State ex rel. Kustermann v. Board of State Canvassers

The following opinion was filed February 21, 1911:

KeewiN, J.

Many interesting questions are raised upon this appeal and exhaustively argued by counsel on both sides. On the part of the relator it is insisted that upon the face of the returns he was entitled to the certificate of election, and that the board of state canvassers, without authority of law and contrary to the returns, gave the certificate of election to Thomas E. Konop, Democratic candidate. It is therefore claimed that this court should award a peremptory writ of mandamus compelling the board to re-assemble and give the certificate to relator, and that under see. 3452, Stats. (1898), this court should inquire into the facts of the election irrespective of the election returns and determine who was in fact entitled to the certificate of election by the greater number of legal votes cast.

On the part of the respondents it is insisted that, the board having performed its duties, issued the certificate of election to Mr. Konop, and adjourned sine die, it became functus of-ficio and cannot be compelled by mandamus or otherwise to reconvene and issue a certificate to relator; and further that the returns show that Mr. Konop was elected and therefore the respondents were right in issuing the certificate to Mr. Konop.

Whether the board after it had performed its duty, issued a certificate, and adjourned sine die can be compelled to reconvene and issue a certificate to another is a delicate question and one upon which there is conflict of authority. It is claimed that State ex rel. Rinder v. Goff, 129 Wis. 668, 109 N. W. 628, is controlling here, and that upon the doctrine laid down there no relief can be had by mandamus to compel the issuance of a certificate in any case after the board has performed its duty and adjourned. But this court did not go to that extent in the Binder Case. However, we do not regard it necessary to consider or decide whether mandamus will lie in any case, after the board of state canvassers has determined the result, issued the certificate of election, and adjourned sine die, to compel the issuance of a certificate to another candidate under existing laws.

A very able argument is made by counsel for relator based upon the proposition asserted by them that upon the face of the returns it was the duty of the board of state canvassers to determine that Mr. Kustermann received a plurality of all the votes cast, and that he was entitled to the certificate; therefore the certificate should have been issued to him. The return of the respondents to the writ is quite fully set forth in the statement of facts and need not be repeated here. Erom rsnch return it seems clear to us that the respondents were warranted in issuing the certificate to Mr. Konop, and that the returns of the county canvassers justified such action. The trouble seems to have arisen out of the return from Oconto county. The board of county canvassers of that •county made and filed with the county clerk their statement of the result of the election in that county for representative in Congress, by which they certified that the

'“foregoing and within tabular statement is correct and true, ■as compiled from the original returns made to the county clerk of said county, and as compared therewith by us, and that from such returns it appears that at the general election held in the several towns, wards, villages, and election districts of said county, on the first Tuesday succeeding the first Monday of November, A. D. 1910, being the. eighth day of said month,

“The whole number of votes given for representative in •Congress for the Ninth Congressional district was thirty-three hundred eighty-eight (3,388), of which number Thomas E. Konop received fourteen hundred fifty (1,450) votes;

“Alexander McEathron received thirty-nine (39) votes;

"Gustave Kustermann.received seventeen hundred twenty-five (1,725) votes;

“Thomas J. Oliver received one hundred seventy-four {174) votes.”

The certificate is in conformity with statute and in the usual form, except as to the tabular exhibit respecting the voting precinct in Oconto county called “Pensaukee 1st precinct.” In the vertical column under the name “Thos. E. Konop” and opposite “Pensaukee, 1st precinct” are the figures “16,” and just to the right of these are the figures “22,” followed by a brace to the right of which appear the words “Shown on tally sheet. Inspectors’statement shows 16.” The addition of the •column immediately under the last precinct vote is given “1,444.” Under the units in the figures 1,444 is the figure 6, and immediately under an addition showing “1,450,” so. that tbe column as finally added gives Thomas F. Konop 1,450 votes in Oconto county. The controversy is over the six votes — whether the respondents were warranted in counting them for Mr. Konop. In other words, whether the state board should have determined that Konop received 1,450-votes in Oconto county or 1,444. Now if we take the second footing in the Konop column of the tabular exhibit and the certificate of the whole number of votes as heretofore quoted,, both the tabular exhibit and the certificate are in harmony, each giving 1,450 votes, while if we take the first footing and, the certificate they do not agree. But it is said by counsel for relator that the respondents were not authorized in crediting the six votes to Konop, but were bound by the number ra-the column of the tabular exhibit opposite each voting precinct. True, the tabular exhibit is a part of the return and is entitled to weight. But the statement of the number of' votes in the body of the certified statement is at least as strong-evidence as the tabular exhibit. And with the notation on the tabular exhibit and the second footing making the tabular-exhibit correspond with the statement in the certificate, there seems to be no doubt that the county canvassers determined, and rightly, that Mr. Konop received 1,450 votes in Oconto-county, and that upon the face of the returns the respondents-were justified in so finding. It is quite obvious upon the-face of the return of the county canvassers that they determined that the figures in the Konop column opposite the words “Pensaukee, 1st precinct,” should be 22, not 16, and so-, made the corrections indicated on the face of the tabular exhibit. Nor can it be said that the county canvassers improperly made up the tabular exhibit, but on the contrary it must, be presumed that they performed their duty.

Sec. 82, Stats. (1898), respecting the county canvassers,, provides:

“On the assembling of the board they shall open and examine the returns, . . . and if, on examination of any returns-received, they shall he found so informal or incomplete that the hoard cannot intelligently canvass them, they shall dispatch a messenger with such returns to the inspectors who made them with a written specification of the informalities or defects, and command them to forthwith complete the same in the manner required by law and deliver them to said messenger, which such inspectors shall do. . . . For such purposes the board may 'adjourn as may he necessary, not more than four days at one time nor more than eight days in all.”

Under this statute the county canvassers are authorized to require the returns from the inspectors, if found informal or incomplete, to he completed in the manner provided by law. The same or similar authority is conferred upon the state canvassers. Sec. 94, Stats. (1898), as amended by ch. 488, Laws of 1909. ,What proceedings were had before the county canvassers we only know from the returns. It may well be that an incomplete or informal return was furnished by the inspectors and afterwards corrected returns furnished in accordance with the statute and the correction made in the manner indicated after the return of the county canvassers had been prepared and before signing, or the county canvassers may have committed an error in copying in the figure 16 in the column instead of 22, as shown by the inspectors’ returns, and on discovering the error made the correction by adding up the column and adding six so as to make the correct footing.

The original returns of the county canvassers are before us, and the figures including the figure 6 and the footings appear to be in the same handwriting and bear evidence that the additions were made by the board so as to give the correct number of votes to Mr. Konop. Another fact corroborative of this proposition is the certified copy of the inspectors’ statement from the town clerk’s office of the town of Pen-saukee, Oconto county, made a part of the return to the writ and showing the result in the first precinct, town of Pensau-kee, to be 22 votes for Mr. Konop. Tbis statement is required to be filed and preserved with tbe town clerk by sec. 18, Stats. (1898), as amended by sec. 1, cb. 148, Laws of 1901. But however tbe irregularities on tbe tabular exhibit occurred is not very material, because such exhibit was made by tbe county canvassers, corresponds with tbe vote in tbe certificate, and must be presumed to be correct, since nothing appears in tbe returns to tbe contrary. Tbe memorandum on tbe tabular exhibit as to tbe tally sheet, if evidence of anything, is not evidence that tbe county board of canvassers followed if. On tbe contrary it must be presumed that they determined tbe correct vote in tbe manner provided by law. Examination of tbe tally sheet may have aroused inquiry and investigation along tbe lines provided by law. It is true that tbe board of state canvassers, tbe respondents, were obliged to canvass from tbe regular returns before them under tbe power conferred by tbe statutes and could not go behind tbe returns, and in their return to tbe writ of mandamus they alleged that they did not go behind tbe returns of tbe county canvassers, and considered nothing else in arriving at their determination but tbe regular returns of tbe county canvassers. A great deal of space is occupied by counsel for relator in their brief with argument to the effect that tbe county canvassers or respondents could not consider tbe tally sheet, but there is no evidence that they determined tbe result of tbe election from tbe tally sheet. On tbe contrary, upon tbe facts set up in tbe return and admitted by tbe demurrer it appears that they did not, so it is unnecessary to determine whether tbe tally sheet could be considered or not.

Aside from tbe question that tbe respondents as a canvassing board has performed its duty, determined that Mr. Konop was elected, issued a certificate of election to him, and adjourned sine die, we think tbe record fully supports tbe action of tbe respondents, and that the relator has made no case which would warrant tbis court in awarding tbe writ of man*-damus. State ex rel. Rinder v. Goff, 129 Wis. 668, 109 N. W. 628; State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296; La Pointe v. O’Malley, 46 Wis. 35, 50 N. W. 521; Merrill, Mandamus, § 142.

See. 3452, Stats. (1898), is also relied upon by counsel for relator. It is alleged in the petition, upon information and belief, that divers omissions were made by tbe inspectors throughout the district in counting and returning votes cast for relator so that his vote as canvassed and returned was smaller than he in fact received, and that such alleged errors which do not appear on the face of the returns may be reviewed in this action under sec. 3452, Stats. (1898). We shall not attempt to render an opinion upon the scope of this section, nor decide whether it applies to any case where the board of canvassers had issued the certificate of election and adjourned as in the instant case. It seems by its terms to cover cases only where it is deemed necessary to promote the ends of justice to inquire into the facts of the election, “irrespective of the election returns,” and does not appear to reach the present case. Even conceding that the statute is valid and may be applied to the present case we do not think that it would “promote the ends of justice if we were now to” inquire into the facts of the election irrespective of the returns. Such an inquiry would take weeks and probably months. It appears that Mr. Eonop’s certificate is already filed and his name on the list of the next House; long before this court could reach any result the term of office will have begun; certainly any decree of this court rendered after March 4th next cannot oust Mr. Eonop from office; the final determination of the right to office rests with the House of Representatives itself, and any inquiry by the court after the term of office has commenced in a proceeding to which Mr. Eonop is not a party would seem to be futile to the last degree.

On the facts alleged in the return we are unable to say that the state canvassing board committed error or that it is clear that they should have awarded the certificate to Mr. Kusber-mann, hence the demurrer to the return must be overruled. There being no suggestion that any material issue of fact can he taken on the return the writ will he denied.

By the Cov/rb. — The demurrer is overruled and the writ is denied.

The following opinion was filed February 23, 1911:

Timlin, J.

I have also arrived at the conclusion that the writ should be denied and desire to make a record of the reasons which led me to that conclusion.

1. A statute of the United States provides:

“Before the first meeting of each Congress the clerk of the next preceding House of Representatives shall make a roll of the Representatives-elect, and place thereon the names of those persons, and of such persons only, whose credentials show that they were regularly elected in accordance with the laws of their states respectively, or the laws of the United States.” 2 Fed. Stats. Ann. 215.

The return to the alternative writ shows that a certificate of election was issued by the state canvassing board to Thomas E. Konop on December 8, 1910, and filed with the secretary of state, whereupon the latter delivered to said Konop a certificate of his election and also forwarded a certificate to the House of Representatives at Washington as required by law, and further:

“That said Thomas E. Konop, to whom said certificate has been issued, is now in possession of the office to which he was so declared to be elected, and that his name now appears on the roll of the House of Representatives as a member-elect from the Ninth Congressional district of Wisconsin, of the Sixty-second Congress of the United States of America.”

It also appeared in said return that the state canvassing board, after its canvass of said election and on December 8, 1910, adjourned without day. The certificate delivered to Konop and filed in the House of Representatives bears date December 9, 1910. All this occurred prior to the service of the alternative writ, and all this is admitted by demurrer to the return to that writ. So that even on the assumption that the board of county canvassers of Oconto county erroneously arrived at its determination from a consideration of the poll list together with the return from the election inspectors, and that the board of state canvassers accepted the return of the board of county canvassers of Oconto county so based, the writ must be denied under the authority of State ex rel. Rinder v. Goff, 129 Wis. 668, 109 N. W. 628, if that case is not to be overruled. Quoting from that case:

“We simply bold that, where a canvass has been made and a •certificate issued, the certificate bolder cannot be deprived of bis prima facie right to the office by any subsequent action of the canvassing board. His right must be contested and set aside in a proper action or proceeding brought for the purpose, and until this has been done mandamus will lie to place him in possession of the property and privileges of the office to which be has prima facie title.”

Again:

“This court has held that one who has been declared by the proper canvassing board to have been elected to an office, and has received the proper certificate of election and duly qualified, is entitled to the possession of the office and its property and emoluments as against all the world except a de facto officer already in possession under color of authority, and that this right persists until a different result is reached in a quo warranto action or other proper proceeding to contest the right of the certificate bolder. State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296; State ex rel. McCoale v. Kersten, 118 Wis. 287, 95 N. W. 120.”

The constitution of the United States makes the House of Representatives “judge of the elections, returns, and qualifications of its own members.” And this excludes any jurisdiction on the part of this court to entertain or determine any question relating to the election, return, or qualification of members of Congress after tbe matter bas reached the stage above indicated. O'Hara v. Powell, 80 N. C. 103, and cases infra.

2. A motion to qnash the alternative writ is also before the court. It is contended that the mandamus in the instant case may be supported under sec. 3452, Stats. (1898), relating to mandamus. That contains the following:

“In any proceedings by mandamus against any board of canvassers in the supreme court to compel the execution and delivery of a certificate of election to any person claiming to have been elected to the office of state senator or member of the assembly, or member of the house of representatives of the congress of the United States, or presidential elector, by the qualified electors of this state, the court may, if it is deemed necessary to promote the ends of justice, inquire into the facts of such election, irrespective of the election returns, and determine who was in fact entitled to the certificate of election to such office by the greater number of legal votes cast, and the certificate issued in pursuance of such determination shall be taken as the true and only lawful certificate of election to such office, and any other certificate of election to the same office issued by any board of canvassers shall be null and void.”

This is clearly an election contest statute and cannot be made to do service in a political exigency as anything less, than this. This is apparent from the provision that it is only the certificate issued in pursuance of “such determination” that shall be taken as the true and only lawful certificate of election to such office. What is “such determination?” The only determination theretofore mentioned in this statute is as follows:

“The court may . . . inquire into the facts of such election, irrespective of the election returns, and determine who was in fact entitled to the certificate of election to such office by the greater number of legal votes cast.”

There is-nothing in this statute giving such efficacy to any certificate of election except that issued in pursuance of such determination. This statute is therefore unconstitutional as regards representatives in'Congress under the clause of the federal constitution first quoted, and such is the consensus of judicial opinion everywhere with reference to statutes of this kind authorizing a contest and a trial of the election result on the merits in all cases where the constitution makes the legislative body the judge of the election, returns, and qualifications of its members. Att’y Gen. ex rel. Beers v. Board of Canvassers, 155 Mich. 44, 118 N. W. 584; Vance v. Board of Canvassers, 95 Mich. 462, 54 N. W. 1048; Pound v. Board of Canvassers, 120 Mich. 181, 19 N. W. 114; O'Hara v. Powell, 80 N. C. 103; In re Election of McNeill, 111 Pa. St. 235; Dalton v. State ex rel. Richardson, 43 Ohio St. 652, 3 N. E. 685; Ellison v. Barnes, 23 Utah, 183, 63 Pac. 899.

State ex rel. McDill v. Board of Canvassers, 36 Wis. 498, also recognizes this. Quoting from that case:

“We cannot determine the right to the office, but only the duty of the board of state canvassers in respect to the canvass. The power to determine the right is, by the constitution of the United States, vested exclusively in the House of Representatives. Art. I, sec. 5." Hence we cannot go behind the returns and investigate and correct frauds and mistakes, and adjudge which of the candidates was elected, but can only determine whether the board of state canvassers ought to include in its canvass and statement of the votes cast for representative in Congress those returns from Wood county.”

There was no certificate of election issued in the McDill Case. Speaking of the board of canvassers the court said:

“They have, however, pending the present proceedings, voluntarily abstained from making the certificate required by law, of their determination of the result of such election, thus relieving the relator and the court from what might have caused embarrassment, and have gracefully submitted the whole matter to the adjudication of the court.”

If it be said that under sec. 3452, Stats. (1898), this court could exercise a fraction of the power there attempted to be conferred upon the court, the answer is that it is only to a certificate of election issued pursuant to a judgment of this court, after a contest on the merits, that this statute gives the effect of superseding a certificate of election theretofore issued. In this paragraph, speaking of the statute, I have used the word “unconstitutional.” Perhaps in deference to the learned professors, journalists, and others who maintain that courts have usurped the power of declaring laws unconstitutional, I should have said that the provisions of the statute are inconsistent with those of the constitution, and I find it impossible to conform to both, hence follow the constitution as paramount.

3. The certificate of election having been issued and presented to the House of Representatives, the matter has passed into the control of that legislative body and any decision made by this court in this proceeding will have no binding force or efficacy. Neither Congress nor any one else is required to regard it or give it weight. The alleged duty of this court to make such proclamation or fulmination is therefore not a judicial duty. Gordon v. U. S. 117 U. S. 697. The decision of this court would be a vain and idle ceremony. O’Hara v. Powell, supra; In re Election of McNeill, supra; Ellison v. Barnes, supra; Dalton v. State ex rel. Eichardson, supra. Nothing could be more insidiously damaging to the judicial department of government than a recognition of its power or duty to make proclamations to which no one is obliged to give heed or respect.

4. On the merits of the application there is no ground for the issue of the writ. It is uncontroverted that the board of 'state canvassers correctly canvassed the returns from all the counties constituting the Congressional district except Oconto county. Respecting this county it appears that the statement required to be made by the county canvassers and returned to the state canvassing board showed that Hr. Konop had received 1,450 votes in Oconto county; but the statute further provided that the county canvassers “shall append to each such statement as part thereof a succinct tabular exhibit, in figures, of the votes cast at each election poll in the county for each office and person entering into the canvass embraced in such statement, whether canvassed or not, and if any votes were rejected shall specify the reasons therefor.” Sec. 83, Stats. (1898).

This tabular statement showed that there were cast for relator in the first precinct of Pensaukee 56 votes and for his opponent, Konop, showed 16 votes, with the following annotation opposite the 16 votes: “22 — Shown on the tally sheet. Inspectors’ statement shows 16.” The difference between 16 and 22 was then added at the foot of the column to 1,444, making 1,450. What the board of county canvassers of Oconto county had before it we do not know. Tally sheets are in some cases expressly authorized by statute. Oh. 459, Laws of 1901. In others by implication. Secs. 94i and 94/, Stats. (1898) ; Election Laws of 1910, p. 91. Whether there was a voting machine in the precinct in question we do not know. The board of state canvassers had before it, then, a certified statement from the county board of canvassers showing that Mr. Konop received 1,450 votes, and the county canvassers had appended to this statement and as part thereof a tabular exhibit in figures of the votes cast at each election poll showing 16 votes for Konop, corrected by the annotation aforesaid of 22, which brought his total vote of Oconto up to 1,450, corresponding with the certified statement. The certified statement is in nowise impeached unless it be by this tabular exhibit and the correction aforesaid, and the tabular exhibit is in nowise impeached except as it may be impeached by the memorandum aforesaid, indorsed thereon, relating to the correction. There is no showing that Mr. Konop did not get these 22 votes in the first precinct of Pensaukee. But it is contended that the memorandum of correction indicates that the board of county canvassers made the correction from the tally sheets returned to them hy the inspectors and that these tally sheets are not official documents or required to he returned. They were, however, treated as competent to he considered for the purpose of correcting the return in State ex rel. Rinder v. Goff, 129 Wis. 668, 109 N. W. 628. Another statute (sec. 82, Stats. 1898) providing for the county canvass authorized the county canvassers, if the return from the election inspectors of the various precincts shall be found so informal or incomplete that the hoard of county canvassers cannot intelligently canvass them, to dispatch a messenger with such returns to the inspectors with a written specification of the informalities or defects, and command the inspectors to forthwith complete the same in the manner required hy law and deliver them to such messenger.

We have no proof that the county canvassers did this or omitted it, hut we have in the return a certified copy of the duplicate statement of the canvass by the inspectors required hy sec. 78, Stats. (1898)', to be delivered to the town clerk, and this shows 22 .votes for Mr. Konop. What the duplicate original which was delivered to the county canvassers shows we are not informed, except as may be indicated by the memorandum on the tabular exhibit above quoted. This memorandum is an extra-official statement not required by law to be made, and is in my opinion entirely insufficient to impeach the canvass of the state board or overthrow the certificate of election already issued.