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State v. Walsh
Supreme Court of Errors of Connecticut.September 27, 189262 Conn. 26025 A. 117 L.R.A. 364 (Approx. 11 pages)
State v. Walsh
Supreme Court of Errors of Connecticut.September 27, 189262 Conn. 26025 A. 117 L.R.A. 364 (Approx. 11 pages)
62 Conn. 260
Supreme Court of Errors of Connecticut.
STATE EX REL. PHELAN
v.
WALSH.
STATE EX REL. SANGER
v.
HENRY.
Sept. 27, 1892.
Attorneys and Law Firms
*1 L. Harrison and H. Stoddard, for relators.
W. C. Case, C. J. Cole, and H. C. Robinson, for defendant Walsh.
A. P. Hyde and C. E. Grass, for defendant Henry.
Opinion
CARPENTER, J.
We propose to consider first those questions involving the construction of the act of 1889 relating to elections, known as the “Secret Ballot Act.” Two considerations have had weight with us in adopting this course: First. The construction of that act is of immediate practical importance, in view of the approaching elections; and there is a general desire that those questions should be authoritatively determined at an early day; and, if the court should hold that it has no jurisdiction of these cases, there might be some impropriety in proceeding to discuss and determine minor questions involved. Secondly. If the views taken of those questions shall lead to the conclusion that it is not shown that any one has a majority of all the votes legally cast at the election in 1890 for either of the offices in dispute, both cases will be practically disposed of by the facts, and must necessarily be dismissed, and we shall be *2 relieved of the necessity of considering and determining some grave questions of constitutional law. In taking this course we assume for the purposes of these cases that the court has jurisdiction, at least to the extent of inquiring into and determining the facts of the cases, whatever may be said as to the power of the court in a certain contingency, and, in the present state of things, to apply a remedy. We therefore pass by without discussion the questions (1) whether the general assembly lost its power to declare the result of the election on the second day of its session; (2) if not, whether since that day, from any cause whatever, it has lost that power; and (3) whether, in any event, the courts have, or can have, under the constitution, any jurisdiction over that matter. We purposely refrain from expressing any opinion upon any one of these questions, and wish to have it distinctly understood that they remain open questions.
The first step in ascertaining whether the relator received a majority is to ascertain the whole number of votes cast. The returns, as made to the board of canvassers, show the whole number of votes counted. With these returns, which for convenience sake we will call the “constitutional returns,” the statute requires certain other returns to be made, which we will call the “statutory returns.” The statute (section 240) is as follows: “The presiding officer shall, with the certificate upon the result of electors' meeting, which he is required to send by mail to the secretary of the state, send to the secretary his certificate of the whole number of names on the registry lists, the whole number checked as having voted at such elections, the whole number of names not checked, the number of ballots found in each box, viz., ‘general and representative,’ and the number of ballots in each box not counted as in the wrong box, and the number not counted for being double, and the number rejected for other causes, which other causes shall be stated specifically in the certificate.” It appears from the statutory returns that there were eleven ballots in the town of Branford, and one ballot in each of the towns of Hartford and Middletown, which were rejected, and the reason for such rejection does not appear in the returns of the presiding officers, and did not appear in the evidence before the court. Nor was any evidence offered to show that either candidate's name for secretary was upon any of the ballots so rejected. The court therefore held that such ballots could not be considered for the purpose of affecting the count of the votes for secretary. If by this is meant that those votes could not be counted for either candidate, the course taken was manifestly correct. But if we are to understand, as we think we must, that those votes were not regarded in making up the whole number of votes cast, it is not so clear that it was right. Under a plurality rule, it is material only to count the votes of the two highest candidates All scattering votes are practically disregarded. Under the majority rule, all scattering votes are important, and must be counted. In this proceeding they were rejected, because it did not appear for whom they were cast, or that they were in fact cast for any candidate for the office under consideration. We are inclined to think that that was not a sufficient reason for disregarding them. It will be borne in mind that this is a judicial proceeding for the purpose of ascertaining whether the relator received a majority of all the votes lawfully cast for the office he now claims, in November, 1890, and whether he should have been declared elected in January, 1891. At the time the votes were counted, and at the time when the result should have been declared, these ballots were in existence. They could have been examined, and it could have been easily ascertained for whom they were cast. It is very clear that at that time, and at any time when the ballots were in existence, they should have been included in the whole number of votes cast. Is it not equally clear that the same rule should prevail now? Will lapse of time, the destruction of the ballots, the impossibility of proving for whom the ballots were cast, justify the court in applying a different rule, and proceeding upon a different principle, than the rule that must have been applied, and the principle that must have governed, when the same matter was under investigation by the constitutional authorities? We have assumed, and we think rightly, that these ballots contained votes for some of the several candidates for secretary and treasurer. The ballots rejected were for state officers, or general ballots. The state ticket alone is the subject of investigation. If the ballots conformed to the statute, (and we must presume that they did until the contrary appears,) they contained the names of all the offices, and of candidates for each office. Experience teaches us that, with hardly an exception, every man who votes the state ticket votes for all the offices thereon. There can be no presumption that these ballots were exceptions. The contrary presumption is so strong that hardly any one would hesitate to act upon it in matters of importance concerning his own private affairs.
We have not overlooked the fact that considering these votes now will result in effect in counting them against the relator. It may be said that this is a hardship that the courts ought to avoid; but the hardship is more apparent than real. There can be no legal hardship in showing that a man is not constitutionally elected to an office. If these votes cannot now be considered in determining the whole number of votes cast, it will inevitably operate to the prejudice of others. It will certainly disfranchise all these voters; and that is a political evil of no small magnitude, to say nothing of the possibility that another may be deprived of the office. But whatever hardship there is in fact is a hardship that the court does not cause, and it is in no wise responsible for it. The responsibility lies at the door of another tribunal. The relator, like any other party who assumes the burden of proof, must prove his case. If for any reason he fails to do so, his suit fails. The burden *3 is on the relator, and we do not think there is any legal presumption that will operate to change it. If it appeared upon the face of the returns that the ballots were legally rejected, it would have presented a different case. There is a presumption in favor of the legality of a transaction when it appears to have been done in compliance with the law; but there is no such presumption when it appears that the law was not complied with, and the courts can make no intendment in favor of its legality. The law requires that the cause for rejecting a ballot “shall be stated specifically in the certificate.” That duty was wholly omitted. The act of rejection was illegal on its face. There can be no presumption to sustain an illegal act.
A majority of the court is of the opinion that these votes should have been included in the whole number of votes cast. There were in the state 509 ballots rejected “for being double.” The respondent claimed that under the act of 1889 that was not a legal cause for their rejection. Previous to that act, the statute provided “that no double ballot for the same office * * * shall be counted.” Section 238. By the act of 1889 (section 9) it is provided: “If more than one ballot for the same office shall be found in any envelope, and such ballots shall be for the same person, only one shall be counted. And if such ballots shall be for different persons for the same office, neither of such ballots shall be counted.” That act also contains a repealing clause as follows: “Sec. 16. All acts or parts of acts inconsistent herewith are hereby repealed.” Thus the law was, at the last election, that no ballot could be lawfully rejected for being double unless it appeared that the several ballots in the same envelope were for different candidates for the same office. That fact, if it exists, being essential to a legal cause for rejection, must be “stated specifically in the certificate.” On the face of the certificates, therefore, these ballots seem to have been illegally rejected.
The claim made by the respondent in each case, the answer of the court thereto, and the facts bearing upon the question, appear from the following extract from the record: “The defendant claimed that the burden was on the relator to show by evidence outside of said returns that said rejected ballots were legally rejected by said moderators, and that otherwise the court should find that said ballots were not legally rejected, and count the same for the purpose of estimating the total number of votes cast. In no case, except in the single instance of the town of Enfield, did it appear for whom such rejected ballots had been cast, or that the name of either candidate for secretary was upon any of the ballots so rejected. The court overruled the defendant's claim, and declined to count said ballots so rejected as double, except the ballot in the town of Enfield, hereinafter referred to. No evidence was offered to show that all of said ballots were not for different persons for the same office, and that said ballots were not, therefore, double ballots within the meaning of the law; and no evidence was produced before the court to show that for any reason any of said ballots were impoperly rejected, except one ballot in the town of Enfield. In Enfield two straight Republican ballots, each bearing the name of George P. McLean for secretary, were found folded together in the same envelope. The moderator decided that both ballots should be rejected. This was an error. By the provisions of section 9, c. 247, Pub. Acts 1889, one of said ballots should have been counted and one rejected. I therefore find that 508 ballots so rejected by the moderators in said town were properly rejected and excluded from the count, and that one ballot was improperly rejected, and should be counted for said McLean for secretary.” The same finding, with change of names, is in the other case. We cannot resist the conclusion that the court below took a mistaken view of the law. It depends mainly upon the question, on whom was the burden of proof? The court manifestly held that it was on the defendant. The defense expressly claimed that the burden was on the relator to show that the ballots were legally rejected, and the finding is explicit that that claim was overruled. This same question arose in the preceding point. The difference is between giving no reason for rejecting the ballot, and giving a reason that is insufficient. The difference in principle is imperceptible. Much of the reasoning under that head applies equally well to this. We refer to it without repeating it. The burden of proof generally was on the relator to prove that he received a majority of the legal votes. In respect to this particular matter, if the reason given was sufficient on its face, the relator might properly rest; and then it would have been incumbent on the defendant to show its illegality. If insufficient, then it was for the relator to meet it by showing that the votes were in fact rejected for good reasons, or that the ballots contained no votes for secretary, etc., or that for some other reason said ballots should not be taken into account. Thus it seems to us very clear that the burden of proof to show the legality of ejecting these ballots rested on the relator. If so, the court was clearly wrong in holding, upon no other evidence than the face of the certificates, that the ballots were illegal, and were properly rejected.
It is suggested that by the term “double ballot,” as used by the moderators, must be understood a ballot double in the sense that it must by the terms of the act of 1889 be rejected. We cannot assent to that proposition. As the law stood prior to 1889, every ballot that was double must be rejected. Not so with the act of 1889. Under that act no ballot can be rejected merely because it is double. If the two ballots are for the same candidate, one is to be counted as the vote of the person depositing the envelope. The other is not counted, because it represents no voter, and therefore is not a legal vote. Under the present statute there can be but one vote in one envelope. Surplus ballots are not votes, and do not vitiate, provided it can be known how the voter intended to vote. If the ballots differ, the intention *4 cannot be ascertained; hence neither can be counted. It may be said that these rejected ballots are the surplus ballots not counted when the envelope contained two or more ballots for the same candidates, and therefore the votes of all these voters have been counted once. If that was so, the course taken by the judge on the trial was clearly right. But we are unable to take that view of it. Manifestly, the judge himself did not so regard it. If he had, that of itself would have been an all–sufficient reason for not counting the ballots now, and there would have been no occasion for him to resort to other reasons. We do not think that section 240, Gen. St., as modified by the act of 1889, requires such ballots to be returned as rejected. Section 240 only requires ballots to be returned when the voter has been disfranchised. A rejected ballot implies that. Hence, when his vote is counted, no return is necessary. That accords not only with the letter of the statute, but with its reason and spirit as well. The act of 1889 does not change the object and purpose of the law. It still requires that rejected ballots only shall be returned, and then only when the voter loses his vote; and that, as the law now stands, is only when the several ballots are for different candidates. If we are right in our view of the law (and of that we entertain no doubt) and of our interpretation of the ballots rejected “for being double,” then clearly these ballots should have been counted; but if it be claimed that rejected ballots mean something different from what we have supposed, then we think it is reasonably certain that the most that can be said is that it is doubtful whether they may not mean something else, and something that will show that they ought not to be counted. Concede, for argument's sake, that there may be such a doubt, then, we would ask, in the presence of such a doubt, has the relator established a clear title to the office, especially if counting these ballots would change the result? In either event, must not the disposition of these cases be the same?
It was strenuously urged in the argument that it must be presumed that the doings of the moderators were regular and legal till the contrary appears. We have said that there can be no such presumption when it appears that they did not conform to the law. All facts essential to their jurisdiction to reject ballots must appear affirmatively. The court will presume none, and supply no omissions by intendment. But, suppose there is such a presumption. Then it is met and neutralized by another, viz., the presumption that every voter has conformed to the law, and done no act which should deprive him of his vote. These two presumptions are incompatible; both cannot stand. It is more charitable to suppose that the moderators have made a mistake than that the voters have done some act by which they have incurred the penalty of temporary disfranchisement. We think the presumption in favor of the voter must prevail.
Before considering the objections to the different classes of ballots, we desire to say a word generally concerning the act of 1889, c. 247. The first section prescribes the requirements of a valid ballot.1 In regard to this there is little room for construction. When the legislature has expressed its intention in unmistakable language, that intention must prevail. But we are not expected to extend the scope of the statute by construction. As it is somewhat penal in its consequences, a reasonably strict construction should be the rule. We are not at liberty to a void a ballot that is not within the expressed intention of the legislature. On the contrary, like all penal statutes, it should be limited by construction, if necessary, so as to prevent its application to cases clearly not within its equities. The ninth section is less specific. It is left to those who enforce the law to determine what is a distinguishing mark. Here is a wide latitude for construction. The language is: “If any envelope or ballot shall contain any mark or device, so that the same may be identified in such a manner as to indicate who might have cast the same, it shall not be counted,” etc. It does not require that it shall be proved that the mark was used to identify the voter. If it did, it would practically nullify itself in many cases. A less degree of evidence may satisfy one that the mark was used to identify the ballot so as to indicate who might have cast the same. It is not easy to define in general words a mark or device here intended. We may only make some suggestions that will aid us in applying the statute to particular cases. The twelfth section allows the voter to make some changes. Obviously such changes may be so made and used as to point out the voter. Accidents and mistakes may cause many ballots to be distinguished from others. In all such cases care should be used that the rights and convenience of the voter are not unnecessarily interfered with. There are two classes of marks. One is where a plausible reason is or may be suggested for their existence, consistent with honesty and good faith; the other, where no such reason can be suggested. The former will rarely be allowed to invalidate a ballot, unless it appears that it was in fact used for corrupt purposes; the latter, unexplained, will generally be presumed to be for corrupt purposes.
We will now consider the cases in detail, using the numbers corresponding with the numbers of the paragraphs in the record.
(2) The errors in the towns of Preston, Norwich, Oxford, etc., were properly corrected in the court below.
(3) The legality of those ballots printed with the word “For” prefixed to the name of the office, in the absence of any finding that they were so printed for the purpose of identification, etc., has been affirmed by this court. Fields v. Osborne, 60 Conn. 544, 21 Atl. Rep. 1070. We have no occasion now to add to what we then said. Such of these votes as were counted were *5 properly counted. Those that were rejected should now be counted.
(4) The folded or creased ballots in the town of East Lyme were each folded precisely alike, and in a strikingly unusual manner. The crease made by folding produced enduring and permanent marks of such a nature that when unfolded these ballots can readily be separated and distinguished from other ballots folded in the ordinary manner, and at a greater distance than if marked with a pencil or with ink. These ballots were folded by the same hand, or under the direction of the same brain, and before being deposited in the ballot box. There were similar ballots in the town of Sharon. It is difficult to imagine any legitimate purpose for which these ballots could have been so folded. They should be rejected.
(5) In New Haven there were 19 Republican ballots, with each of which were found in the envelope a printed circular from the Republican town committee advising the voter to vote early, and giving the location of the voting place, etc. There are so many of these votes as to preclude the idea that they were the result of ignorance, accident, or mistake. That leaves the presumption pretty strong that the circulars were there by design. If by design, it is difficult to conceive of any honest motive for it. We think these votes should be rejected.
Paragraphs 6 to 17, inclusive, may be considered together. They relate mostly to alterations in the ballots in respect to the office of judge of probate. In some instances ballots designed for one probate district were by mistake sent to another district. The tickets of the Industrial Reform, the Prohibition, and in some instances of the Democratic parties, were printed without the name of any candidate for judge of probate. These tickets were generally voted. In many ballots the name of the candidate for judge of probate was erased, and the name of another written in its place, either with a pencil or with ink. Sometimes a printed paster was used, and sometimes one written with a typewriter, etc. When the name was left a blank, the blank was filled in a similar manner. And generally the ballots were changed so as to adapt them to the town where used, and to the views of the voter. We do not think that the tickets issued with the name of no candidate for judge of probate were thereby invalidated. In every instance we can see that the party had a plausible reason for it, consistent with good faith; so that there is no occasion to resort to an inference that they were designed for improper parposes. The party may have made no nomination; the ballot may have been printed before the nomination; or some other reasonable cause may exist. It is expected, doubtless, that the whole ticket will ordinarily be printed. But if any part is omitted, apparently for good cause, the question is whether the legislature intended that the ballots should thereby become void. The statute does not say so in terms. It prescribes the general requisites of a ballot, and then provides that if it does not conform thereto it shall be void. To hold that such an omission as this makes it void would be to extend the statute some what beyond the letter, and clearly beyond its spirit, which is hardly allowable in a statute penal in its nature. The changes to make the ballots sent to the wrong towns conform to the towns where used are allowable. They consist mainly, if not entirely, in erasing names and substituting others. It was done under that part of the twelfth section allowing a voter to erase, interline, and use a paster. That section was designed to alleviate the otherwise rigid features of the statute, and is remedial. Assuch it should receive a liberal construction. Hence, if a man may erase and insert, he may procure others to do it for him; or he may adopt the act of others after it has been done. If he may erase and insert, he may fill a blank. These are all acts of the same nature as the acts which the statute expressly permits; hence they are within the spirit of the statute. A construction that would limit this section to the thing expressed would be unusual, and, we think, unwarrantable.
Using ballots sent to wrong towns, with names of candidates thereon who were ineligible by reason of nonresidence, did not vitiate. In Fields v. Osborne, 60 Conn. 544, 21 Atl. Rep. 1070, ballots were used at a town election having the office of judge of probate thereon and the name of a candidate. This court held that the ballot was illegal. The extraneous matter was foreign to the ballot. A judge of probate could not be elected at an election for town officers, and the office of judge of probate and the name of a candidate for that office had no place on the ticket. It was therefore matter in excess of the express requirements of the statute, and was in terms prohibited. Here the ballot was in the usual form, and contained nothing foreign to it. The men named as candidates did not reside in the district, but that did not appear on the face of the ballot, and in law does not make the ballot void. There was one ballot in the town of Sterling, counted for the relator, which had the part of the ballot below the words “Judge of Probate” cut or torn off. That ballot did not conform to the statute. The statute makes it void, and it should not have been counted.
(18) In the town of Litchfield the Democratic ballots were printed with the name of Mr. De Forest, the candidate for congress, in capital letters, with one exception, as follows: ROBERT E. De FOREST. Said ballots were used at the polls until about 10 o'clock, when it was suggested that the ballots were wrong. Thereupon the Democratic committee, for the sole purpose of correcting the supposed error, had pasters printed, changing the small “e” to a capital of the same size of the other letters, and pasted them over the name as originally printed. After that 247 of these ballots were cast, and 40 were cast before. All were counted for the relator. We have no doubt that they were properly counted. The first section of the act requiring type of uniform size was strictly complied with in all other respects. In that there was a violation of the *6 strict letter of the law, but it was not a violation of its spirit and intent. We do not feel justified in throwing out votes for such a cause. It is a matter of common knowledge that this name, and many others of like character, are often, if not usually, printed in a similar manner. We cannot believe that the legislature intended to prohibit it in such cases. We cannot impute to it an intention to interfere with the ordinary mode of printing a name. The ballot as first printed was a substantial compliance with the statute, and the amendment, though unnecessary, was fairly justified by the twelfth section.
(19) One Rathbun was the Republican candidate for judge of probate in the district of Lyme. The Democrats adopted the nomination, but in printing his name spelled the last syllable with an “r.” The mistake was discovered, and the “r” erased in ink. In that condition the ballots were used by the voters. Bad spelling does not vitiate; correcting it ought not to. The transaction carries on its face the explanation, which is consistent with the honesty of the voters, and there is no ground for supposing that it was designed for the purpose of identification. Nor is it additional matter within the prohibition of the first section of the statute. The ballots were properly counted.
(20) There were four Republican ballots in the town of Hartland, with the name of Orton B. French as candidate for judge of probate printed thereon. Three of them had two pasters over the name of French, one of them containing the name of J. Hurlburt White, and the other the name of Almon C. Banning. White resides in Hartford, and was a candidate for judge of probate in the Hartford district. That three ballots should be treated in precisely the same very unusual way is a circumstance that requires explanation. As none is given, and as we can imagine no honest one that can be given, we must regard them as within the prohibition of the ninth section. The other of said four ballots has the name of Miles B. Preston, written in pencil under the name of said French. That is within the prohibition of the first section. All said ballots should have been rejected.
(22) Of the 126 ballots rejected in the town of Bridgeport for the reason that they had thereon marks which were supposed to have been for the purpose of identifying them, 124 should be counted, as it now appears that the supposed marks were accidentally caused in printing.
(25) Fourteen Republican ballots in the town of Winchester were rejected because they had pasters written in ink, in the same handwriting, but a different name on each paster, pasted over the name of the candidate for lieutenant governor. One of said ballots had the name of the relator on it pasted over the name of the opposing candidate. We are inclined to think that it was competent for the moderator to find that said pasters, each having a different name as a candidate for lieutenant governor, written in the same handwriting, was a device for identifying the voter who cast each of said ballots, and was a distinguishing mark within the meaning of the law. Certainly no satisfactory explanation of the suspicious circumstances appears, and we cannot say that the action of the moderator was wrong or unjust.
SUMMARY.
The superior court is advised that the ballots rejected by the moderators, giving no reason therefor, and those rejected for being double, should be counted in estimating the whole number of votes cast. That the errors in the count should be corrected. That the “For” ballots, so called, should all be counted. That the folded or creased ballots in East Lyme and Sharon should be rejected. That the ballots found in the envelopes with printed circulars should be rejected. That all ballots referred to in paragraphs 6 to 17, inclusive, should be counted, except the mutilated ballot in the town of Sterling, which should be rejected. That the 287 ballots referred to in the town of Litchfield are legal, and should be counted. That the ballots in the town of Lyme, in which the letter “r” in the last syllable in the name of the candidate for judge of probate was erased, are legal, and should be counted. That the four ballots described in paragraph 20 should be rejected. That 124 of the 126 ballots rejected in the town of Bridgeport should be counted. That the 14 ballots in the town of Winchester, rejected by the moderator for the reason stated in paragraph 25, were properly rejected.
ANDREWS, C. J., and TORRANCE, J., concurred.
SEYMOUR and FENN, JJ., (dissenting.)
We cannot concur in that position of the opinion of the majority of the court which holds that the superior court, in ascertaining the whole number of votes cast for secretary at the election of November, 1890, should have counted the 509 ballots which the evidence of the counters' returns and moderators' certificates show were rejected and excluded from the count for being double. It was the duty of the relator, under the allegations of his information, to prove that he received a majority of the votes cast at such election. In discharge of that duty he introduced “the evidence of the sworn officials who actually made or participated in the count of the ballots in the several election districts of the state, together with the counters' certificates, made immediately after the completion of the count, in duplicate, and agreed to and signed by the counters participating in the count, and filed with and indorsed by the moderators of the electors' meetings in the several towns, and by them deposited, one in the ballot box and one with the town clerk of each town, to be kept on file pursuant to section 237 of the General Statutes. This evidence was further supplemented by the moderators' returns and certificates of the vote for secretary, and at least by the evidence of one witness who participated in the count and declaration of the vote in open meeting, and who testified that the figures for the different candidates for *7 secretary, as shown in the tabulated statement attached to the finding, were either agreed upon without question by the sworn counters who participated in the count, or, if there was a question in regard to whether certain ballots should be counted, are the figures which the moderators in the several towns or districts determined in the exercise of their discretion under the law, and are the figures which were declared by said moderators in open meeting, without question, by those present at the time of said declaration.” The evidence of the counters' returns and moderators' certificates show, among other things, that there were in all 509 ballots rejected and excluded from the count in the different towns, for being double. The finding states that “the defendant claimed that the burden was on the relator to show by evidence outside of said returns that said rejected ballots were legally rejected by said moderators, and that otherwise the court should find that said ballots were not legally rejected, and count the same for the purpose of estimating the total number of votes cast. In no case, except in the single instance of the town of Enfield, did it appear for whom said rejected ballots had been cast, or that the name of either candidate for secretary was upon any of the ballots so rejected. The court overruled the defendant's claim, and declined to count said ballots so rejected as double, except the ballot in the town of Enfield, hereinafter referred to. No evidence was offered to show that all of said ballots were not for different persons for the same office, and that said ballots were not, therefore, double ballots within the meaning of the law; and no evidence was produced before the court to show that for any reason any of said ballots were improperly rejected, except one ballot in the town of Enfield. In Enfield two straight Republican ballots, each bearing the name of George P. McLean for secretary, were found folded together in the same envelope. The moderator decided that both ballots should be rejected. This was an error. By the provisions of section 9, c. 247, Pub. Act 1889, one of said ballots should have been counted and one rejected. I therefore find that 508 ballots so rejected by the moderators in said towns were properly rejected and excluded from the count, and that 1 ballot was improperly rejected, and should be counted for said McLean for secretary.” We think that the ruling of the superior court in this behalf was correct. Upon general principles there is, of course, no reason for requiring the relator to justify in advance the rejection of the 509 ballots by evidence outside of the returns, which does not equally apply to the Bridgeport ballots, and indeed to all the other rejected ballots which were in dispute, and which the finding states that the defendant, after the relator had rested his case, produced evidence to show were improperly rejected, and should have been counted for the defendant.
The conclusion that evidence outside of the returns is necessary in respect to the 509 ballots before such returns become even prima facie evidence is based upon the claim that the statement of the respective certificates that the ballots were rejected “for being double” is not a sufficient statement of the reason of their rejection, and that, therefore, they stand precisely as if no reason for rejection had been stated. It seems to us that any careful examination of the statutes, as they were before and after the election law of 1889 was passed, will show that such claim has no foundation whatever to support it. The law which was in force when the act of 1889 concerning elections was passed defined a double ballot as consisting “of two or more pieces of paper upon which are duplicated or repeated the names of one or more candidates for the same office.” It provided that no double ballot for the same office should be counted, and that, if any ballot should contain a greater number of names for any office than is provided by law, it should not be counted for any person for such office. The act of 1889 provides that, “if more than one ballot for the same office shall be found in any envelope, and such ballot shall be for the same person, only one shall be counted; and, if such ballots shall be for different persons for the same office, neither of such ballots shall be counted.” The law requires that the moderators of the respective meetings “shall decide, in case of doubt or dispute, as to the reading of a ballot, or whether a ballot should be rejected as double or for any other cause; that all ballots rejected for being in the wrong box, for being double, or containing an excess of candidates, or for any other cause, shall * * * be preserved in a separate parcel, * * * and returned to the box with the valid votes.” The law further requires the ballot boxes to be locked and sealed after the ballots are counted and returned to them, and to be carefully preserved, with the seal unbroken, for six months, except in case of an official examination. It is the duty of the respective presiding officers of the electors' meetings to send to the secretary, with the certificate of the result of the electors' meeting, which he is required to send by mail, his certificate also of “* * * the number of ballots in each box not counted as in the wrong box, and the number not counted for being double, and the number rejected for other causes, which other causes shall be stated specifically in the certificate.” Such being the law, it appears that in the state 509 ballots were rejected by the several moderators as being double, and a proper certificate was returned to the secretary to that effect. The finding states that the ballots used at the election were kept in the several towns, in the ballot boxes, for the six months after the election, as required by law, and after that time, except in 15 towns named, the boxes were open, and the ballots generally destroyed, or so manipulated as to be of no value for the purpose of ascertaining their number. The finding states that no claim was made that a re–examination of the ballots, in any of the ballot boxes of the 15 towns in which they had not been opened and the ballots destroyed or manipulated, would in any particular vary or change the result *8 of the count or state of the vote, as shown by the counters' evidence and returns and the moderators' certificates, except in the towns of Bridgeport, East Lyme, and Thompson, and in those towns upon other points than the double ballots. The court therefore saw no reason to open, and did not, in fact, open, the boxes except from said three towns, although the boxes from all fifteen towns were in court, and the relator made the general offer to have them all opened.
The statute (Gen. St. § 237) requires the counters to deliver to the moderator, immediately after the count is completed, “a certificate in duplicate, stating the whole number of ballots found in their box, the number of ballots rejected because in the wrong box, the number rejected as double, the number rejected for any other reason, and the number of votes counted for each candidate and office, respectively.” This is a clear and explicit statement of what the certificate shall report in respect to rejected votes. If rejected for being double, the certificate shall so state. So, if rejected for being in the wrong box; and, if rejected for any other reason, that reason shall be stated. “Rejected as double” is the formula which the statute itself provides when ballots are rejected for being double. The requirement that the number of ballots rejected “for any other reason” than the reasons already stated, necessarily implies that certain reasons have been already required to be stated, when they exist, and that they are reasons which, when stated in the terms of the statute, fulfill its requirements. In short, the statute treats “for being double” as a sufficient reason to be stated in the certificate, and in terms requires it to be given as the reason when ballots are rejected, not for being in the wrong box, nor for any other reason. The provision in section 240 of the statute, that when the ballots shall be rejected for any other causes than for being in the wrong box or for being double, such “other cause shall be stated specifically in the certificate,” shows that “for being in the wrong box” and “for being double” are regarded in the statute as being specific statements of the cause of rejection. What better could the moderators do than follow the plain instructions of the law? Was it for them, in each instance of rejection, to add to its requirements, and state whether it was a case where more than one ballot for the same office was found in the envelope, or a case where more than one ballot was found for different persons for the same office, any more than it would be their duty to state into which of the wrong boxes a ballot rejected for being in the wrong box was placed when, as at a town election, more than two boxes were used? To so hold seems to us to do violence to the ordinary rules of statutory construction, and to make the law a snare to catch moderators,––the statute instructing them, in explicit terms, to do one thing, and the courts, by a construction of those unambiguous directions, requiring of them to do other things in addition, upon the penalty of otherwise defeating the election.
It is certain that when the secretary, acting pursuant to section 241 of the statute, transmitted to the town clerks of the several towns, before the biennial electors' meeting in 1890, blank forms for the returns required to be made, such was not the construction placed upon the law by that official, for the record discloses that all those forms contained “for being double” as the ground of rejection to be stated in the returns, when it existed. That this fact should have some weight in the construction of the law is manifest. In Fields v. Osborne, 60 Conn. 551, 21 Atl. Rep. 1070, this court gave weight, in determining upon the validity of the “For” ballots, to the fact that the secretary, in an unofficial notice, sent to every post master, town clerk, and chairman of Democratic and Republican committees, a form of ballot containing the word “For” before the title of every office named therein. Contemporary construction of the law by those whose duty it is to act under it has ever been regarded as entitled to consideration. Yudkin v. Gates, 60 Conn. 426, 22 Atl. Rep. 776, and cases therein cited. Again, the statute (section 241) not only requires the secretary to transmit forms for returns, but it also expressly requires that “said returns shall be made out, certified, and directed according to such forms.” This seems to us an additional reason for declining to hold that, when the mandate of the law has been complied with, every return throughout the state so made in compliance therewith must be held presumptively void, and that “on the face of the certificates the ballots rejected for being double seem to have been illegally rejected.” Upon every principle, official forms for ballots or returns which have been relied upon and used should be upheld, unless clearly illegal. Election laws, especially as regards the duties of the officials to whom the conduct of elections is intrusted, should be as simple and plain as possible. The officials should be held to a compliance with their provisions, without adding thereto or abating therefrom. Any construction which adds to the stated provisions of the law, and requires the official to go beyond them, is fraught with mischief, and will open the door to endless contentions.
The situation, then, is this: The moderators of some of the electors' meetings decided that certain ballots must be rejected as double. The ballots so rejected were indorsed and preserved, in accordance with the statute, in the box with the valid votes. The counters, upon the completion of the count, delivered to the moderator a certificate in duplicate, containing the statutory statements, and, among others, the statement of the number rejected as double. The moderators sent to the secretary, in connection with the certificate required of the result of the electors' meetings, a certificate containing, among other things, a statement of the number of ballots not counted for being double. The returns required by law are duly made. The votes, as returned, are counted by the legal canvassers. A full list of the persons and number of votes given for each, together with the returns of the presiding officers, is laid before the general *9 assembly. The general assembly neglects to act, either by declaring the person whom they legally find to be chosen, and giving him notice accordingly, or by proceeding on the second day of its session, as is provided when no person is duly elected, to choose a secretary. Months elapse. The last incumbent of the office is holding over under the provisions of the law, though not a candidate at the election of 1890, and not claiming to have been elected at that election. The relator brings an information in the nature of a quo warranto, in which he claims to have received a majority of the votes cast for secretary at the last–named election. It is insisted that he has not shown that he had such a majority, because he had not proved, in addition to his other evidence, that the votes rejected as double were legally rejected; that he must justify in advance the decision of the several moderators in rejecting the 509 ballots; and that there is not only no presumption in favor of the regularity of the official decisions, count, and returns, but a presumption against them, for the defendant, after stating the differences between the old law and the present law of 1889 in regard to the treatment of double ballots, and after showing that under the old law both of the double ballots were to be rejected, while under the present law, if more than one ballot for the same office shall be found in any envelope, and such ballots shall be for one person, one shall be counted, says: “If the statement of these certificates [i. e., that the rejected ballots were rejected for being double] is to be taken without explanation, the clear inference is that ballots were summarily rejected for the reason that they were double, in conformity with the law as it was before 1889;” which is to say that the clear inference is that the officials appointed and acting under the law of 1889 were either ignorant of its provisions or willfully disregarded them, and, acting under the old law, rejected both ballots where more than one for the same office and for the same person were found in one envelope. We have not so understood the law respecting the presumptions arising from official acts.
The whole matter seems to us plain and easily stated. This court held in State v. Bulkeley, 23 Atl. Rep. 186, that the information was insufficient, upon demurrer, in not alleging that the relator had a majority of all the votes, but only the majority as it appeared by the returns of the presiding officers, while other parts of the information showed that such apparent majority was in dispute. The relator in that case went upon the theory that in court, upon an information in the nature of quo warranto, as well as in the general assembly, the official returns could not be contradicted or questioned, but were conclusive. He claimed, in effect, that, under the admission of the demurrer that the returns showed him to have a majority of the votes, he was, so far as that point was concerned, and if that was the only question in the case, entitled to a judgment in his favor. But this court said: While the writ of quo warranto is the form of action specially adapted to try the right to an office, yet it tries only the real title. It can never be used to try a merely apparent title; that is to say, the admission of an allegation in a quo warranto information that the returns show that the relator had a majority of the votes cast, does not, of itself, entitle him to a judgment. In the courts, the returns, when offered in evidence, are not exempt from examination, to test and contradict, if it does so, their correctness. But this is very far fron saying that, if they are subjected to no examination, they prove nothing. The inherent unsoundness of such a proposition will, we think, be apparent upon a consideration of the situation. In an information like the one under discussion the relator must aver, among other averments, as the foundation of his proceeding, in substance, that upon a day named an election for state officers was held, as required by the constitution, and that he was one of the persons voted for at said election for secretary; that the list of persons voted for at the meeting of the electors in the respective towns of the state, so held for such purpose, and of the number of votes at such meetings given for each, were made and certified by the proper officers, and were by such officers transmitted, together with the returns of said election, to the secretary, and that the votes so returned showed that he had a majority of all the votes cast for secretary at such election. No lawyer would venture to omit such averments from an information. Nor would he venture to rest his case without proving such of them as were denied, and were not of a character to be judicially noticed. The facts averred are a part of the election process. After he has proved that the legal returns give him a majority of the required votes, that the processes of election, so far as they have been exercised, show that he is entitled to a declaration of his election, has he proved nothing which it requires counter proof on the part of the defendant to overthrow? Must he justify, before any evidence is offered to impeach them, the decisions of the officials to whom the law intrusts the conduct of elections? Would any one contend, had it been intimated in the trial of this case, that, in addition to the averments above suggested as necessary to an information like this, it should be added that all the decisions of said moderators and other officials were correct and in strict compliance with the requirements of law, or is that assumed until the contrary is, at least, suggested? To hold that it will not be assumed seems to us to contradict all the rules respecting the presumptions which the law makes and should make in favor of official acts, and to cast a burden upon the relator which it is not his duty to bear. The law places the duty upon the moderators of deciding whether certain ballots should be rejected as not conforming to the statute. If they do not conform, they are not valid ballots under the law, and cannot be counted in estimating the number required to constitute a majority. The moderators decided that 509 ballots in different towns did not conform to the law, and they were not counted. The superior court declined *10 to assume, in the absence of any attempt to impeach the action of the moderators or of the counters of returns, that the ballots were improperly rejected, or that the burden was on the relator to support the correctness of the official returns until they were attacked. We think the action of the superior court was correct, and should be sustained upon principle and authority alike.
Taylor, in his work on Evidence, places the presumption stated in the maxim, omnia præsumuntur rite acta esse, and which he says is one of the most important presumptions known to the law, among what he calls disputable presumptions, or presumptions which, while sufficient to establish a prima facie case, and to throw the burden of proof on the other party, may always be overcome by opposing proof. He gives many instances of the application of this presumption to acts of an official and judicial character. High, Extr. Rem. § 638, says: “It is now the well–established doctrine that in proceedings upon information to test the title to a public office the return or certificate of canvassing officers as to the result of the election is not conclusive as to the result or the title to such office. Such officers are, in general, held to be only ministerial officers, vested with no judicial functions whatever, and their return is, at the most, but prima facie evidence in favor of the incumbent of the office. The courts will therefore go behind such returns, and will investigate the facts of the election, the number of votes cast, and the legality of the action of the canvassers. For this purpose they may receive testimony, and make all needful investigation to determine the question in dispute, and, if satisfied that the proceedings of the canvassers are erroneous, judgment of ouster will be given.” Was there any evidence in this case to satisfy the court that the proceedings of the officials were erroneous, except in the case of the two Enfield ballots? Judge Cooley, in his work on Constitutional Limitation, (5th Ed. p. 785 et seq.,) says: “As the election officers perform for the most part ministerial functions only, their returns, and the certificates of election which are issued upon them, are not conclusive in favor of the officers who would thereby appear to be chosen, but the final decision must rest with the courts. * * * Where, however, the question arises collaterally, and not in a direct proceeding to try the title to the office, the correctness of the decision of the canvassers cannot be called in question, but must be conclusively presumed to be correct. * * * The most important question which remains to be mentioned relates to the evidence which the courts are at liberty to receive, and the facts which it is proper to spread before the jury when an issue is made upon an election for a trial at law. * * * We have already seen that the certificates or determinations of the various canvassing boards, though conclusive in collateral inquiries, do not preclude an investigation by the courts into the facts which they certify. They are prima facie evidence, however, even in the courts, and this is so notwithstanding alterations appear. But back of this prima facie case the courts may go, and the determinations of the state board may be corrected by those of the district boards, and the latter by the ballots themselves, when the ballots are still in existence, and have been kept as required. If, however, the ballots have not been kept as required by law, and surrounded by such securities as the law has prescribed with a view to their safe preservation as the best evidence of the election, it would seem they should not be received in evidence at all, or, if received, it should be left to the jury to determine, upon all the circumstances of the case, whether they constitute more reliable evidence than the inspectors' certificate, which is usually prepared immediately on the close of the election, and upon actual count of the ballots as then made by the officers whose duty it is to do so.” It is stated in 6 Amer. & Eng. Enc. Law, p. 335, that “the returns, when regular and properly authenticated, are not only conclusive upon the board of canvassing officers, as we have seen, but are also prima facie evidence of the number of votes cast in a proceeding to contest the election; and the burden of proof is upon the person who assails their correctness.” See, also, opinion of COMSTOCK, C. J., in People v. Minck, 21 N. Y. 541, and People v. Cook, 8 N. Y. 67, and cases cited in Cooley, Const. Lim, supra.
We have laid no stress in this opinion upon the requirement of our statute that the moderator shall “decide” whether a ballot shall be rejected as double, or for any other cause. If the function he performs of thus deciding is ministerial only, and not judicial, yet the authorities already referred to abundantly support the position to which a consideration of the legal principles involved seemed irresistibly to lead, namely, that the returns and certificates which were introduced were to be taken as correct until attacked, and that the 508 ballots, against the legality of rejecting which no proof was offered, could not be counted in ascertaining the number of votes cast for secretary at the last election. It is suggested in the opinion of the majority of the court that, even if such a presumption in favor of official acts exist, yet in this case it is met and neutralized by the presumption that every voter has conformed to the law, and done no act which should deprive him of his vote. We do not understand that such presumption has ever been held to neutralize the presumption arising from official acts. But in this case we submit that no such presumption exists. It was not claimed at the trial, nor at the argument before us, that there were not 509 cases where the voters had in fact failed to conform to the law by depositing ballots which violated some one of its provisions. The contention was, not that the voter had observed the law, but that the moderator had failed to sufficiently particularize which provision of the law against double ballots had been violated.
The conclusions to which we have come in this case apply with equal force to the case of State ex rel. Marvin H. Sanger vs. *11 E. Stevens Henry, which was argued in connection with it. And for the reasons herein stated we think that the action of the superior court in that case also, in declining to count the ballots rejected by the moderators as double, except the ballot in the town of Enfield, was correct, and should be sustained.
All Citations
62 Conn. 260, 25 A. 1, 17 L.R.A. 364Footnotes
In addition to the official indorsement, the ballots shall contain only the names of the candidates, the office to be voted for, and the name of the party issuing same.
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