The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1924-01-03
Decision is Handed Down Today by Circuit
Judge Finding Symmonds is Not
the District Attorney.
SYMMONDS COMPLAINT DISMISSED
Judge Beden Holds Barnett Entitled to Office Under
Supreme Court Decision and Certificate Has
Not Been Worn Down by SymmOnds.

misconstrued the meaning of the deci
sion wherein he relates to the impel-
ling motive. All of that part of the
supreme court decision was used in
reference to the pleading and not with
reference to the question of burden of
proof. hold if the supreme court
intended that the language so
used was to be in regard to the bur-
den of proof, it would have stated so
because such ruling would unques-
tionably overrule whole line of de-
cisions and some of them recent ones.
In actions of quo warranto had the
court intended a different burden of
proof to be required, believe it would
have stated it clearly for the benefit
of the trial court and of the parties
TO the action. There have been no less
than two decisions in reference to this
character of pleading but nowhere has
the supreme court held that the bur-
den of proof was different than main
tanned in former court decisions"
Certificate is Attacked.
Mr.. Symmonds declared that he con-
sidered that the certificate of election
,
fact that it was held that a tie vote
was cast, this automatically attacking
the certificate.
1t appeared certain from the tenor
CT the interview that the end was not
yet in the mooted election but that
the case would go again to the SUI
preme court for decision.
JudCe's Decision in FuII
Judge Belden's decision in the case
reads in full as follows:
'The judgment of this court in the
quo warranto action declaring the re-
lator, Symmonds, entitled to the Office
of district attorney and ousting the
defendant, Barnett, therefrom, was
based upon rejection and apportion-
ment of large number of votes held
by this court to have been illegally
received and counted. The supreme
court did not agree with this view
and remanded the case with directions
to make further findings and enter
judgment thereon.
Barnett Holds Office. ~
"The situation now is the same as
instituted by the complaint, that is,
the defendant Barnett is in posses
sion of the Office by virtue of GER
tificate of election issued upon the de-
termination of the county board of
canvassers that he had been duly
elected to the office of district attorney
by the greatest number of votes (Which
was a majority of one vote), confirmed
by the subsequent judgment of this
court upon an appeal recount, that he
had been elected by a majority of
twenty votes. Then this action in quo
warranto is instituted in the name of
the state of Wisconsin, upon the COM
plant of Symmonds, plaintiff VS.. Bar
nett, defendant, the alleged purpose of
which is to inquire in behalf of the
people into the right and title of the
defendant, Barnett, to hold said of
fee.
An Election Contest.
"The supreme court decided in this
case that although Symmonds had the
right to institute and maintain this
action in the name of the state, the
action is in truth and in fact an cleo
tion contest between rival claimants
to the Office wherein the complainant,
private person, claims to have re-
ceived a majority of the legal votes
cast and to be therefore entitled to
the Office. The complainant also alleg-
eS that the defendant did not receive
the majority of the legal votes cast
for the Office, that no valid election
,Iai H.
ing the predecessor in said office, holds
] over until his successor is duly elect
ed and qualified.
Upholds Tie Vote Count.
eve need not go back to the referees
count, confirmed by the court, for the
correctness thereof so far as the num-
Der of votes is concerned is stipulated
in the case by both parties. The vote
thus determined is, Barnett 1929, SYM
monds 4409 a majority of 90 votes for
| Barnett. Certain ballots denominated
absent voters ballots are in question.
The supreme court affirmed the view of
this court that these ballots should be
counted. Of these absent voters bal
lots are given to Barnett and % to
| Symmonds. These ballots were not
counted by the referee or this court
| heretofore. Adding them to the num-
Der of votes received by each candi.
date, respectively, as before stated,
gives each a total of 4432 valid votes.
Therefore the result at this point is,
as said by the supreme court, a tie
vote between the parties This situa-
ton is accepted by the parties upon
the instant hearing. The supreme
court leaves the case at this point,
without determining which party is
| entitled to the Office and remands it
1 to the circuit court with directions to
/ consider other irregularities which at
the time of the disposition of the
case in that court were deemed of too
/ trifiing a nature to affect the result
and, deeming new trial unnecessary,
to make further findings upon the rec
ord as it exists and enter the proper
! judgment pursuant to such findings
"The 'otherN Irregularities referred
| to are:
Lists Other Irregularities.
Il. Certain votes received upon de
fective affidavits from voters whom the
circuit court heretofore considered un-