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

to show that he is victor, then Bar
nett wins; if the burden of proof rests
upon Morris Barnett, then Symmonds
wins. This, it is believed, is the pres
ent situation.
Each Disclaim the Burden.
Frank Symmonds argued that the
burden of proof was upon Morris Bar
nett, as in every quo warranto pro-
ceeding wherein the state is a party.
He insisted that Barnett's certificate
of election had been sufficiently shak-
en- and that it was up to Barnett to
show that he had the majority of
votes.
Calvin Stewart, as attorney for Bar
nett, insisted on his part that the bur-
den of proof was upon Frank Sym
monds. He declared that it was the
whole tenor of the supreme court de-
cision and that that document took
Frank Symmonds to task for urging a
private suit on a quo warranto or pub
lie method of procedure.
Therefore" concluded Stewart, "we
are here dealing with Frank Symmonds
as with any plaintiff in any election
contest and the ashpTden Of proof is
upon him."
Text of Decision
The text of the supreme court de-
cision upon which Stewart relies in his
claim that the burden of proof rests
upon Symmonds reads as follows:
"The legislature perceived a clear
distinction between an action brought
by the attorney general or by dis
interested private, person to vindicate
public interests, and an action brought
! by defeated candidate to establish
title to office. The strict provision re-
curing the latter to state the names
of the persons whom such relator shall
claim voted illegally at such election
was no doubt inserted for the express
purpose of discouraging the bringing
of such actions where the compelling
motive was the establishment of pri-
vate rights rather than the vindication
of public interests.
ga consideration of the complaint
as a whole i'll conceals the REALTORS
Crank SymmondsD personal interest
in the controversy and quite as futilely
reveals, as an impelling motive, the
purpose of redressing the grievance Of
an outraged public. In the first place,
relator starts in to lay broad and sure
the foundation of his own claims to
the office by alleging his appointment
and qualifications as district attorney
and the fact that his term of Office
extended, until the first Monday in
January, 1923, and until his successor
qualified.
"What place does such an allegation
have in a complaint by the attorney
general or by one seeking to vindicate
only public interests? Then he alleges
that of said 583 votes and ballots
there should be determined the pro-
portionate number of such illegel votes
for each candidate in each of said
wards to be deducted from the whole
number of votes cast for said relator
and said defendant, respectively To
say the least, this peculiar allega-
tion in a complaint on behalf Of the
public to set aside the result of
fraudulent election! And a part of
the prayer for relief is that said
Frank Frank Symmonds be entitled to
have, hold and exercise said office as
the duly qualified district attorney for
AeHOSHd COUNTY, w lSCOuSiH. OHe can
not avoid the conclusion that this ac-
tion would not have been sponsored by
the reator were it not for the private
interest involved.
Judge POnders Decision.
Judge Belden played a lonesome
game all by himself through the twi-
light of Christmas eve and continuing
presumably today, the game being the
one of finding who is district attorney
of Kenosha county. The only last
minute shopping the circuit judge did
was in behalf Of Kenosha county. He
went to his chambers in the circuit
court here on Monday afternoon where
he closeted himself with the supreme
court decision, the attorneys briefs
and the cases cited.
This morning Judge Belden said that
a decision in the case was not yet
Forthcoming but would be rendered
within the next few days. 1t is un-