The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1923-03-29


suit and has neither been asked nor
refused to do so, the relator Symmonds
is estopped from instituting the action
even though he does it in thename of
the state of Wisconsin, because he has
had his day in court or the questions
involved and having elected his pro-
| ceeding when he had a recount and
the proceeding on appeal in this court,
ne is barred by the rule res judicata,
or that the thing has already been adj
Indicated, and therefore may not main
tain this action.
Section 3466 of the Revised Statutes
provides that when any person shall
usurp, intrude into or unlawfully hold
or exercise any public Office an action
may be brought by the attorney-gen-
eral in the name of the state, upon his
own information or upon the complaint
Of any private party, or that such ac-
ton may be brought in the name of
the state by private person on his
own complaint when the Office usurped
is county Office. The relator has the
right to bring this action in the name
of the state and it was not necessary
to first ask the attorney-general to do
so. Counsel for the defendant alleges
that the relator Symmonds is estopped
from instituting this action because of
the previous recount proceedings and
the appeal to and Judgment in this
court.
Section 6.66 R. S. after providing
for the recount proceedings ard the
appeal already had provides as follows:
Nothing in this section shall be con-
strued to abrogate any right or rem
edy that any candidate may now have
affecting the trying of title to office"
This conclusively answers the conten-
ton that the relator is estopped by
the rule res judicata from instituting
and maintaining this action. Aside
from this express statute it is estab-
lished by the great weight of author
ity that a statutory remedy or provi-
sion for a recount is cumulative and
not exclusive, in the absence Of ex-
press provision to the contrary in the
statute; and that the use of quo war
ranto to inquire into the validity of
an election to public office is not linn
tied or superseded by statutory provi-
sions for canvassing ballots and de-
claring the result of an election. 50
eye 1419 ct, SEQ. AS means of trying
title to an office, proceeding by quo
warranto offers an advantage over the
statutory contest in that the latter does
not preclude separate inquiry by the
state, while the former is conclusive
upon all the parties interested, the
state as we'll as contestants.
"32 eye 1921. Quo warranto juris-
diction conferred by the constitution
can not be taken away by legislative
enactment or change in the form Of
remedy, although new procedure may
be adopted. So when jurisdiction in
quo warranto is conferred upon the
courts by the constitution Of the state,
the creation by the legislature of an
other remedy for contesting elections
will not deprive the courts of that jur-
isdiction, and quo warranto will lie to
test the title to public Office, notwith
standing the existence of a statutory
remedy for the same purpose. The
tendency of contest, under a statu-1
tory proceeding between rival claim
ants to a public office, to determine
which Of the two was elected, does not
impair or affect the right of the state
to proceed at the same time by in
formation against the incumbent of
the office. The better considered doc
trine undoubtedly is that the existence
of the statutory remedy does not GUST
the jurisd iction of the courts by quo
warranto, or prevent the people from
resorting to this remedy to determine
questions of usurpation of public Office.
"a proceeding in quo waranto is not
an election contest between rival claim
ants of an office, but Is rather a pro-
ceeding by the people in their sover-
eign capacity. High Extraordinary
Remedies, 615 ct. seq. State ex. rel.
VS.. Raisler, 1873 Wis. 672. Election
contests and quo warranto proceedings
differ materially in the primary and
principal objects for which they are
brought, as we'll as in their procedure,
Election contests are usually insti-
tuted within 4 prescribed period after
the election, by or on behalf Of the
unsuccessful candidate for the purpose
of establishing his right to the par
ticular Office in controversy. Quo war
ranto proceedings, on the contrary,
deal mainly with the right of the in
cumbent to the Office, independent CT
the question who shall fill 1t. They
are brought in the name and on behalf
Of the people to determine whether the
Incumbent has. unlawfully usurped or
lntruded into or is unlawfully holding
the office. They are not, primarily, in
the interest Of any individual, but are
intended to protect the public general
ly against the unlawful usurpation of
Offices and franchises,
"In view Of this distinction, it is
clear that the right to proceed by quo
warranto Is not necessarily abrogated
by the institution OF statutory pro-
ceodnigs for the contest of election.
In fact, the general rule Is that unless
the legislative intent to take away the
jurisdiction by quo warranto Is ex-
pressed so clearly 80 as to be beyond
q reasonable doubt, 1t will be regarded
as undisturbed. % r. G. Z, p. 679.
9 re. L., p, 1857, In such an action,
the real issue Is the determination of
who received plurality Of the legal
votes east at the election. It there