Hurlbut v. Lemelin

• Decision Date: 10 May 1967
• Citation: 155 Conn. 68,230 A.2d 36
• Court: Connecticut Supreme Court
• Parties: Elmer B. HURLBUT v. J. Arthur LEMELIN, Sr., et al.

Page 36

230 A.2d 36

155 Conn. 68

Elmer B. HURLBUT v. J. Arthur LEMELIN, Sr., et al.

Supreme Court of Connecticut.

May 10, 1967.

Alexander A. Goldfarb, Hartford, for appellant (named defendant).

Carl W. Nielsen, Hartford, with whom were Hadleigh H. Howd, Thomas C. White, Winsted, and Nicholas P. Cardwell, for appellees (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

RYAN, Associate Justice.

On October 4, 1965, an election of town officers was held in the town of Winchester. Among the officers to be elected were seven members of the board of selectmen. Each elector was entitled to vote for five persons for selectmen. The plaitniff, Elmer B. Hurlbut, a Republican, and the defendant J. Arthur Lemelin, Sr., a Democrat, were candidates of their respective parties for the office of selectman. At the conclusion of the election, the moderator announced that Hurlbut had received 1550 votes and Lemelin, 1548 votes and that Hurlbut was duly elected as the seventh selectman of the town. On October 9, 1965, a recanvass of the vote was made pursuant to § 9-311a of the General Statutes (Rev. to 1964). As the result of this recount, the moderator declared that Lemelin had received 1540 votes and Hurlbut, 1537 votes and that Lemelin was elected by a majority of three votes over Hurlbut. On October 13, 1965, Hurlbut presented a petition to a judge of the Superior Court, under § 9-328 of the General Statutes (Rev. to 1964), in which he set out claimed errors of the moderator and claimed errors in the count. The judge, on that day, issued an order to show cause requiring Lemelin and Thomas H. Whyte, the moderator of the election, to appear before him in his chambers in the Superior Court building in Hartford on October 18, 1965, and directed the sheriff to make service on Lemelin and Whyte on or before October 13, 1965. Lemelin then filed a plea in abatement and a motion to erase, making identical claims in each pleading to the effect that a judge of the Superior Court was without jurisdiction to entertain the petition. The judge overruled the plea in abatement, denied the motion to erase, heard the parties on the merits, and rendered judgment that the election had resulted in a tie vote with Hurlbut and Lemelin each receiving 1548 votes. From this decision Lemelin has appealed to this court.

The numerous assignments of error have been reduced in Lemelin's brief to two. In his first assignment of error, Lemelin urges that the trial judge erred in taking jurisdiction of the petition made pursuant to § 9-328 of the General Statutes (Rev. to 1964) and involving a review of the rulings of the moderator rendered on a recanvass of the vote held pursuant to § 9-311a of the General Statutes (Rev. to 1964). Lemelin claims that § 9-328 confers the right of judicial appeal from the rulings of a moderator at an election, but not from his rulings at the recanvass performed after the election under the provisions of § 9-311a. ¹ He urges that the election was held on October 4, 1965, and the recanvass on October 9, 1965; that Hurlbut made no claim of aggrievement as to any ruling of the moderator at the election, but only as to his rulings on the recanvass on October 9; and that § 9-328 does not confer jurisdiction on a judge of the Superior Court under these circumstances.

Section 9-328 provides, in part, as follows: 'Any person claiming to have been elected to any municipal office * * * but not to have been declared so elected, or any candidate for any such office claiming to have been aggrieved by any ruling of the moderator at an election for any such office, or any such candidate claiming that there has been a mistake in the count of votes cast for any such office at any such election, may, within ten days after the date of the election, bring his complaint to any judge of the superior court, in which he shall set out the claimed errors of the moderator or the claimed errors in the count.' It is a cardinal rule of construction that statutes are to be construed so that they carry out the intent of the legislature. This intent is to be ascertained from the language of the statute itself, if the language is plain and unambiguous. Landry v. Personnel Appeal Board, 138 Conn. 445, 447, 86 A.2d 70. Where, as in the present case, the legislative intent is clear, and the language used to express it is unambiguous, there is no room for statutory construction. State ex rel. Cooley v. Kegley, 143 Conn. 679, 683, 124 A.2d 898; State ex rel. Rourke v. Barbieri, 139 Conn. 203, 207, 91 A.2d 773. Section 9-328 provides a right of judicial determination in three different situations: (1) When a person claims to have been elected to a municipal office but has not been declared so elected; (2) where a candidate claims to be aggrieved by any ruling of the moderator at an election for such office and (3) when a candidate claims that there has been a mistake in the count of votes cast for the office at the election. In his petition, Hurlbut alleged that he was originally declared elected by the moderator on October 4, 1965; that thereafter, by virtue of § 9-311a, there was a recanvass of the votes cast at the election; that certain absentee ballots properly cast for him were disallowed; and that, if they had been allowed, he would have been duly elected a selectman instead of Lemelin being declared elected.

Lemelin claims that the recanvass procedure provided in § 9-311a is not an election, and that it was not the intention of the legislature to confer the right of judicial appeal from any determination of the moderator at a recanvass. Lemelin overlooks the last sentence of § 9-311a which provides as follows: 'Nothing in this section shall preclude the right to judicial proceedings on behalf of such defeated candidate under any provision of chapter 149.' Section 9-328 is included in chapter 149 of the General Statutes. There is a presumption that the legislature, in enacting a law, did so in view of existing relevant statutes and intended it to be read with them so as to make one consistent body of law. State v. Jordan, 142 Conn. 375, 378, 114 A.2d 694; Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 657, 103 A.2d 535; Coombs v. Darling, 116 Conn. 643, 646, 166 A. 70. This is particularly so where, as here, at the same session of the legislature in 1963, § 9-311a was enacted and § 9-328 was amended. There is nothing in either statute which requires a construction that, when the provisions of § 9-311a are invoked, any candidate is precluded from obtaining a judicial review as provided in § 9-328. The trial judge was correct in concluding that he had jurisdiction to hear the case, in overruling the plea in abatement, and in denying the motion to erase.

In his remaining assignment of error, Lemelin claims that the trial judge erred in his rulings on two absentee ballots. One of these was counted in favor of Hurlbut and the other was rejected as against Lemelin. In the latter ballot, the elector, in Form I, indicated his desire to vote a straight Democratic ticket and, in Form III, voted for one Democratic candidate for the office of selectman and for three other Democrats for various other offices. Lemelin's name was not listed on the ballot. The trial judge ruled that this ballot could not be counted for Lemelin. Lemelin urges that, since the elector indicated in Form I that he voted a straight Democratic ticket and since Lemelin was a candidate of the Democratic party for the office of selectman, this was a vote for all Democratic candidates including Lemelin. In accrdance with § 9-136 of the General Statutes (Rev. to 1964), each absentee ballot contains the following instructions: 'If you wish to vote a...