State ex rel. Nelson v. Emerson

118 N.W. 836, 137 Wis. 292, 1908 Wisc. LEXIS 311

Opinion

TiMxirr, T.

By settled rules obtaining in this state, the court, proceeding upon writ of certiorari, in giving final judgment can only affirm or reverse the judgment or determination reviewed under the writ. Starkweather v. Sawyer, 63 Wis. 297, 23 N. W. 566; State ex rel. Heller v. Lawler, 103 Wis. 460, 79 N. W. 777. The writ is therefore very ineffective in the instant case. There is no means of proving whether the rejected ballots were or were not furnished by the authorities, because that fact is not shown nor required to be shown by any election record, and the court on certio-rari is confined to the record and debarred from extrinsic proof. To reverse the determination of the board of election inspectors would be to leave the result of the election uncan-vassed and undetermined, while the result as originally certified by the inspectors to the village clerk would remain in his office unaltered. This is a condition not contemplated by statute. State ex rel. Winchell v. Circuit Court, 116 Wis. 253, 93 N. W. 16; 4 Decen. Dig. tit. Oektioeabi, and cases in sec. 8. The court is furthermore of the opinion that the acts of the inspectors in rejecting ballots as defective, as well as their subsequent canvass of the result, are both ministerial rather than quasir judicial acts, and therefore, because the writ of certiorari cannot be used to review ministerial acts, the writ should have been quashed. State ex rel. Narveson v. McIntosh, 95 Minn. 243, 103 N. W. 1017; State ex rel. Hadfield v. Grace, 83 Wis. 295, 53 N. W. 444; 4 Decen. Dig. tit. Certiorari, § 24, and cases.

By the Court. — Judgment reversed, and the cause remanded with directions to quash the writ.