(dissenting). I do not agree with this decision and I want to state why.
It is not vastly important whether Mr. Plehn or Mr. Wi-dule was elected county clerk so far as the performance of the duties of the office are concerned; probably one could perform them as well as the other; but it is vastly important that the man actually elected should be seated.
One of the basic principles on which our government is founded is the principle that the qualified candidate who receives the greatest number of votes is the only rightful officer, and whenever it appears that a minority candidate has been seated or that a court, when duly invoked, refuses to investigate the question, and leaves a grave doubt as to the actual incumbent’s right to the office, respect for democratic government receives a serious shock. My strong impression is that one of these things has happened here.
*10Let us consider briefly tbe admitted facts: Tbe county board of canvassers determined by tbe original canvass tbat tbe plaintiff received 19,891 votes and tbe defendant 19,918 votes, a difference of only 21 votes. This result was reached by simply compiling and adding together tbe returns from the precinct officers. Application for a recount of a considerable number of precincts pursuant to tbe provisions of sec. 86, Stats. 1913 (sec. 6.66, Stats. 1915), was made by tbe relator and similar applications were made by tbe defendant and by other candidates, and tbe canvassing board started to make tbe recount. Tbe recount was stopped before its completion by tbe judgment of this court December 12, 1914, in the case of State ex rel. Zabel v. Board of Canvassers, 159 Wis. 249, 150 N. W. 554, but the board bad already counted and tabulated tbe votes cast for county clerk in nine of tbe disputed precincts and bad published tbe results of such recount in those precincts as appears by tbe official record of their proceedings. In these nine precincts tbe official recount thus made and finished showed a total of 1,593 votes cast for Widule as against 1,605 shown by tbe original canvass, and 862 votes cast for Mr. Plelm as against 856 shown by tbe original canvass. It appeared, therefore, tbat in these precincts the relator bad made a net gain of 18 votes. This left a difference in favor of Mr. Widule of but 9 votes. It further appears without dispute tbat the official tally sheet' kept by the election officers in tbe fourth precinct of tbe Eighteenth ward shows 19 votes cast for Mr. Plelm, while tbe written statement returned to tbe county clerk states tbat there were but 9; also tbat tbe tally sheet in tbe fifth precinct of tbe same ward showed 20 votes cast for Mr. Plelm, while tbe written statement states that there were 19.
These facts are all undisputed. If, therefore, the recount made by the county canvassers in the nine precincts is better evidence of the actual vote than tbe original county canvass, and if the tally sheets are better evidence than the written *11statements of the precinct officers, it is established prima facie by this evidence that Mr. Pl&hn received two votes more than Mr. Widule, because the former gentleman has gained 11 votes and the latter gentleman has lost 12 votes, making a net gain for Mr. Plehn of 29 votes.
It is said that the recount is not good evidence because it never was completed. I am unable to appreciate the force of this argument. The law providing for the recount is a valid law. It emerged from the TIusting and Zabel cases considerably disfigured but still a valid law. The canvassing board had acted in strict accordance with its provisions in recounting the votes in the nine precincts above referred to. So far as those precincts were concerned its labor was complete and the results recorded. The original ballots had been counted under the eyes of counsel for both contestants and probably of the contestants themselves. There is nothing in the evidence tending to impeach the correctness of the results, and they are official results reached under the provisions of a valid law. True, this court held that the recount must cease at this point because it concluded that the county and state canvasses must be completed within a certain limit of time, but this does not mean that the work already done was invalidated or deprived of its probative force. Why should that work not be given effect? I am unable to see. It seems to me that in ruling otherwise both the trial court and this court have subordinated form to substance, and rejected evidence which our common sense tells us is the very best evidence.
The decision in the TIusting Case and the decision in this case taken together mean, as it seems to me, that in every case of a closely contested election in Milwaukee county sec. 86 of the Statutes becomes a mere husk without the kernel, a beautiful promise, kept to the ear but broken to the hope.
So with regard to the differences between the tally sheets kept by the precinct election officers and the statements of re-*12suits returned by them to tbe county clerk under tbe provisions of secs. 11 and 78 of tbe Statutes of 1913 (secs. 6.58 and 6.59, Stats. 1915).
By tbe provisions of cb. 581, Laws 1913 (now sec. 6.28, Stats. 1915), tbe tally sheets are made official documents to be certified by tbe election officers and returned to tbe county clerk as part of tbeir statement of tbe result under tbe provisions of sec. 78, Stats. 1913 (sec. 6.59, Stats. 1915). -Thus they become evidence, and when fair on tbeir face and not impeached by extrinsic evidence (as is tbe case here) must, it seems to me, be considered more satisfactory evidence of tbe actual vote than tbe written statement afterwards made. It would not be correct to say that they would necessarily control tbe written statement. There might well be evidence on tbe face of tbe tally sheet which would stamp it as unreliable or extrinsic evidence which would have tbe same effect, but there is nothing of that kind here. Tbe tally sheets in question are not impeached in any way; they contain tbe tallies evidently placed upon them carefully and methodically by tbe election inspector or clerk as tbe names of tbe candidates were called off from tbe ballots as they were being counted. It is to be noted that in tbe tally sheets from tbe fourth precinct of tbe Eighteenth ward not only are tbe tallies themselves 19 in number, but tbe sum is carried out in a column to tbe right as 19, while in tbe written statement on a separate sheet tbe number is stated as 9. To my mind it is much more likely that an error was made in transferring tbe totals to tbe statement than in recording tbe votes on tbe tally sheet as they were called off.
What tbe conclusion of tbe trial judge on this question was-seems somewhat uncertain. There is but one finding which touches the' question at all and that is tbe finding that tbe evidence received was “insufficient in fact and incompetent in.law” to impeach tbe return of tbe county canvassers. So far as tbe tally sheets are concerned there can be no doubt of tbeir competency, and in my judgment there is as little doubt *13of tbeir sufficiency. McCrary, Elections (4th ed.) §§ 505, 506; State ex rel. Att’y Gen. v. Donnewirth, 21 Ohio St. 216.
I have not discussed the question as to the admissibility of the ballots themselves. While I entertain grave doubt whether the ruling of the court excluding them was correct, I should not on this ground alone disagree with my brethren, but defer to the conclusion of the trial judge, who evidently thought that they had lost their probative value because it appeared that they had not been carefully guarded and might easily have been tampered with. I base my conclusions on the uncontradicted evidence in the'case, which in my judgment shows a plurality of two votes for Mr. Plehn. If this-prima facie showing could be met and overcome in any way, it was the business of the defendant to present the evidence: which would accomplish that result, but this he did not do.
Esohweiler, J., took no part.A motion for a rehearing was denied, with $25 costs, on October 3, 1916.