State v. Trask | Cases | Westlaw

The court rejected the votes of Mr. Townsley and Mr. Kailin, which the inspectors of election had received and counted in favor of the defendant. There is no dispute that they were qualified electors of such ward on election day, and that they were not enrolled 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 declared their intention to become such citizens), that they were of lawful age, and had resided in the state one year and in the election district for 10 days. Each one also offered an alleged corroborating freeholder's affidavit. There is some dispute as to whether these affidavits 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 set 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 district where he offers to vote, and has not since become disqualified by removal therefrom or otherwise; or, if removed therefrom, that he was then a legal voter of this district, or has otherwise become a qualified voter thereof under the provisions of section 61, St. 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 district when they presented their ballots to the inspectors. The affidavits presented contain 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 court's conclusion that the affidavits were insufficient to sustain the claim that the electors had made proof of their right to vote as nonregistered electors of the district. State v. Lloyd, 77 Wis. 630, 46 N. W. 898.

The contention that the court erred in treating the allegation in the relation that Kailin voted for the defendant as not denied by the answer cannot be sustained. The answer to this allegation, which states that defendant has no knowledge as to how such 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. Common Council of 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 show that other forms of affidavits were at hand. But this is immaterial, since it devolves on the elector to present proper affidavits showing the facts which entitle him to vote. State ex rel. Cothren v. Lean, 9 Wis. 284; State ex rel. Doerflinger v. Hilmantel, 21 Wis. 566; State ex rel. Wood v. Baker, 38 Wis. 71. Section 23, St. 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 as completed,” except as therein otherwise provided. Section 24 makes these provisions applicable to annual municipal 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 *825 may show by affidavit in the manner prescribed by section 61, St. 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 election. It is recognized as proper regulation by the decisions of this court, and is so declared in State ex rel. Wood v. Baker, supra: “The voter may assert his right, if he will, by proof that he has it; may vote, if he will, by reasonable compliance with the law. His right is unimpaired; and if he be disfranchised it is not by force of the statute, but by his own voluntary refusal of proof that he is enfranchised by the Constitution.” These statutory requirements have been considered by this court, and it has been held that they are not unreasonable and are consistent with the present right to vote as secured by the Constitution.

The argument is made that the statute is merely directory in requiring an elector to make proof in the manner therein prescribed that he is a qualified voter, and that, since Mr. Townsley and Mr. Kailin were in fact electors and residents of this district, their votes should not be rejected after having been received by the inspectors, although they failed to make proper proof of their qualifications. The language of the statute is in clear and positive terms to the effect that no vote shall be received if the name of the person offering to vote is not on the registry, unless he furnishes the proof required by the statute showing his right to vote. The terms of the statute clearly manifest a legislative intent that votes of persons offering their ballots shall not be received, unless they establish their right to vote by being on the registry, or, if not registered, then by making proof before the inspectors of election as required by the statute. The object of the statute is to prevent fraudulent voting by persons who assume the right, when, in fact, they are not entitled to it. We discover no good reason for departing from the decision of this court of an early day wherein it was held that under the statute enacted for the protection of the elective franchise, and declaring in imperative terms that the ballots of unregistered electors should not be received unless they made proof of their right to vote, in conformity with the statute, the inspectors were deprived of all jurisdiction to receive them. State ex rel. Doerflinger v. Hilmantel, supra. 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 compliance with the law impossible or impracticable, and that it imperatively imposes a duty on the unregistered elector to show his right to vote in the 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.

Judgment affirmed.