Mallett v. Plumb

• Decision Date: 20 April 1891
• Citation: 22 A. 772,60 Conn. 352
• Court: Connecticut Supreme Court
• Parties: MALLETT v. PLUMB.

22 A. 772

60 Conn. 352

MALLETT

v. PLUMB.

Supreme Court of Errors of Connecticut.

April 20, 1891.

Appeal from superior court, New Haven and Fairfield counties; Phelps, Judge.

Petition of Orville S. Mallett for a recounting of the ballots in an election for selectman. Judgment rendered for plaintiff. Defendant appeals. Reversed.

S. Judson, (with whom was C. S. Canfield,) for appellant.

R. V. Ambler, for appellee.

TORRANCE, J. At the annual town meeting held in Trumbull in October, 1890, Plumb, the defendant, was declared elected to the office of first selectman. Mallett, the plaintiff, thereupon brought a petition under the statute before a judge of the superior court, alleging that he, (Mallett,) and not Plumb, had been elected to that office, and praying that it might be so adjudged and declared. In the first four paragraphs of his petition the plaintiff alleged, in substance, that at said election he and one Nichols were the candidates for the office of selectman upon the ballots known as Democratic ballots, and that Plumb and one French were the candidates for that office upon the ballots known as Republican ballots; that the plaintiff was first named for that office upon the Democratic ballots, and Plumb was first named therefor on the Republican ballots; that there were 98 ballots counted for Mallett, 105 for Nichols, 101 for Plumb, and 81 for French; that there were therefore cast for selectmen at said election 105 of the Democratic ballots, and only 101 of the Republican ballots; and that upon the plurality of the ballots so cast for selectmen, or any of them, the petitioner was first named. And upon this ground he claimed the office of first selectman, under section 48 of the General Statutes. The defendant demurred to these allegations, on the ground that, upon the facts alleged, the plaintiff was not the person first named upon a plurality of the ballots, within the meaning and intent of the law. The judge overruled the demurrer, and this is assigned as one of the errors upon this appeal. The plaintiff further alleged, in substance, that certain ballots were cast for the plaintiff for said office at said election which should have been counted for him, but were not; and that certain ballots cast for the defendant, upon which the defendant's name did not stand first, were counted for him as if his name stood first thereon. The defendant in his answer alleged that the ballot-box used at the election, and to which, after the election, the ballots had been returned, had not been locked, sealed, deposited, and kept as the law requires and on this ground he objected to the opening of the box and the counting of the ballots. The judge heard the parties with their evidence upon this part of the case, and found, in substance, the following facts: When produced in court, the ballot-box was locked, but not sealed. There was an extra slide under the lid of the box, which covered the aperture in the lid, and when the box was locked the slide could not be moved, and nothing could be put in or taken from the box without unlocking it or breaking it open. The ballots were counted and returned to the box by the counters out of the presence of the moderator. The box was then brought into the polling place, and delivered to the moderator, who locked and delivered the same, with the key, to the town-clerk, who was there present. Thereafter the moderator had no knowledge or means of knowing whether the box or ballots had been in any way disturbed or tampered with. The town-clerk put the box that night in the town-clerk's office, and next day deposited it in an up-stairs room, which was not kept locked, and placed the key to the box in a drawer, to which no one but himself and wife had access. The box, ballots, and key remained in their respective places until produced in court. The members of the town-clerk's family, his hired help, visitors at his house, and the public generally had access to said room, if occasion required. No evidence was introduced to show that the box or the ballots therein had been actually molested or in any way disturbed. And the judge found, from the foregoing facts, that the ballots found in the box were the same as were cast at said election, "and that neither the box nor the ballots had been in any manner tampered with or disturbed." The judge overruled the defendant's objection, and after all the other evidence in the case had been heard, and the arguments made, ordered the box to be opened, and the ballots counted by a committee. The action of the judge in ordering the box to be opened, and receiving the result of the recount as evidence, is one of the errors assigned on this appeal.

The plaintiff's name is Orville S. Mallett, and it appeared upon the recount that 97 ballots were cast for Orville S. Mallett, 1 ballot for Orville Mallett, and 1 for C. J. Mallett. Upon this part of the case the finding is as follows: "It appeared that there was no other person residing in said lown by the name of O. S. Mallett, or by the name of Orville Mallett, or by any similar name, but no evidence was introduced to show specifically whether there was any person in said town or upon the registry list by the name of C. J. Mallett, nor to show whether any of such votes had been rejected by the counters or presiding officer. I find upon the foregoing facts, and from said ballots, that the ballots cast for Orville Mallett and C. J. Mallett were intended by the voters thereof to be cast for the petitioner as first selectman." One of the reasons of appeal is based upon this ruling, and is as follows: "Said judge erred in holding that said ballots cast for C. J. Mallett and Orville Mallett should be counted forthe petitioner." The record, however, does not disclose that the defendant made any objection on this part of the case, except to the admission of evidence as to "whether there was any person residing in said town by said names aforesaid." This evidence in such a case was clearly admissible, if the opening of the box and the recount were legal. Whether the evidence was objected to on this general ground, or on the specific ground that in such cases the court could not make inquiries of the nature of those objected to, is perhaps not quite clear. On the facts found, the ruling in question was right, and the specific objection was not well taken. Upon opening the ballot-box, and recounting the votes, it appeared that Mallett had 99 votes, and Plumb 98 votes, for the office of first selectman, and that Nichols had 105 votes for selectman. I, then, the judge did not err in ordering the box to be opened, and in accepting the report of the committee appointed to make the recount, it would appear that Mallett was elected to the office of first selectman, and the question raised by the demurrer to the first four paragraphs of the petition would he of no importance in the case at bar. The defendant, however, claims that the judge erred in ordering the box to be opened, and in accepting the report and result of the recount. The question, then, is whether these claims of the defendant are well founded.

One of the claims of the defendant on this part of the case is that, unless the provisions of section 51 of the General Statutes have been fully complied with, the evidence was not admissible for any purpose. That section provides as follows: "The ballots cast at any town-meeting for the election of town officers shall, immediately after they have been counted, be returned by the presiding officer to the ballot-box or boxes, which shall be locked, sealed, and deposited by him in the town-clerk's office, so that the same cannot be opened without his knowledge; and the clerk in whose office such box or boxes shall be deposited shall carefully preserve the same with the seal unbroken for six months after such meeting." The finding upon this part of the case clearly shows that in the case at bar there was a gross disregard of the statutory provision. The question is, what is the effect of such conduct?...