McGann v. Board of Elections

• Decision Date: 01 January 1957
• Docket Number: No. 1195,1195
• Citation: 129 A.2d 341,85 R.I. 223
• Parties: John H. McGANN v. BOARD OF ELECTIONS et al. M. P. . Feb. 13 as of
• Court: Rhode Island Supreme Court

Page 341

129 A.2d 341

85 R.I. 223

John H. McGANN v. BOARD OF ELECTIONS et al.

M. P. No. 1195.

Supreme Court of Rhode Island.

Feb. 13 as of Jan. 1, 1957.

John C. Burke, Newport, Daniel J. Murray, Providence, for petitioner.

Stephen F. Achille, Providence, for respondent Board of Elections.

Coleman B. Zimmerman, Alfred H. Joslin, Thomas H. Needham, Providence, Ray H. Durfee, Newport, Hinckley, Allen, Salisbury & Parsons, Tillinghast, Collins & Tanner, Albert A. Nutini, Harold H. Winsten, Providence, for intervenors.

PAOLINGO, Justice.

This is a petition for certiorari to review and quash the record of the state board of elections declaring Alexander G. Teitz elected representative in the general assembly from the third representative district of the city of Newport at the general election held on November 6, 1956.

After the petition was filed Alexander G. Teitz, hereinafter referred to as the intervenor, requested an opportunity to be heard before we issued the writ. However, an examination of the allegations of the petition, which was sworn to, made it manifest that the legal and constitutional issues raised were so substantial that we were constrained to issue the writ forthwith. However, in order to give the intervenor an opportunity to be heard, as he had requested, we departed from our regular practice in such cases and included only a temporary restraining order and after notice to him assigned the case specially for a hearing thereon. At such hearing, however, neither he nor his counsel appeared and we thereupon continued the restraining order in effect until the merits of the petition were determined.

The respondent board, in compliance with the writ of certiorari, made due return of its records pertaining to the election in question. Thereafter the intervenor filed a motion to intervene and to take over the defense to the petition. In open court the respondent board by its counsel consented thereto and thereupon we granted the motion.

The intervenor however did not file any answer or plea to the petition for certiorari. Therefore the truth of the facts alleged therein are undisputed. But he did file a motion to dismiss such petition on the ground that this court has no jurisdiction over the subject matter thereof. The cause was thereupon set down for hearing to a day certain on both the motion to dismiss and on the merits of the petition.

Before considering the motion to dismiss, we shall state briefly the undisputed facts as they appear in the record of the instant case. A biennial general election was held in Rhode Island on Tuesday, November 6, 1956, in pursuance of the provisions of article XVI of amendments to the constitution of this state. Section 1 of said article provides: 'The governor, lieutenant-governor, secretary of state, attorney-general, general treasurer, and senators and representatives in the general assembly, shall be elected at town, ward and district meetings on the Tuesday next after the first Monday in November, biennially, commencing A.D. 1912 * * *.' (Italics ours.)

At the general election on November 6, 1956 the petitioner was the Democratic candidate for representative in the general assembly from the third representative district of the city of Newport, and the intervenor was the Republican candidate for said office.

On election day petitioner received on the voting machines in the polling places throughout said third representative district 1,407 votes and the intervenor received 1,381 votes. In addition thereto each received a certain number of votes cast by members of the armed forces and the merchant marine of the United States in active service and absent from the state under article XXII of amendments to the constitution. None of such votes is in dispute and 29 of them were counted for the petitioner and 45 for the intervenor. Therefore the total uncontested votes for each candidate then stood as follows: 1,436 for petitioner and 1,426 for the intervenor. On the basis of these admittedly valid votes petitioner had a clear majority of 10 votes and if there were no other votes legally cast by qualified electors the board should have declared petitioner elected.

The procedure adopted by the board was substantially as follows. It first tabulated the state election returns of the votes cast on election day on the voting machines. It next proceeded to count certain ballots cast by electors absent from the state and hereinafter referred to as civilian absentee voters. Then it proceeded to count certain other ballots cast by electors described in article XXIII of amendments to our constitution as electors otherwise qualified 'who, by reason of old age, physical disability, illness or for other physical infirmities' were unable to vote in person although within the state. These will be referred to herein as shut-ins. The final step in the process was the counting of the war ballots, so called, which were cast outside the state by members of the armed forces and merchant marine by virtue of article XXII of amendments to our constitution. These war ballots are not in dispute here.

Before the count of all classes of ballots was finally completed by the board and prior to the declaration of the result of such count, petitioner challenged all of the civilian absentee and shut-in ballots on the ground that they were unconstitutional. He accordingly objected to the counting of any of such ballots by the board in the tabulation of the votes for the aforesaid candidates and requested that none of said votes be considered or counted by the board in arriving at the result of said election. At the same time the petitioner requested the board to segregate and mark for identification the inner envelopes, which contained the ballots cast by the civilian absentee and shut-in voters at said election. These envelopes by their color and by the jurat or official acknowledgment carried on the face thereof their own identification and separation as to the time and place of voting. The same request was made as to the outer envelopes and further as to all civilian absentee and shut-in ballots cast in said election. In this last respect, as will appear later in this opinion, petitioner did more than was required of him in order to raise the constitutional and jurisdictional issues here involved.

The petitioner protested before the board that it should not count any of such civilian absentee or shut-in ballots on the ground that article XXIII of amendments was not self-executing; that there was no valid legislation implementing it so as to validate the votes of these two classes of electors; and further that certain attempted amendatory legislation under which the ballots had been issued to said civilian absentees and shut-ins was unconstitutional. The board, however, in denying petitioner's motion that said civilian absentee and shut-in ballots be not counted stated that they had no authority or jurisdiction to consider and determine constitutional questions. They took the view that it was their duty to carry out the literal language of the law as purportedly amended and to count all such ballots, unless and until this court declared those statutes and votes to be unconstitutional.

The board thereupon proceeded to count and tabulate all the civilian absentee and shut-in ballots. Some of these, as clearly shown on the face of the inner envelopes in which the ballots were contained, were cast on election day and admittedly others showed they were cast before election day. By counting all such ballots, regardless of whether they were voted on or before election day, the board determined that the total votes cast for each candidate then stood as follows: 1,490 votes for petitioner and 1,561 votes for the intervenor, thus showing an apparent majority of 71 votes for the intervenor. On that basis the board declared the intervenor elected.

The petitioner thereupon promptly filed the instant petition and as stated sought and received a stay of the issuance by the board of a certificate of election to the intervenor until this court could determine the question of constitutional law, on which depended not only the validity of the civilian absentee and shut-in ballots but also the jurisdiction of the board to count them. Because of the importance of the issue involved we peremptorily assigned the case for a special hearing on the earliest possible date consistent with the right of counsel to make reasonable preparation.

The intervenor as stated has filed a motion to dismiss the petition on the ground that this court has no jurisdiction over the subject matter of the petition, or, in the alternative, if it has jurisdiction it ought not, in the special circumstances of this case, exercise its power. He bases this contention entirely on the provisions of article IV, sec. 6, of our state constitution which provides in part: 'Each house shall be the judge of the elections and qualifications of its members * * *.' It is true that in our system of government pursuant to the above constitutional amendment each house of the general assembly is the final judge of the elections and qualifications of its members. However, in the instant case we are not concerned with the ultimate issue of the seating or not seating of the petitioner or the intervenor. Nor are we called upon to decide the power of either branch of the general assembly in that regard.

On the contrary we are confronted with a fundamental question of constitutional law which was raised on the record before the board completed the count and in this petition. In both places petitioner expressly challenged the constitutional right of the civilian absentee and shut-in electors to vote at all and also the jurisdiction of the respondent board to count any of the ballots cast by such classes of electors.

Consequently the issues thus raised on the record present questions of constitutional and fundamental law and are therefore within...