Clarke v. Joslin

• Decision Date: 03 July 1912
• Citation: 83 A. 843,34 R.I. 376
• Parties: CLARKE et al. v. JOSLIN et al.
• Court: Rhode Island Supreme Court

83 A. 843

34 R.I. 376

CLARKE et al.

v. JOSLIN et al.

Supreme Court of Rhode Island.

July 3, 1912.

Petition in equity in the nature of quo warranto by Charles K. Clarke and others against William H. Joslin and others. Petition denied and dismissed as to plaintiff Round, and decree entered in favor of the other plaintiffs.

Wilson, Gardner & Churchill, of Providence, for petitioners.

Willis B. Richardson and Arthur E. Munro, both of Providence, for respondents.

SWEETLAND, J. This is a petition in equity in the nature of quo warranto, brought under the provisions of chapter 328, Gen. Laws 1909. It brings in question the title to the offices of first, third, and fourth member of the town council and of the assessor of taxes for three years in the town of Scituate.

At the annual election for town officers in said town, held on May 15, 1912, the petitioners were the regular Republican candidates for said offices as follows: Charles K. Clarke, Frank F. Brown, and Joseph B. Round were candidates for the offices of first, third, and fourth member of the town council, respectively, and Benjamin Wilbur was a candidate for the office of assessor of taxes for three years. At said election the respondents William H. Joslin, Frank H. Wilbur, and George O. Rathbun were the regular Democratic candidates for the offices of first, third, and fourth member of the town council, respectively, and Manuel F. Williams was the regular Democratic candidate for said office of assessor of taxes for three years. There were no other candidates for either of said offices. At the official count of the ballots cast at said election, made by the town council, the respondent William H. Joslin was declared elected to the office of first member of the town council by a majority of 1 vote, the respondent Frank H. Wilbur was declared elected to the office of third member of the town council by a majority of 14 votes, the respondent George O. Rathbun was declared elected to the office of fourth member of the town council by a majority of 26 votes, and the respondent Manuel F. Williams was declared elected to the office of assessor of taxes for three years by a majority of 15 votes.

The petitioners claim that the town council, in making its official count, refused to count in favor of the petitioners certain ballots "in each instance approximately 26 ballots," which were legally cast at said election in favor of the petitioners. It appeared at the hearing upon this petition that said town council did refuse to count certain ballots cast at said election in favor of the petitioners, on the ground that the elector casting each of said ballots had placed a mark upon his ballot by which it might be afterwards identified as the one voted by him. The said town council did not mark as "defective" the said ballots so rejected by them, nor did they separate said ballots from the others cast at said election, but placed all the ballots cast in each voting district in the town in separate sealed packages. It is therefore impossible at this time to determine with exactness the number of ballots so rejected, or to identify them, so that the court may scrutinize the so-called distinguishing marks, which said town council determined that the voters had placed upon these ballots. In the circumstances of the matter, we consider the action of the town council as most reprehensible in thus mingling the ballots which were counted with those rejected, and placing this obstacle in the way of a review of their action by the court. The petitioners have offered in evidence these scaled packages, and have requested the court to open the packages and recount the votes cast at said town election. We cannot do that in this proceeding. By the allegations of their petition and by their testimony before us the petitioners contest the...