Meigs v. Theis
| Decision Date | 11 June 1925 |
| Citation | 102 Conn. 579,129 A. 551 |
| Court | Connecticut Supreme Court |
| Parties | MEIGS v. THEIS. |
Appeal from Superior Court, New Haven county; Allyn L. Brown, Judge.
Petition by Clarkson A. Meigs against Clinton A. Theis for recount of ballots in town election, and issuance of certificate as first selectman of town. Judgment for petitioner, and respondent appeals. No error.
Ernest L. Averill, of Branford, for appellant.
Philip Pond, of New Haven, and Arthur W. Marsden, of Madison, for appellee.
At the annual town meeting of the town of Madison, for the election of town officers, there were three sets of candidates for the various offices to be filled, appearing upon the official ballot in three columns under the designation of Republican Democrat, and Independent Republican; position for the latter had been obtained by petition pursuant to statute. The usual blank column was added to the ballot, making four columns in all upon it. The candidates for selectmen appearing in the order named in the Republican column were Clarkson A. Meigs and Austin Adaman; Walter E. Clark and Joseph Schmidt appeared in like order in the Democratic column; and Clinton A. Theis and Vincent Stevens appeared in like order in the Independent Republican column. The moderator of the meeting declared that Meigs, Theis, and Clark had been elected selectmen, and Theis had been elected first selectman.
On October 14, 1924, Meigs brought his petition to Judge Brown, alleging that, at the town meeting in Madison above referred to, he was candidate upon the Republican ticket for the office of first selectman; that the total number of ballots cast as announced by the election officers was 790, of which 12 were rejected by the election officials. The petition proceeds to further allege as follows:
" (3) The counters of the ballots at said election announced that your petitioner had received 384 votes, the largest number of votes cast for any candidate for selectman and one Clinton A. Theis had received 380 votes, and it was claimed by said committee (counters) and the election officials, however, that said Clinton A. Theis had the larger number of votes for first selectman, notwithstanding the fact that your petitioner was named first upon the ticket of the Republican party and the said Clinton A. Theis was named first for selectman upon the ticket of the Independent Republican party and organization, and said election officials announced that said Theis received 380 votes for selectman.
(4) Said counters and the moderator at said election announced that your petitioner for selectman received 384 votes, that Walter E. Clark, named first upon the ticket of the Democratic party for selectman, had 25 votes, and said Theis named first as aforesaid on ticket of said Independent Republican party, had 380 votes, being a total of 789 votes, and being a larger number than the total number of votes cast, less the ballots rejected.
(5) Of the 12 ballots rejected, as aforesaid, at least 9 thereof were improperly and unlawfully rejected, which said ballots so rejected were cast for your petitioner for the office of first selectman, and your petitioner, by a plurality of the votes cast by the electors of the town of Madison at said town meeting, was elected first selectman of said town.
(6) Notwithstanding the foregoing, the moderator of said town meeting declared the said Clinton A. Theis elected first selectman of said town, and the said Theis is undertaking to perform the duties of said office.
(7) No return as by statute provided has been made by the counters and the moderator, at said election, to the town clerk, of the number of ballots cast for each candidate for said office, or of the person elected thereto.
(8) The registrars acting at said election did not, as by statute required, on the following day, file with the town clerk a certificate showing the whole number of names registered, the number checked as voting, and the number not checked thereon."
The petitioner prayed that the foregoing facts be inquired into pursuant to the provisions of the statute, and that the ballot box used at the election be opened and the ballots be recounted, and that the results of the election be determined and certified. Upon this the judge made an order to show cause, returnable October 28, 1924, of which, together with the petition, service was made and return thereof to the judge. Upon the return day the respondent filed a demurrer in the first six paragraphs of which he attacks the petition for indefiniteness of statement and lack of allegation of such mistakes on the part of the election officers as would justify the opening of the ballot box and a recount of the ballots found therein. As further grounds of demurrer, it is alleged:
" (7) That General Statutes, § 282, does not entitle a person elected selectman to seek to establish his title to the office of first selectman; (8) that there is no office of first selectman as distinguished from that of selectman; (9) that the office of selectman is created by the Constitution and as to such office the statutory remedy invoked is unconstitutional as depriving a respondent of the right to a jury trial; (10) that a judge of the Superior Court has no right to count the ballots cast, but only to pass upon the facts alleged in the petition upon which petitioner's claim to election is founded."
This demurrer was overruled by the judge, and afterward the parties were at issue on the complaint and respondent's answer putting in issue the greater part of the allegations of the petition. The judge ordered the box opened and the ballots counted, and heard evidence pertaining to the case, and by his decision found the issues for the petitioner, and granted a certificate of election to him as first selectman. In addition to the introductory facts given above which were undisputed, the judge also found that for all other offices affected by the provision for minority representation the moderator declared persons named on the Democratic ticket elected, although only 25 Democratic tickets, straight and scratched, were cast. No duplicate certificates, as provided by General Statutes, § § 605, 606, signed by the counters, were made up and delivered to the moderator, giving the number of ballots found in the box, the number of ballots rejected for any cause, and the number of ballots counted for each candidate respectively. No return was filed with the town clerk by the registrars on the day following the election, as required by statute, showing the whole number of names registered, the number checked as voting, and the number not checked. On October 14, 1924, the moderator signed a certificate which was filed with the town clerk, which contained a statement of the persons elected selectmen and first selectman, but not stating the number of votes received by each. At the conclusion of the count a pencil memorandum made upon a sample ballot was handed by the moderator to the town clerk, purporting to state the number of votes received by each of the candidates at the election for their respective offices as determined by the counters, which memorandum the town clerk, at the request of the moderator, read at the town meeting. This memorandum was unsigned and uncertified, and it was claimed contained a true statement of the number of votes cast for each candidate at the election for the respective offices, but in fact the memorandum did not contain a true statement of the number of votes cast for the respective candidates at the election. The statement of the vote was read by the town clerk in open meeting, and showed, among other things, the following figures:
| Total number of votes cast | 790 |
| Rejected by moderator | 12 |
| For selectmen: |
| Clarkson A. Meigs | 384 |
| Austin Ackerman | 367 |
| Walter E. Clark | 25 |
| Joseph Schmidt | 22 |
| Clinton A. Theis | 380 |
| Vincent Stevens | 374 |
No figures of any kind were given in the memorandum or otherwise at the meeting as to the number of votes cast for first selectman for any person, but the moderator made the declarations as to persons elected as above given. No certificate of any kind was placed in the ballot box nor made to the town clerk, except as hereinbefore stated, although it was the belief of several persons, certain of whom testified in the hearing upon the petition, that a certificate duly executed by the counters and moderators had been placed in the box. Upon the opening of the box and its examination with reference to the obtaining of such certificate, it was found that there was nothing else than the ballots that had been cast and the tally sheets used by the counters, one of which sheets was signed by the counters and the moderator, but not certified.
The reason for the rejection of the 12 ballots by the counters and moderator was not made clear, although various recollections as to the reason for the rejection of each ballot were given. It did appear that certain of the ballots so rejected, and probably a majority of them, were cast for the petitioner, and for him for the position of first selectman. The petitioner had more votes for selectman, according to the announcement of the moderator, than the respondent, and no return or record was made by anybody of the number of votes cast for either the petitioner or the respondent for the position of first selectman.
The ballot box was ordered opened by the judge, and a recount of the ballots was made by a committee appointed by the judge, which recount showed the following results:
| Total vote cast | 790 |
| Rejected by the moderator, sustained by the judge | 11 |
| Rejected by moderator and counted by the judge | 1 |
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