The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1924-01-03

registration, further consideration OF
these votes is eliminated because such
voters were among the number whom
the record accepts as having voted at
the primary election and as therefore
being duly registered for the general
election This situation and conclu-
sion is not now questioned and was IN
fact found by this court in its ind
ings heretofore made in the ease.
SO. The returns from the Third
ward show four ballots fewer than the
number of persons listed as voting.
Obviously the court can do nothing
about that.
Goes Into Ballot Shortage.
So In each the Second and Ninth
wards the returns show two ballots IN
excess of the number of persons list
ed as voting and in each the Seventh
and Eighth wards one ballot in ex-
cess of the number of persons listed
as voting, a total of six excess ballots.
These excess ballots cannot be said
to be illegal votes for there is no evil
dence upon which to base such con-
clusion. 1t was the statutory duty of
| the election inspectors to withdraw
such excess from the ballot boxes by
chance and count the ballots remain
| ing, corresponding in number with the
number of persons listed as voting but
they did not do so and no authority
exists for doing that now. In both
cases of the shortage and the excess
of ballots we may only surmise that
/ the difference occurred through some
unexplained mistake, neglect or over
sight. The shortage may have resulted
from voters being listed and then
| leaving the polling place without de-
posting their ballots. The excess
may have resulted from the election
officials failing in their duty to list
persons who actually voted, but such
failure of duty the supreme court says
er. In any event and whatever the
unexplained reason for such shortage
and excess the court can do nothing in
regard to either and so there still ex-
lists at this point a tie vote between
the parties There is no evidence upon
which to base any other conclusion.
If the excess votes were proportional
between the candidates it appears that
| Symmonds would have about one
fourth of one vote majority. But there
! is no authority for now rejecting and
apportioning legal votes, which the ex-
cess ballots are considered to be. The
court considers the final count of the
county board of canvassers and the
referees count as confirmed by the
| court to be unimpeached and verities.
AS before stated, they have been so
stipulated and accepted by the parties
! in the case. 1t is claimed and con-
coded by both parties that one claim
ing an election must show that he re-
ceived a majority of the valid votes
cast. This is the rule. Each party to
this action claims the other is the
claimant and has the burden of proof.
The complainant claims that inasmuch
as the integrity of the certificate of
election held by the defendant is at
tackled the burden rests upon the de-
PENDANT to. uphold it. The defendant
claims that inasmuch as the complain
ant is the contestant, as private per-
son, the burden is upon him to show
the returns and counts to be untrue
and that the certificate of election does
not speak the truth.
F Burden of Proof Discussed.
aThe rule in an election contest,
| where the complainant is a private per-
son claiming to be entitled to the of
| fee is that the burden of proof is upon
| the contestant The supreme court
| said in this case that although the
I,Ielator had the right to institute this
quo warranto action in the name of
| the state to inquire by what right the
defendant holds the Office, the action
is in truth and in fact an election
contest between rival claimants to the
l-office and characterizes the action as
one where the compelling motive was
the establishment of private rights
rather than the vindication of public
| Interests The supreme court also
says, The statute undoubtedly lays a
burden upon a relator who claims to
have received majority of legal votes
at an election that is not imposed upon
the attorney general, or other private
| person, who may bring the action. This
is deliberate legislative provision
and was no doubt enacted for pur-
pose. The legislature perceived clear
distinction between an action brought
by the attorney general, or by a dis
interested private person to vindicate
| public interests, and an action
brought. by defeated candidate to es-
tablish title to an Office
Burden on Relator.
1T is generally held that the bur-
den is upon the party who seeks to al
ter the existing status, and that where
the contest is primarily between a pri-
vate relator and the defendant the
burden is upon the relator, % rel Al;
| Genl. VS.. May, SO N. w. 483. In the
absence of a statute controlling, where
| the court finds that the contestant and
the contestee received an equal num-
Der of legal votes the judgment should
be that the contestant takes nothing.
| 20 c. J. 262. The rule as to burden
of proof is concisely stated thus: AS
between the people and the defendant,
the latter has primarily the burden
of proving his possession to the Office
to be rightful and lawful; but as be-
tween the relator and the defendant,
the former has the burden of proof to
show his title to the office to be bet
ter than that of the defendant Ency.
! Ev. 1913. So the situation is thus:
We are back at the point in time when
Symmonds instituted this action We
| find Rarnett holding the offipa NV vir