In re Petitions of Melford B. Bibens
| Decision Date | 09 October 1948 |
| Citation | 61 A.2d 598,115 Vt. 383 |
| Parties | IN RE PETITIONS OF MELFORD B. BIBENS |
| Court | Vermont Supreme Court |
October Term, 1948.
Elections.
1. The use of the writ of certiorari is confined to the review of final judgments.
2. The proceedings under Sec. 210 of the Vermont Statutes are informal and it is not required that the strict rules of pleading be complied with.
3. The law presumes that all officers entrusted with the duty of keeping public or official papers will perform their duty by keeping them safely.
4. In making an order under Sec. 210 of the Vermont Statutes it is sufficient if the order as made is such as will result in ascertaining the real will of the voters.
5. Construction of a statute which will render it ineffective and a construction which will lead to absurd consequences must always be avoided if possible.
6. Every statute is understood to contain by implication, if it does not by its express terms, all such provisions as are necessary to effectuate its object and to make effective the rights, powers, privileges and jurisdiction that it grants.
7. While there is no express statutory authority for a recount of votes for county officers in a primary election, Sec. 210 of the Vermont Statutes impliedly authorizes it in order to effectuate the object and purpose of the statute.
8. In making a recount of votes under Sec. 210 of the Vermont Statutes, it is not necessary for the judge who orders the recount to personally supervise and direct the recount.
PETITION FOR WRIT OF CERTIORARI and PETITION FOR WRIT OF PROHIBITION. The petitions were heard together on an agreed statement of facts applying to both.
The petition for a writ of certiorari is dismissed without costs. The petition for a writ of prohibition is dismissed without costs. The restraining orders issued against the Honorable Stephen S. Cushing, superior Judge and against George H. Plumb, Esq., Clerk in and for Bennington county are vacated, without costs.
Franklin P. Jones and Christopher A. Webber for the petitioner.
Gibson, Gibson & Crispe and Reuben Levin for the petitionee.
Present: MOULTON, C. J., BUTTLES, JEFFORDS and CLEARY, JJ. and ADAMS, Supr. J.
Subsequent to the primary election held September 14, 1948, Melford B. Bibens, who was a candidate for the nomination by the Republican party for the office of senator from Bennington county, brought to this Court a petition for a writ of Certiorari and later brought a petition for a writ of Prohibition. These petitions were heard together on an agreed statement of facts which applied to both. In this agreed statement the following material facts appear:
At the election above referred to there were three candidates for the republican nomination for county senator. Bennington county is entitled to only two senators. The result of the election as shown by the official canvass of the votes was as follows: Carleton E. Howe 2647, Melford B. Bibens, 1944, and James B. Gibney 1927. As a result of the canvass George H. Plumb, clerk for Bennington county, issued certificates of nomination to Howe and Bibens. Gibney then made affidavit under the provisions of Sec. 210 of the Vermont Statutes, Revision of 1947, (P. L. § 172) to the Honorable Stephen S. Cushing, a superior judge, to contest the nomination of Bibens. In the affidavit which was signed and sworn to by Gibney various reasons were set forth in support of his claim that a mistake had been made in the count of the votes in the various towns in the county. It is unnecessary to set forth fully these reasons for the claim that a mistake had been made in the count. Among those given was the defective lighting system in the room when and where the Bennington votes were counted which together with the heavy vote cast delayed those counting the votes who became tired and weary and were not willing to adopt the suggestion made by the chairman of the board of civil authority to recheck the ballots which had been counted; in calling the results in Bennington, at least, the checkers used "Bib" for Bibens and "Gib" for Gibney and that this similarity in the names as so called led to a mistake being made; that there were conflicting reports made in three towns as to the number of votes cast for Bibens and Gibney.
Upon receipt of the affidavit Judge Cushing gave notice to Bibens to appear for a hearing in the matter. The hearing was held, Bibens and his attorney being present. Also present was the chairman of the board of civil authority for the town of Bennington, which was one of the towns in which the vote was questioned. Gibney offered to place the chairman on the stand as a witness to prove the affidavit as far as it pertained to the matters set forth therein relating to the town of Bennington. Judge Cushing said that this was unnecessary and in fact no evidence of any kind was introduced. Bibens took part in the hearing and made no objections to lack of service or proper hearing but he did object to the jurisdiction of the judge and power to order a recount, sufficiency of parties and the lack of any allegation of fraud, accident and mistake in the affidavit.
At the time of the hearing the judge made an order, which reads as follows:
"NOW THEREFORE, after a consideration of the pleadings, statements of parties and counsel, I hereby ORDER a recount of the primary ballots cast for the office of State Senator in all towns in Bennington County, to be made by the Board of Civil Authority of each town, said recount to be presided over by the Town Clerks of the respective towns, the recount to be held in the individual towns on or before the 25th day of September 1948, and at said recount a representative of James B. Gibney shall be entitled to be present and a representative of Melford B. Bibens shall be entitled to be present, said representative, if desired, to be designated by the respective parties, and the result of such recount shall be forthwith certified by the TOWN CLERK of each town to the County Clerk within and for the County of Bennington."
This order was duly served on the town clerks of all of the towns. In pursuance of the order all of the towns in the county caused a recount of the votes to be made for the office of state senator and caused their certificates showing the result of the vote on the recount to be sent to the county clerk. The official canvass of the votes on the recount as so certified showed that Howe had received 2651, Bibens 1928 and Gibney 1960. At the recount held in the towns of Bennington and Rupert, Bibens appeared by his representative who took part in the recount and in each instance did not make any objections to it.
After the above order was issued, Bibens brought a petition for a writ of certiorari, setting forth various facts relating to the primary election, the result of the vote for county senators as originally given, the affidavit of Gibney and the order of Judge Cushing. It was stated in the petition that the petitioner believed that the order was erroneous on the following grounds:
"1. That the laws of the State of Vermont and particularly Vermont Statutes, Revision of 1947, do not give jurisdiction to a Superior Judge or Supreme Court Justice to order a recount of the votes in contesting a primary election nomination.
2. That there were no allegations in the Affidavit of the said James B. Gibney to justify the issuing of an order for a recount of the votes.
3. That the affidavit and order for hearing did not bring in the proper parties to make any order on an affidavit to contest a nomination at a primary election.
4. That the order in question was issued without a proper hearing;
5. That no evidence was introduced to show that the ballots in the Towns of Bennington County, or any of them had been preserved carefully, were still available, or had been kept so that such ballots could not be tampered with;
6. That if the Superior Judge had the power and authority to order a recount such recount should have been ordered to be under the supervision and direction of such Superior Judge."
The citation attached to the petition was signed September 24, 1948.
On September 30, 1948, Bibens brought a petition for a writ of prohibition. In this petition the same matters were set forth as in the petition for a writ of certiorari and to which we have already referred. The same grounds for the claim that the order of Judge Cushing is erroneous are set forth in this latter petition as were advanced in the former petition. In addition to what was set forth in the petition for the writ of certiorari the following paragraphs appearing in the petition for a writ of prohibition were included in the agreed statement of facts:
It further appears in the agreed statement of facts that Judge Cushing intended to have a hearing on the first day of October, 1948, in connection with his order for the petitioner to appear on that date, at which time evidence was to be introduced relative to the issues involved.
The order as amended contained in the petition for a writ of...
To continue reading
Request your trial