Currie and Steinle, JJ., Dissented.
The opinion of the court was delivered by: Fairchild
Petition for writ of mandamus directing the board of election commissioners to proceed under sec. 6.66, Stats., with a recount of the ballots cast for the position of alderman in precincts of the 18th ward of the city of Milwaukee. The petition was by Robert E. McIntyre, a candidate, his opponent receiving 58 more votes than he did. The petition was denied, and the petitioner appeals.
The following facts were stipulated: That the office of the board of election commissioners was open on Monday, April 9, 1956 and on Tuesday, April 10, 1956 from 8 A.M. to 4:45 P.M.; that the board of election commissioners met on Friday, April 6, 1956, to canvass the returns from the election held on April 3; that at the said meeting the board determined that the time for filing petitioners requesting recounts would expire Tuesday, April 10, 1956.
The case was tried to the court, and the following are the findings of fact and Conclusions of law:
'1. That the petitioner was a candidate for the office of alderman for the 18th ward of the city of Milwaukee, county of Milwaukee, state of Wisconsin, at the April 3, 1956, spring election.
'2. That the board of election commissioners of the city of Milwaukee convened as a board of canvassers on the night of April 3, 1956, after the closing of the polls and proceeded to canvass the returns of the election, and completed the canvass on Friday, April 6, 1956, at about 4:45 p. m.
'3. That the board signed the following determination of such canvass on April 6, 1956:
'Statement and Determination of City Board of Canvassers City and Ward Officers, Non-Partisan Ticket
'We Leonard W. Galbrecht, George C. Secora, and Robert Vollbrecht, election commissioners of the city of Milwaukee, constituting a board of canvassers for said city, do hereby certify that from the statements of the inspectors of election of the various precincts of the city of Milwaukee, it appears that at the spring election held in said city on the 3rd day of April, 1956, the whole number of votes given for the office of non-partisan alderman of the 18th ward of the city of Milwaukee, was twelve thousand, seven hundred nineteen (12,719) of which number,
'Ralph J. Landowski received six thousand, two hundred eighty-four (6,284) votes
'Robert E. McIntyre received six thousand, two hundred ...