Opinion
May 5, 1955 —
June 1, 1955.
APPEAL from an order of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Affirmed.
For the appellant there were briefs by Wickert Fuhrman of Milwaukee, and oral argument by Harold H. Fuhrman.
For the respondent there was a brief and oral argument by Walter H. Bender of Milwaukee.
This is a special proceeding under the provisions of secs. 12.22 to 12.24, Stats., inclusive, to declare that the election of the defendant to the office of chairman of the board of supervisors of the town of Granville was void and that said defendant be ousted from said office.
The complaint alleged that the relator is and at all the times mentioned in the complaint was, an elector in the town of Granville and as such was entitled to vote for chairman of the board of supervisors of said town at the election held to fill said office on the 6th day of April, 1954; that the relator had filed a verified petition with one of the county judges of Milwaukee county setting forth alleged violations by the defendant of the provisions of sec. 12.17, Stats.; that said county judge made and entered an order reciting that it appeared that sufficient evidence was obtainable to show that a proceeding under ch. 12, Stats., may be successfully maintained, granting leave to the relator to bring such a proceeding, and appointing Walter H. Bender special counsel to conduct such proceedings in behalf of the state of Wisconsin. The complaint further alleged that the defendant and one Sells were the candidates for said office at the election to be held on April 6, 1954; that as part of the campaign preceding said election the defendant issued and distributed to the electors of said town through the United States mails approximately 2,500 copies of an article, a copy of which was attached to the complaint. Paragraph numbered 5 of said complaint is set out verbatim as follows:
"5. Said article contained false and misleading statements of fact, among which were the following:
"(1) (a) As appears from said Exhibit A, the defendant made the following statement in said article:
"`However in the event you do not wish to accept at face value the sworn statements of Mrs. Sells regarding the failure of Mr. Sells to support his wife and children, I invite your attention to the alimony card on file in the office of the clerk of the circuit court under case No. 238-746. This card shows an arrearage in alimony and support money for his minor children on the following dates as follows:
"November 30, 1953 ......... $2,000 "December 22, 1953 ......... $2,100 "January 2, 1954 ........... $2,100" "`All these statements are taken directly from the public records of the Milwaukee county circuit court and may be examined by anyone. Now, I ask you, do you want a man who does not support his own little children to be the steward for the responsibilities of the town government? Mr. Sells has the audacity of holding himself forward to the people of our town as being a proper person to discharge public responsibilities. Do you not agree that this man should first put his own house in order before he attempts to conduct your town affairs? If a person cannot meet his own personal responsibilities, how can he hope to adequately carry public responsibilities?'(b) This portion of said article was untrue in the following respects:
"Neither the alimony card in question nor the public records of the Milwaukee county circuit court showed that Evan J. Sells was in arrears in alimony and support money for his minor children on November 20, 1953, in the sum of $2,000, or on December 22, 1953, in the sum of $2,100, or on January 2, 1954, in the sum of $2,100.
"Evan J. Sells was not in fact in arrears on said dates, or any of them, in alimony and support money for his minor children in said sums or any of them, or in any substantial sum whatsoever.
"(2) (a) As appears from said Exhibit A, the defendant also made the following statement in said article:
"` The real reason for Mr. Sells' candidacy. You have noticed in his public statements that Mr. Sells has advocated the consolidation of functions by the municipalities of Milwaukee county. As you know, this idea is the brain child of Walter J. Mattison, the city attorney of the city of Milwaukee. This proposal is designed to be the first phase of a gigantic program for the annexation of the town of Granville to the city of Milwaukee. It is interesting to note that the attorney for Mr. Sells is James R. Mattison, the son of the city attorney of the city of Milwaukee. Have you ever heard of a more clever fifth-column movement within the town of Granville? In the event Mr. Sells is elected as town chairman you can expect the town of Granville to be surrendered without a fight to the city of Milwaukee (with its known exorbitant tax policy). Walter J. Mattison, as city attorney for the city of Milwaukee, will likely "negotiate, " with his son, James R. Mattison, the attorney for Mr. Sells, and the town of Granville will be "sold down the river." This interesting alliance has never been brought to the attention of the people of the town of Granville.'
"(b) This portion of said article was untrue in the following respects:
The promotion of a plan for consolidation of functions by municipalities in Milwaukee county was not the `real reason' or any reason for the aforesaid candidacy of Evan J. Sells.
"The proposal of such consolidation of municipal functions was not designed by said Evan J. Sells to be the first phase of a gigantic program, or any program, for the annexation of the town of Granville to Milwaukee. Evan J. Sells never participated in any plan of annexation of said township to the city of Milwaukee, but always opposed any such annexation.
"Evan J. Sells was never part of any `fifth-column movement in the town of Granville' or any other movement in connection with annexation or any other similar plan or policy. No such movement in fact exists."
The complaint further alleged that the statements designated as false in paragraph 5 were known by the defendant to be false when the article was prepared and circulated; that said statements naturally tended to and did induce many of the electors of said town to vote against Sells at said election and were intended by the defendant to have said effect. As a result the defendant was in form elected to said office, which he assumed, and that the publication of each of the statements designated as false in paragraph 5 constituted and was a serious and substantial violation of sec. 12.17, Stats.
A demurrer was interposed to the complaint on the ground that the same does not state facts sufficient to constitute a cause of action and that the relief sought by the plaintiff would infringe certain constitutional rights of the defendant. An order was entered on December 20, 1954, overruling the demurrer, and the defendant appealed.
Sec. 12.17, Stats., reads as follows:
"No person, firm, or corporation shall knowingly make or publish, or cause to be made or published, any false statement in relation to any candidate, which statement is intended or tends to affect any voting at any primary or election."
The defendant contends that the complaint is fatally defective in that no copy of the alimony card referred to was attached to the complaint and in that it failed to plead the contents of Mr. Sells' letter to which the defendant's article was a reply. We can find no merit in this contention. The charges are based upon what was stated and published by the defendant in his article. The pleading of the other documents is defensive matter and did not have to be incorporated in the complaint.
The defendant next contends that the complaint is fatally defective for the reason that the denial of the alimony charges was in effect a negative pregnant. However, the complaint went further than to deny the statements in the article only as to the exact dates and amounts that appeared therein, In addition, the complaint alleged that Sells was not in fact in arrears in any substantial sum. The complaint sufficiently alleges that it was a false statement.
The defendant also contends that the gravamen of the statement with reference to the alimony card is the same as the statement of Mrs. Sells in her affidavit, which was not denied. This is not a valid objection to the complaint. If one candidate made several false statements about his opponent it would only be necessary to plead and prove the falsity of one of them, together with the other essential elements embraced within the statute, to succeed in the action.
It is next contended by the defendant that the statements complained of are not misstatements of fact but merely opinions, deductions, fears, or suspicions, and a prediction of doom. The defendant relies in particular upon certain language appearing in the case of State ex rel. Hampel v. Mitten, 227 Wis. 598, 278 N.W. 431. This court did state therein that where the violations of ch. 12, Stats., are either technical, insubstantial, or trivial, they will not support a judgment of ouster, but that a deliberate, wilful, intentional, and substantial violation of the act carries with it the penalty of ouster. In the Hampel Case it was determined that the statements complained of were not sufficiently pleaded as statements of fact, and in that case the order sustaining the demurrer to the complaint was affirmed.
The cases are factually different and the pleadings are materially different. The trial court held that the statements in question, if untrue, constitute a substantial violation of the statutes, and we agree therewith. Under the established rules of this court, in reviewing the complaint before us, which is challenged by demurrer, we must hold that the complaint alleges facts sufficient to constitute a cause of action, even though some of the allegations were made upon information and belief.
The constitutional objections to the statute raised herein have been considered and determined by this court in prior cases, particularly in State ex rel. La Follette v. Kohler, 200 Wis. 518, 228 N.W. 895. A thorough statement of the constitutional objections to ch. 12, Stats., and a discussion of the many cases that have determined the objections to be without merit would unduly lengthen this opinion.
The plaintiff attempts to raise for the first time in this court the contention that a demurrer to a complaint in this type of special proceeding is not a permissible pleading. Although several ouster cases under the provisions of ch. 12, Stats., have been before this court on demurrer it does not appear that the issue has been raised or determined. However, this court has repeatedly refused to allow issues to be raised on appeal that were not raised in the trial court, and under our established practice we refrain now from passing thereon.
By the Court. — Order affirmed.