Grelle v. Pinney

• Decision Date: 04 February 1893
• Citation: 26 A. 1106,62 Conn. 478
• Court: Connecticut Supreme Court
• Parties: GRELLE v. PINNEY et al.

26 A. 1106

62 Conn. 478

GRELLE

v. PINNEY et al.

Supreme Court of Errors of Connecticut.

Feb. 4, 1893.

Appeal from superior court, New Haven county; Thayer, Judge.

Petition by Moritz Grelle against Edgar W. Pinney and George A. Houghton to contest the election of defendants to the office of selectmen of the town of Waterbury. From the judgment rendered, petitioner and defendant Bough ton appeal. Reversed in part.

J. O'Neill, for plaintiff.

S. W. Kellogg, G. E. Terry, and J. P. Kellogg, for respondents.

PRENTICE, J. The territorial limits of the city of Waterbury are not coextensive with those of the town of Waterbury. The city is divided into four wards; the town, into four voting districts. Each town voting district contains all the territory of a similarly numbered city ward, and other territory lying without the city limits. On the first Monday of October, 1892, pursuant to statute, there was held the annual town meeting for the choice of town officers. On the same day, pursuant to the city charter, occurred the annual city election for the choice of city officers. The two elections were entirely independent of each other, but for some cause— presumably, convenience and economy— the meetings were so warned and held that they were in progress at the same places, and at the same time. The effort to carry on in one place two meetings, in which different persons were entitled to participate, encountered difficulties, by reason of the provisions of the secret ballot law, requiring ballots to be placed in envelopes, and forbidding the giving of more than one envelope to each voter. In this dilemma the authorities, instead of avoiding the difficulty by providing separate machinery for each election, resorted to the expedient of providing two ballot boxes at each polling place. One was marked, "Town and City Box." In this all entitled to vote for city officers were permitted to cast their ballots. They were given one envelope, and in this were placed both the city and town tickets, which were thus voted in this box. The second box was marked, "Town Box." In this those voters of the town who were not entitled to vote at the city election were permitted to cast their ballots. It thus happened that ballots for town officers were in each voting district deposited in two boxes. One box contained town ballots only; the other, town ballots placed in envelopes with city ballots. Thus the two elections proceeded side by side until the polls closed. In each voting district, counters for the town election were chosen and sworn. So, also, in each ward, counters for the city election were chosen and sworn. They were entirely different persons. In each polling place, two tables were provided. The city and town box was opened, and its contents placed upon one table, around which sat the city counters. The town box was opened, and its contents placed upon the other table, around which sat the town counters. The town counters opened the envelopes contained in the town box, took out the ballots, and proceeded to count them. The city counters opened the envelopes contained in the town and city box, removed the ballots therein contained, separated into different piles the ballots for city officers and those for town officers, and proceeded to count the former. The town ballots contained in this box, having been thus separated from the city ballots, were taken by the town counters, who, believing them to be lawful ballots, entitled to be counted for all the town officers named thereon, added them to the ballots which had been cast in the town box, and counted them together. The result of the election was declared as shown by this count.

At the town election the petitioner, Grelle, and one McElligott, were the known candidates of one party for the office of selectman, Grelle's name standing first upon the ticket. The respondents, Pinney and Bough ton, were the known candidates of another party for that office, Pinney's name standing first upon the ticket. The result of the election, as declared as aforesaid, was that Pinney, Boughton, and McElligott were elected, receiving, respectively, 2,351, 2,236, and 1,988 votes, and that Pinney was elected first selectman. Grelle was declared to have received 1,868 votes, and not to have been elected. In the present proceeding, Grelle alleges that certain votes were improperly counted for each of the respondents, and asks that he be declared elected, not only a selectman, but first selectman, of the town.

As against Pinney, the petitioner's claim is that he participated in the count of the town ballots in the Third voting district. The action of Pinney, upon which this claim is made, is the following: After the envelopes had been placed upon the tables, as before described, a machine designed to facilitate the process of opening the envelopes was produced. It was so constructed as to cut a narrow strip from one side of the envelope. The counters did not understand its operation. Pinney, who, as first selectman for the year then ending, had purchased it, and understood its operation, chanced to be present. He was appealed to by the city counters to illustrate its operation. He complied, and by means of the machine cut off the sides of some of the envelopes contained in the town and city box. Hedid nothing more. The judge to whom the petition was brought held that in so doing he did not participate in the count, and declined to throw out any ballots cast for him. In this, we think, he committed no error. The thoughtless act of Pinney certainly comes close to the line of those prescribed. His example is one not to be commended, but we think that, under all the circumstances, a reasonable application of the statute, whose meaning we shall have occasion to more fully consider later, would not justify an infliction of the penalty which the law has provided for those who have the interest and opportunity to thwart the public will.

The most serious contention in the case relates to Boughton's right to the office to which he was declared chosen. He was selected and acted as one of the city election counters in the Fourth ward. After the envelopes contained in the town and city box had been deposited upon the table, he, at the suggestion of some one of the counters, counted the whole number of envelopes in the box, and selected therefrom, for rejection, such as were unsealed. Of envelopes so selected by him, at least 10 were rejected as unsealed. This done, he, together with his fellow city counters, proceeded to open the envelopes, and count the city ballots, in the manner before recited. The town counters likewise proceeded with their count, as recited. Boughton never came in contact with the town box, or with the ballots cast therein. Upon this state of facts, the question arises whether he took part in the count of the town vote. The judge holds that he did. This ruling was clearly correct. Boughton did not, it is true, participate in the particular and immediate manipulation of the ballots which was designed to arrive at numerical results, but he did participate in those manipulations of the ballots which were preliminary to the numerical calculations. He selected envelopes for rejection. He removed ballots from envelopes. He assorted ballots. These acts were necessary parts of the general work of the counters. They were as appropriate to the act of counting, and as essential to the process of arriving at a determination of the contents of the box, as the subsequent manipulations which were accompanied by the mental process of enumeration. What is perhaps still more significant is that these acts afforded Boughton every opportunity to commit a fraud upon the ballots, and thereby to influence the result which they recorded. The object of the statute prescribing a penalty for a candidate taking part in the count is apparent. Its object is to prevent fraud, by removing opportunity for its commission. If its language is to be construed as embracing only those acts of a counter...