State ex rel. O'Neill v. Trask
115 N.W. 823
Wis.
1908
Check Treatment
SiebeckeR, J.

The court rejected the votes of Mr. Town-sley and Mr. Kailin, which the inspectors of election had received and counted in favor оf the defendant. There is no dispute that they were qualified electors of such ward on election day and that they were not enrollеd on the registry of electors for this election district. On election day they offered their ballots and respectively delivered their affidavits to the election officers, stating that they were residents of the ward, citizens of the United States (or that they had de-*336dared their intentiоn, to become such citizens), that they were of lawful age, and had resided in the state one year and in the election district for ten days. Each one also odfered an alleged corroborating freeholder’s affidavit. There is some-dispute as to whether these аffidavits were in fact properly executed and sworn to before the officers, but we need not consider this question, since we are persuaded that the affidavits of the electors and the freeholders do not comply in substance with the requirements of the statute. As sеt forth in the statement of facts, these affidavits fail to- state that since the completion of the registry of voters the person offering to vote has become a qualified voter of such district; that he was a voter at the last previous general election in the distriсt where he offers to vote, and has not since become disqualified by removal therefrom or otherwise; or, if removed therefrom, thаt he was then a legal voter of this ‍​‌‌​‌​‌​‌​‌‌​​‌​​‌‌‌​​​​‌‌​‌‌​​‌‌‌​‌​​​‌​‌​​​‌‌‌‍district, or has otherwise become a qualified voter thereof under the provisions of see. 61, Stats. (1898). An inspection of the affidavits discloses that they are defective in these essential particulars and fail to show that these persons were qualified to vote in this election distinct when they presented their ballots to the inspectors. The' affidavits presented contаin no more than a statement of the constitutional qualifications of an elector, and wholly omit to show-the necessary facts to prove their right to vote as nonregistered voters in the district where they offer their ballots. These defects of substance in the affidavits respecting the proof of qualifications as voters on the occasion in question render the affidavits wholly insufficient in law, and sustain the сourt’s conclusion that the affidavits were insufficient to sustain the claim that the electors had made proof of their right to vote as nоn-registered electors of the district. State v. Lloyd, 77 Wis. 630, 46 N. W. 898.

The contention that the court erred in treating the allega*337tion in the relation that Kailin voted for the defendant as not denied by the answer cannot he. sustainеd. The answer to this allegation, which states that defendant has no knowledge as to how snch elector voted, is not the equivalent of an allegation that he has not sufficient knowledge or information as to facts alleged to form a belief, and it therefore does not put plaintiff to the proof thereof. State ex rel. Soutter v. Madison, 15 Wis. 30; Sweet v. Davis, 90 Wis. 409, 63 N. W. 1047.

The claim made by defendant, that the affidavits presented to the inspectors by the electors were the only form of affidavit furnished and available to them on this occasion, and that they therefore had a right to rely on them as sufficient proof of their right to vote, cannot ‍​‌‌​‌​‌​‌​‌‌​​‌​​‌‌‌​​​​‌‌​‌‌​​‌‌‌​‌​​​‌​‌​​​‌‌‌‍avail him under the requirements of the statute. Moreover, there is evidence tending to shоw that other forms of affidavits were at hand. But this is immaterial, since it devolves on the elector to present proper affidavits showing thе facts which entitle him to vote. State ex rel. Cothren v. Lean, 9 Wis. 279, 284; State ex rel. Doerflinger v. Hilmantel, 21 Wis. 566; State ex rel. Wood v. Baker, 38 Wis. 71. Sec. 23, Stats. (1898), provides for registration of voters, and enacts that “no vote shall be received at any general election in any ward or election district within this section if the name of the person offering to vote be not on said registry аs completed,” except as therein otherwise provided. Sec. 24 malms these provisions applicable to annual municiрal elections in the specified cities, villages, and towns, unless otherwise declared by ordinance or resolution as therein provided. Any elector whose name is not on the registry may show by affidavit in the manner prescribed by sec. 61, Stats. (1898), that he is a qualified voter of the district at the time he offers his ballot. There is nothing in this regulation which deprives the elector of the right to vote at the time of the electiоn. It is recognized as proper regula*338tion by tbe decisions of tbis court, and is so declared in State ex rel. Wood v. Baker, supra:

“Tbe voter may assert bis right, if be will, by proof tbat be bas it; may vote, if be will, by reasonable compliаnce with tbe law. His right is unimpaired; ‍​‌‌​‌​‌​‌​‌‌​​‌​​‌‌‌​​​​‌‌​‌‌​​‌‌‌​‌​​​‌​‌​​​‌‌‌‍and if be be disfranchised it is not by force of tbe statute, but by bis own voluntary refusal of proof that be is enfranchised by tbе constitution.”

These statutory requirements have been considered by tbis court, and it bas been held tbat they are not unreasonable and are consistent with tbe present right to vote as secured by tbe constitution.

Tbe argument is made that tbe statute is merely directory in requiring an elеctor to make proof in tbe manner therein prescribed tbat he is a qualified voter, and tbat, since Mr. Townsley and Mr. Kailin were in fact electors and residents of tbis district, their votes should not be rejected after having been received by the inspectors, although they failed to make proper proof of their qualifications. • Tbe language of tbe statute is in clear and positive terms to tbe effect tbat no vote shall be received if the name of tbe person offering to vote is not on tbe registry, unless be furnishes tbe proof required by tbе statute showing bis right to vote. Tbe terms of the statute clearly manifest a legislative ‍​‌‌​‌​‌​‌​‌‌​​‌​​‌‌‌​​​​‌‌​‌‌​​‌‌‌​‌​​​‌​‌​​​‌‌‌‍intent tbat votes of persons offering their ballots shall not be received unless they establish their right to vote by being on tbe registry, or, if not registered, then by making proof before tbe inspectors of elеction as required by tbe statute. Tbe object of the statute is to prevent fraudulent voting by persons who assume tbe right when in fact they are not entitled it. We discover no good reason for departing from tbe decision of tbis court of an early clay wherein it was held tbat under tbe statute enacted for tbe protection of tbe elective franchise, declaring in imperative terms tbat tbe ballots of unregistered electors should not be received unless they made proof of their *339right to vote, in conformity with the statute, the inspectors werе deprived of all jurisdiction to receive them. State ex rel. Doerflinger v. Hilmantel, 21 Wis. 566. This conclusion was expressly adhered to in State ex rel. Bancroft v. Stumpf, 23 Wis. 630, and in the Baker Case. We are persuaded that ‘the statute before us in no way renders compliancе with the law impossible or impracticable, and that it imperatively imposes a duty on the unregistered elector to show his right to vote in thе manner prescribed by the statute ‍​‌‌​‌​‌​‌​‌‌​​‌​​‌‌‌​​​​‌‌​‌‌​​‌‌‌​‌​​​‌​‌​​​‌‌‌‍before his vote can legally be received by the inspectors of election. The trial court properly held that the votes of the persons specified in the findings of fact must be rejected and correctly awarded judgment of ouster against the defendant.

By the Gourt. — Judgment affirmed.