77 Wis. 601 | Wis. | 1890
The demurrer ore tenus, or the defendant’s objection to any evidence under the complaint, on the ground that it does not state facts sufficient to entitle the relator to recover, by stipulation stood as a general demurrer on the same ground, and as such was overruled, and the defendant has appealed to this court from said order.
This is a proceeding in quo wa/rrcmto to inquire by what right the defendant holds and exercises the office of county judge of the county of Columbia in this state. The complaint states, in substance, that at an election held in the several election districts in said county on the first Tuesday, it being the 2d day, of April, 1889, for the office of county judge in said county, for the term of four years commencing on the first Monday of January, 1890, the said relator, E. V. Briesen, and the said defendant, Levi W. Bar-den, both residents and qualified electors of said, county, and eligible to hold said office, were the opposing and only candidates for said office, and at said election the said Briesen received 1,413 votes, and the said Barden received 2,565 votes, but all of the votes so cast for said Barden were ballots on the back of which was printed the word “Judiciary ”
The only question on the demurrer was whether the said ballots so cast for the defendant, Bearden, with such an indorsement thereon, were lawful and valid ballots. The learned counsel of the relator made a very able argument, and cited many authorities to show that said ballots were void (1) by the constitution, and (2) by the statute. The learned counsel of the defendant, with equal ability, contended that they were valid, and properly voted, counted, and canvassed for the defendant.
The learned counsel of the relator correctly contends that the question is, ’Which of the two received a majority of
What does such secrecy mean? In what respect? And what does it consist of? A vote is the wish or will of an elector, whether expressed by ballot or rima mee. That wish or will expressed by a ballot must not be known to any one except the voter himself, by such ballot. The paper called a ballot must not disclose for what or for whom it is voted, except by the name of the person voted, for and the office on the face thereof. If it has any mark or device on the outside, and visible or apparent to common or casual observation, that discloses for what or for whom it is voted, it is not a ballot. This I understand to be the strict meaning of a constitutional ballot; but this construction of the constitutional requirement must be reasonable. It would almost seem that whatever mark there might be on the ballot by which it might possibly be known how the elector voted, to invalidate it, ought to have been placed there by
Judicial elections are required to be held on the day of the town election when the town officers, or, if in the cities, the city officers, are elected, and the votes for both are received at the same time. The statute (sec. 89, R. S.) requires that “ all votes given for any [judicial] officer shall be put in a ballot-box separate from that used for any other election on the same day.” How can this be made practicable? The election officers are ready to receive the ballots for town officers and for any judicial officers to be then elected. If a ballot is offered, how can they teE what baEot it is, whether town or judicial. The same elector votes for both at the same time. Must they ask the voter whether it is a judicial or a town ticket ? If he answers, “ It is a judiciary ticket,” as he must in order to have it put into such separate box, has he disclosed any important secret that may indicate how or for whom he votes? Evidently not. Many electors would not
But it may be answered that, in this instance, only the defendant’s ballots were so distinguished, and therefore any one could know that the elector, if he cast such a ballot with that word on it, voted for the defendant and not the relator, and thus the mischief is accomplished. That shows that it is not the ballot itself that is at fault, but the use
From practical necessity, then, we say that it was proper and constitutional to print on the defendant’s ballots the word “ Judiciary,” and for the electors to vote them. It was for the high and wise purpose of not having judicial officers and candidates for such offices exposed to the feeling and excitements of political, popular, and general elections that the constitution has provided that such elections should not be held at any general election. Art. VII, sec. 9. To save the great expense of special elections, the legislature provided that they should be held on the same day of town elections. To carry out both the constitution and the statute, it is necessary that there should be separate ballot-boxes, and that the votes for judicial officers should be put in a ballot-box separate from that used for town officers on the same day. It is therefore necessary that there should be something on the ballot to indicate to the election officers in which ballot-box to deposit the vote, if in itself it does not indicate how the elector votes.
It is very clear that the statute (sec. 10, ch. 464, Laws of 1885) making it an offense for any person to print any bal
This case may well stand as an exception to the rule that no mark of any kind must be placed on the backs of ballots to be voted at any election, from the peculiarity and necessity of the case. In all other cases, the law may well stand as contended by the learned counsel of the relator, and approved by the authorities he has cited. None of such authorities militate against the view we have above
It follows from the above views that the complaint does not state a cause of action, because it appears therefrom that the defendant received a majority of the legal votes cast at said election, and is entitled to the office as against the relator.
By the Court.— The order of the circuit court is reversed, and the cause remanded with direction to sustain said demurrer, and for further proceedings according to law.