant, Barnett, followed
the rule in the trial as laid down
by the court.
The legal proposition being sound,
he was, at all times and still is, dis,
trict attorney of Kenosha county.
Attorney Stewards plea in abate-
ment read: "Now comes the defen-
dent, by Stewart and Vaadreuil, his
attorneys, and interposes this, his
plea in abatement, and demands that
this action be abated for the reason
that the information is void, and
not filed or signed by the district
attorney of KenQsha county, as pro-
yided by law"
Pleads Not Guilty.
The court laid aside the papers
which he had scanned, and turned to
Attorney Vaudreuil, who stood at the
bar beside the defendent.
eve enter a plea of not guilty."
the attorney said.
Then the clerk began the work of
panelling the jury to try Rogers.
Police records show that on August
TO-, Rogers, while driving a truck
which he had taken without permits
sion, collided with motorcycle be-
ing driven by Clarence Jensen, 10
years old, on the Kilhourn road, nine
miles from Kenosha.
After the accident Rogers fled from
the scene of the crash and was not
picked up by officials until his victim
had died at the st. Mary's hospital,
Racine, where he had been taken.
Rogers, could not explain to the
satisfaction of the county officials why
he ran away after the accident
Investigation showed that he had
formerly worked for E. G. Russell,
Kenosha road contractor as truck
driver, and that to save the expense
of moving his household effects, he
had appropriated the machine, with
out the consent of the owner.
Rogers wife and two small children
were with him in court today.