Coughlin v. McElroy

• Decision Date: 12 July 1899
• Citation: 43 A. 854,72 Conn. 99
• Court: Connecticut Supreme Court
• Parties: COUGHLIN v. McELROY.

43 A. 854

72 Conn. 99

COUGHLIN

v. McELROY.

Supreme Court of Errors of Connecticut.

July 12, 1899.

Appeal from superior court, Fairfield county; Ralph Wheeler, Judge.

Petition by Patrick Coughlin against James H. McElroy to determine contested claims as to election of tax collector of city of Bridgeport. There was a Judgment for the respondent, and petitioner appeals. Reversed.

As the result of a recount of the votes in all the voting districts of the city of Bridgeport, except the Fifth and Ninth, the ballot boxes of which two districts sufficient cause was not found for reopening, and by taking in those two districts the results as disclosed by the counters' certificates, it is found by the trial judge that the petitioner received 5,031, and the respondent 5,053, votes for the office of collector of the city of Bridgeport. The following further facts were found: "(13) At said election the petitioner's name appeared on the regular Democratic ticket as a candidate for collector, and the respondent's name appeared on the regular Republican ticket as the candidate for said office. (14) Not included in the above 5,031 votes counted for the petitioner were 38 ballots having characteristics as follows: (a) There was one ballot bearing the party name 'Democratic,' on which the name of James H. McElroy was pasted over the name Patrick Coughlin, printed on the ballot, but the name James H. McElroy had been erased with ink or pencil, and the name Patrick Coughlin had been written at the right, on the ballot, opposite the name of James H. McElroy on the paster, and of the name Patrick Coughlin, printed on the ballot, (b) There were four ballots bearing the party name 'Democratic,' on which was a paster bearing the name Patrick Coughlin, which paster was pasted over another paster bearing the name James H. McElroy, and with both such pasters pasted over the name Patrick Coughlin, originally printed on the ballot, (c) There were several ballots bearing the name 'Democratic,' each with a paster bearing the name Patrick Coughlin, which paster was pasted over another paster or part of another paster, and with both such pasters or parts of pasters pasted over the name Patrick Coughlin, printed upon the ballot. In these instances it was impossible to determine the name on the intermediate paster or part of a paster, (d) There were several ballots bearing the name 'Democratic,' each with a single paster bearing the name Patrick Coughlin, which paster was pasted over the name Patrick Coughlin, printed upon the ballot. On one or two of these there were indications that a paster which had been placed over the name Patrick Coughlih had been pulled off, and the paster for Patrick Coughlin then pasted over the name Patrick Coughlin, printed on the ballot. (15) Of the 38 ballots thus described, five were cast in the First district, nine in the Second district, three in the Fourth district, two in the Sixth district, one in the Seventh district, two in the Eighth district, four in the Tenth district three in the Eleventh district, and nine in the Twelfth district. (16) Not included in the 5,053 votes counted for the respondent was one ballot bearing the party name 'Republican,' with a single paster bearing the name James H. McElroy, which paster was pasted over the name James H. McElroy, printed on said ballot. (17) After the Democratic party had nominated candidates for city, town, and school offices to be voted for at said election, the respondent's political agent, with the knowledge and approval of the respondent, caused to be printed on 7,000 official ballots the name 'Democratic,' the titles of the city offices to be filled at the election, and the names of the Democratic candidate therefor. Said agent of the respondent also printed an equal number of similar town tickets and of tickets for school offices, bearing the name 'Democratic' and the names of the Democratic candidates for the several offices thereon. Said agent, a few days before said election, mailed an envelope containing a city ticket, a town ticket, and ticket for school officers, so printed by him, to every supposed Democratic voter in the city. On all of the said city rickets so printed by him, before mailing the same, he pasted over the name of the petitioner, under the word 'Collector,' a paster containing the name James H. McElroy. In each envelope containing a set of said tickets he inclosed a circular, which circular stated that a full set of Democratic tickets, with his name pasted over the name of the petitioner for collector on the city ticket, was inclosed, and requested the voter to vote for him, if he desired to do so, using the tickets. There was nothing in the circular intended or calculated to deceive voters. (18) The ballots described in paragraphs 14 and 10 of this finding were held to be void by me, in view of the provisions of the first and twelfth sections of chapter 213 of the Public Acts of 1897, and not for the reason that they bore distinguishing marks. By means of such pasting it might be possible that ballots would indicate that a certain number of persons had by an arrangement voted them. I do not find, however, that there was any intent on the part of any one to make use of distinguishing marks on the ballots for such purpose or any purpose. The facts set forth in paragraph 17 furnish a reasonable and probable explanation of the casting of the ballots described in paragraph 14 of this finding. (19) Not included in the above 5,031 votes counted for the petitioner were 11 ballots cast in the various districts under the following circumstances: One Joseph P. Coughlin, at and prior to the time of said election, was a resident of Bridgeport and eligible to office. He then was a candidate for selectman on the Democratic town ticket. He had not been nominated for the office of collector by any party. No other person than the petitioner, with the surname of Coughlin, was a candidate of any party at said election for the office of collector. (a) On ten Republican city tickets a paster bearing the name Joseph P. Coughlin was pasted over the name Patrick Coughlin. (20) Included in the above 5,031 votes counted for the petitioner were 3 Democratic city ballots found in the ballot box of the Second district, and described as follows: Over the name of a certain candidate for alderman, on each of said tickets, was a paster bearing the name of Henry P. Greenman, a candidate for alderman on the Republican ticket. The name of Henry P. Greenman was then erased by a pen, and the name of another candidate was written in its place by a pen. (21) Included in the above 5,031 votes counted for the petitioner were 7 Democratic city ballots, described as follows: The names of three of the four candidates for sheriff were erased, leaving the name of one Fenelon only, as a candidate for sheriff. All of the names of the ten candidates for aldermen were erased, except the name of one Welch, who was at the head of the list. The erasure was done by a heavy pencil mark drawn from left to right through each name, and then a heavy pencil mark was drawn nearly perpendicularly through the names of the candidates for aldermen thus erased. The lines all seemed to have been made with the same pencil and by the same hand. (22) The petitioner claimed that the votes described in paragraphs 14 and 19 should be counted for the petitioner, but I overruled said claim, and the petitioner took an exception to such ruling. (23) The respondent claimed that the votes described in paragraphs 20 and 21 should not be counted for the petitioner, but I overruled said claim, and the respondent duly excepted."

The reasons of appeal are as follows: (1) Because the judge erred in holding that the ballots described in paragraph 14 of the finding were void, in view of the provisions of the first and twelfth sections of chapter 213 of the Public Acts of 1897; (2) and in overruling the claim of the petitioner that the votes described in paragraphs 14 and 19 of the finding should be counted for the petitioner; (3) and in deciding that the respondent received a plurality of the votes cast for said office at said election and was elected; (4) and in rendering judgment for the respondent.

Daniel Davenport, for appellant.

Alfred B. Beers and George P. Carroll, for appellee.

HALL, J. (after stating the facts). The petitioner was a candidate upon the Democratic, and the respondent upon the Republican, ticket for the office of collector of the city of Bridgeport at the town and city election held on the first Monday of April, 1899. The respondent was declared elected by the presiding officer of the meeting. Upon the petitioner's application to a judge of the superior court for a recount of the ballots, under section 58 of the General Statutes, it was found that the respondent had received 5,053, and the petitioner 5,031 votes, and that the respondent was therefore elected by a plurality of 22. In reaching this result, 38 ballots cast for the...