Mills v. Gaynor

• Decision Date: 16 May 1950
• Citation: 136 Conn. 632,73 A.2d 823
• Parties: MILLS v. GAYNOR et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 823

73 A.2d 823

136 Conn. 632

MILLS v. GAYNOR et al.

Supreme Court of Errors of Connecticut.

May 16, 1950.

Sidney Vogel, Sough Norwalk, with whom were Richard S. Weinstein, South Norwalk, and, on the brief, Margaret Sigsway, South Norwalk, for the plaintiff.

Robert B. Devine, Norwalk, for the defendant Hansen.

Donald H. McGannon, Norwalk, for the defendant Gaynor.

Before BROWN, JENNINGS, BALDWIN, INGLIS, and O'SULLIVAN, JJ.

BALDWIN, Judge.

This case comes before the court on an agreed statement of facts. The charter of the city of Norwalk contains the following provisions concerning the selection of the registrars of voters: 'Section 1. On the first Monday of October, 1937, and biennially thereafter, there shall be elected at the general election for the choice of town and city officers, two registrars of voters, one from each of the two major political parties who polled, respectively, the largest and next to the largest number of votes at the previous city election of the city and town of Norwalk, who shall serve full time and be designated as a board of registrars of voters of said city. Sec. 2. Each of said registrars shall take office on the first Wednesday following his election and shall hold office for the term of two years from the Wednesday following his election and until his successor shall be elected and shall have qualified, unless sooner removed for cause as provided by statute in the case of elective officers of said city. Sec. 3. Said registrars shall be electors of said city and their duties shall be such as are required by statute in respect to election laws, including the preparation of caucus and voting lists and the enrollment of all persons subject to the old age assistance tax.' 22 Spec.Laws, 655; 25 Spec.Laws, 299.

The charter further provides that biennially there shall be a general election for the choice of town and city officers at which there shall be chosen, by a plurality of ballots, a mayor, councilmen, a treasurer, a city sheriff and 'town officers; three selectmen, seven constables, two registrars, and a town clerk * * *. All of said officers shall be voted for on one ticket and shall hold office for the term of two years from the Wednesday following their election and until their successors are elected and have qualified * * *.' 16 Spec.Laws, 1053, § 48; 18 Spec.Laws, 909, § 1; 25 Spec.Laws, 300, § 1.

The master sheet of the chief moderator discloses that at the election in 1945 the Democratic and Republican parties, each of which placed a full ticket in nomination, received the highest average and next to the highest average number of votes cast, respectively, and that the Socialist party nominated no candidate for the office of registrar. In 1947, the candidates for the Socialist party received the highest number of votes and the Republicans next. For this election the Socialist party nominated no candidate for the office of registrar, and the Republican and Democratic candidates for that office, nominated by virtue of the standing of their respective parties in the 1945 election, received the highest and second highest number of votes cast and were declared elected. Prior to the election held in November, 1949, the plaintiff, Mills, was nominated by the Republicans, the defendant Hansen by the Socialists, and the defendant Gaynor by the Democrats. The placing of the defendant Gaynor's name on the voting machines was questioned by the town clerk, and the corporation counsel ruled that the name should not go before the voters. A rule to show cause why Gaynor's name should not be printed was issued from the Superior Court on his behalf, and at a hearing in court, Gaynor, by counsel, and the corporation counsel agreed that the name of Gaynor should appear on the ballot, without waiver, admission or prejudice, with all parties reserving their right to bring the matter into court for final determination after the election. The Republican, Democratic and Socialist parties have been nominating slates of candidates in the city elections for more than fifteen years, the Democrats and Republicans nominating full slates and the Socialists, until 1949, making nominations for many but not all offices. The Republican party causes list for 1945 contained 6313 enrolled Republicans; for 1947, 6448; and for 1949, 7032. The Democratic party caucus list for 1945 disclosed 9999 enrolled Democrats; for 1947, 9938; and for 1949, 10,040. The Socialist party caucus list for 1945 disclosed 27 Socialists; for 1947, 41 Socialists; and for 1949, 76 Socialists.

At the election on November 8, 1949, the Socialist ticket as a whole received the largest number of votes, Hansen having received 7487. The Democratic candidates received the next highest number, Gaynor having received 6976. The Republicans were third, Mills having received 5322. The chief moderator certified that Hansen and Gaynor had been elected to the office of registrar and that Mills had not been elected. All three candidates took the oath of office. Mills thereupon brought a petition to Hon. James E. Murphy, a judge of the Superior Court, pursuant to § 527 of the General Statutes, praying for a certificate entitling the petitioner to hold and exercise the duties and powers of the office of registrar. The defendants Gaynor and Hansen appeared, filed answers and cross petitions, and, upon agreement of counsel, the case was reserved for the advice of this court upon the following questions: '1. Is Section 1 of an act concerning Registrar of Voters for the Town and City of Norwalk (22 Special Acts 1937 Part 2, 655 as amended by 25 Special Acts 1947 Part 1, 299) constitutional? 2. Who were the two Registrars of Voters duly elected and entitled to hold office at the Town and City election held in Norwalk November 8, 1949?'

Had the charter provisions been accepted as constitutional and valid and had they been accorded the same interpretation as in previous years, the defendant Gaynor would not have been eligible for election as registrar in 1949 because he was not of either of the political parties that had received the largest and next to the largest votes in 1947. The defendant Gaynor contends that the charter provisions pertaining to the nomination and election of registrars of voters in the city of Norwalk are unconstitutional as violative of the constitution of Connecticut, article sixth, §§ 2, 4 and 6, as amended by the eighth, eleventh, thirteenth and twenty-ninth amendments. These constitutional provisions set forth the qualifications of electors and provide that every elector shall be eligible to any office in this state and that laws shall be made to support the privilege of free suffrage and prescribe the manner of regulating and conducting meetings of electors. Our whole elective system is the creature solely of constitutional and statutory provisions. Taylor v. Beckham, 178 U.S. 548, 577, 20 S.Ct. 890, 900, 44 L.Ed. 1187. The exercise of the suffrage is not a natural but a political right, and the legislatures of the states acting within the powers conferred by their constitutions may prescribe the manner in which elections shall be conducted and the right of suffrage exercised. Talcott v. Philbrick, 59 Conn. 472, 478, 20 A. 436, 10 L.R.A. 150; Meigs v. Theis, 102 Conn. 579, 594, 129 A. 551; Parvin v. Wimberg, 130 Ind. 561, 566, 30 N.E. 790, 15 L.R.A. 775, 30 Am.St.Rep. 254; Common Council of the City of Detroit v. Rush, 82 Mich. 532, 537, 46 N.W. 951, 10 L.R.A. 171. It is our duty to make every presumption and intendment in favor of the constitutionality of an act of the legislature and to sustain it unless its invalidity is beyond reasonable doubt. Beach v. Bradstreet, 85 Conn. 344, 349, 82 A. 1030, Ann.Cas.1913B, 946; Town of Windsor v. Whitney, 95 Conn. 357, 364, 111 A. 354, 12 A.L.R. 669; Lyman v. Adorno, 133 Conn. 511, 514, 52 A.2d 702.

The defendant Gaynor specifically claims that the charter provisions under discussion are unconstitutional because, in effect, since the selection of the two political parties each of which is entitled to nominate a candidate for the office of registrar is made two years before the election at which the offices are to be filled, these candidates are selected at an election by voters who have had no opportunity to take any part in their nomination and are nominated by voters who might not be eligible to vote in the specific election at which the candidates are presented by name for election; that the charter provisions prevent a voter from putting forth his own name as a candidate for registrar of an independent or reform party; that they deny the privilege of writing in the name of an elector who has not been nominated at all; and...