Armstrong v. City of Hartford

• Decision Date: 05 February 1952
• Citation: 138 Conn. 545,86 A.2d 489
• Court: Connecticut Supreme Court
• Parties: ARMSTRONG et al. v. CITY OF HARTFORD et al. Supreme Court of Errors of Connecticut

Page 489

86 A.2d 489

138 Conn. 545

ARMSTRONG et al. v. CITY OF HARTFORD et al.

Supreme Court of Errors of Connecticut.

Feb. 5, 1952.

Joseph W. Ress, Hartford, with whom were Everett F. Fink, John W. Joy, Hartford, and, on the brief, George J. Ritter, Hartford, for appellants (plaintiffs).

Samuel Gould, Corp. Counsel, Hartford, with whom was Robert K. Killian, Asst. Corp. Counsel, Hartford, for appellees (defendants).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

INGLIS, Judge.

This action was brought by three taxpayers to determine whether a proposed issue of bonds of the city of Hartford is invalid. The question involved is whether the vote at a special election resulted in favor of the issue.

It appears from the finding, of which no requested correction may be made, that on October 9, 1950, the court of common council of the city approved 'An ordinance authorizing $2,940,000 Bonds for a permanent Public Capital Improvement consisting of the Acquisition and Development of a Site for and the Construction of a Public Parking Garage.' The charter of the city provides that no such bonds shall be issued 'unless the ordinance authorizing such issue shall also be approved by a majority of those voting thereon at * * * a special election called and warned for the purpose.' 25 Spec.Laws 56, § 4. Pursuant to that provision, the ordinance in question was submitted for approval or disapproval at a special election on November 7, 1950. The question appeared as No. 3 among four questions on paper ballots. Upon the basis of the reports of the moderators in the various voting precincts, it was reported to the board of canvassers that the vote stood 20,165 in favor of, and 19,139 against the ordinance, with 17,442 ballots rejected and 1124 ballots mutilated.

After a partial hearing of the case in the trial court, the parties stipulated that there should be a recount of the votes cast on question No. 3, to be made by three counters to be appointed by the court. This recount was had, and the counters reported that 22,503 voters voted Yes and 22,154 voted No. A remonstrance to the report was overruled, and the court rendered judgment declaring that the bond issue in question had been approved by a majority of those voting on it.

The controversy on this appeal centers around a total of 982 ballots. These were found in three separate packages none of which were in the sealed ballot boxes when the boxes were opened by the counters. Three hundred and six of these ballots were tied in a bundle with a pink slip marked '306 Void due to error in marking Carroll Moderator 14 Ward 141 Precinct' and carrying the notation 'Mutilated.' Another bundle contained 316 ballots and came from precinct 42. This bundle had an attached pink slip marked 'Rejected Ballots'. The third bundle consisted of 360 ballots held together by elastic bands and labeled, on a sheet of paper, 'Precinct 72 Mutilated.' Each of the three bundles was introduced in evidence and marked as an exhibit. None of the ballots contained in the bundles had been either individually indorsed with the cause of rejection or returned to the ballot boxes and locked and sealed therein by the moderators in the respective precincts after the counting was completed, as is required by law where ballots actually cast are rejected. General Statutes §§ 1071, 1074. The bundles were delivered to the town clerk by the moderators in precincts 141, 42 and 72, respectively, on election night and were put aside and kept by him until he produced them in court. Except as might appear from an examination of the contents of each bundle, there is no other finding bearing on the question whether the ballots were ballots which had actually been cast at the election. The court concluded that the ballots contained in the three bundles should not be counted because they were not returned according to law.

The principal contention of the plaintiffs is that the court erred, not in refusing to count these ballots in determining the number of affirmative votes and the number of negative votes, but in refusing to count them in determining the total number of votes cast. Their point is that, if the 982 votes were added to the total number of votes counted, the total number of votes cast would be 45,639, and of that number the 22,503 affirmative votes are not a majority. This contention was not made in the trial court. For that reason we are not required to consider it. Practice Book, 1951, § 409. In view of the fact, however, that considerations of public interest and welfare are involved, we will pass upon it. Regional High School District No. 3 v. Town of Newtown, 134 Conn. 613, 620, 59 A.2d 527; Columbus Industrial Bank v. Miller, 125 Conn. 313, 315, 6 A.2d 42; Rindge v. Holbrook, 111 Conn. 72, 75, 149 A. 231.

It is obvious that the 982 ballots should not be counted even to determine the total number voting on the question if, as a matter of fact, they were ballots which either had not been cast at all or were improperly cast. The trial court apparently concluded that because they had been handled with such laxity it had not been established that they had ever been deposited in the...