Heald v. Payson

• Decision Date: 06 January 1913
• Citation: 85 A. 576,110 Me. 204
• Parties: HEALD v. PAYSON et al. BENNER v. SAME.
• Court: Maine Supreme Court

85 A. 576

110 Me. 204

HEALD

v. PAYSON et al.

BENNER

v. SAME.

Supreme Judicial Court of Maine.

Jan. 6, 1913.

Report from Supreme Judicial Court Knox County.

Petition by Edwin O. Heald for a writ of mandamus against Clarence D. Payson and others to correct the record of the votes cast in the primary election. The peremptory writ was awarded, and respondent excepted. Petition by Edward M. Benner to oust Clarence D. Payson from the office of register of probate. On report Exceptions dismissed, and petition dismissed.

Argued before WHITEHOUSE, C. J., and SAVAGE, CORNISH, KING, and BIRD, JJ.

R. I. Thompson, of Rockland, for petitioner Heald. M. A. Johnson, of Rockland, for petitioner Benner.

Williamson, Burleigh & McLean, of Augusta, for respondents.

SAVAGE, J. The first of these cases is a petition for mandamus to compel the ward clerk of Ward 3 in Rockland to correct the record of the votes cast for the Democratic candidates for register of probate at the primary election held June 17, 1912. The peremptory writ was awarded, and the respondent excepted.

The second case is a petition, as in equity, under R. S. c. 6, § 70, wherein the petitioner claims that he was legally elected to the offlee of register of probate for Knox county, at the September election, 1912. The case comes up on report. The two cases relate, in effect, to the same subject-matter.

The history of the case, and the contentions of the parties, briefly stated, are these: Heald and Payson were both candidates for the nomination of register of probate in Knox county at the primary election in June, 1912. The names of both were on the Democratic official ballot On the face of the returns throughout the county it appeared that Payson had been nominated. Heald claimed that there was an error in the record of the votes cast in Ward 3, Rockland, and in the returns thereof, which, if corrected according to the fact would show that he had received a majority of the votes cast, and was therefore legally nominated. Heald brought a petition for mandamus to compel the ward clerk to correct the record and return. The peremptory writ was granted, and the corrections were made. After the writ was granted, as it seems, the exceptions in this case were allowed. It is unnecessary to inquire into the merits of the controversy as presented to the Governor and council. In the end that body decided to place the name of Payson upon the official ballot to be used at the September election. Benner was the Republican candidate for the office of register of probate, whose name appeared upon the same ballot. At the election in September, Payson received a large plurality of the votes over Benner.

Benner's contention is that Heald was lawfully nominated as a candidate for the office of register, and should have been so declared by the Governor and council; that Heald's name, instead of Payson's, should have been placed upon the official ballot for the September election; that the placing of Payson's name upon the ballot was unlawful; and that, therefore, all ballots cast for Payson are to be deemed null, and to be entirely disregarded, and not to be counted for any purpose. Upon that view of the case, the petitioner, Benner, claims that he received a plurality of all the votes that can legally be regarded and counted, and that he is entitled to judgment for the office.

We do not agree with the conclusion. Whatever may be said in regard to Payson's nomination, it is patent that Benner was not elected. It is fundamental that minorities cannot elect or rule. By the overwhelming weight of authority in this country, a candidate receiving less than a plurality of the votes cast is not elected, even if the opposing candidate receiving a plurality of the votes is ineligible. The votes cast for an ineligible candidate are at least so far effectual as to prevent the election of a candidate who received a less number of votes. Of the many authorities sustaining this...