State v. Kearn

• Decision Date: 03 July 1891
• Citation: 22 A. 1018,17 R.I. 391
• Parties: STATE ex rel. ANDREWS et al. v. KEARN et al.
• Court: Rhode Island Supreme Court

22 A. 1018

17 R.I. 391

STATE ex rel. ANDREWS et al.

v. KEARN et al.

Supreme Court of Rhode Island.

July 3, 1891.

Information in quo warranto by the state, on relation of James H. Andrews, Hector Schiller, Thomas Jordon, Edwin F. Hawkins, Frank X. Roberts, George "W. Harris, and William Manchester, who claimed to be town councilmen, against Robert H. Kearn, Adam Bunting, Frank Carty, Louis Gironard, and John B. Dolan acting councilmen. Judgment of ouster entered.

Nicholas Van Slyck, Benjamin M. Bosworth, and Cyrus M. Van Slyck, for relators. Edward D. Bassett, John M. Brennan, and James E. Murphy, for respondents.

STINESS, J. The evidence clearly shows that the 110 thin or tissue ballots in question in this case, found in the ballot of district No. 1, of the town of Lincoln, at the election for town officers held June 1, 1891, were fraudulently cast. Before the ballot-box was opened the moderator warned the supervisors that they might find bunches of ballots in the box, as he had detected one man in trying to put in such a bunch. After opening the box, such bunches were found, and they were laid aside by direction of the moderator and the unanimous assent of the four supervisors and the clerk. It is inconceivable that such ballots should have thus been laid aside, and that the result of the votes, not including these ballots, should have been announced by the moderator, without protest or question by any one of the officers of both parties whose duty it was to see that the count was correct, if there had been any doubt in the minds of the six counting officers, four of whom were Democrats, on whose side these ballots had been cast, that such ballots were not properly in the box. All seemed to be satisfied that the ballots were fraudulent, and that they should be laid aside. After the announcement of the result, the moderator was advised by the town solicitor that he must count the ballots, and thereupon he added them in, and changed his previous announcement of the result. A formal return was then made by two of the supervisors of the election, setting forth these facts, the correctness of which was certified to by a third supervisor; while the fourth stated that he believed the announcement of the result by the moderator to be correct, without stating which of the two announcements he referred to. In none of the certificates was there a word of denial of the truth of the statements contained in the return that "such ballots were found in rolls, tightly rolled together, varying in number from five to fifty," and "from all appearances were put into the ballot-box at one time." This appearance is explained in evidence by the fact that the ink on the ballots was fresh, which caused them to stick together. The conduct of the four Democratic officers at the time, appointed for the purpose of seeing to the correctness of the ballot and the count, is utterly inconsistent with the claim now made that these ballots were cast separately and properly. During the controversy which followed the advice of the town solicitor no question was made by any one of the facts as above stated, but only of the duty of the moderator to count the ballots so found, and to return them to the town council. The testimony of a police constable, in attendance at the count, that he saw one of the supervisors fold up a package of these ballots, and pass them to the moderator, without a word of remonstrance or information to any one, on his part, either at the time or soon afterwards, is too much at variance with other testimony, and too incredible in itself, for belief. The evidence of the occasion is too plain to admit of doubt that the condition of the ballots showed they were fraudulently and improperly put into the ballot-box.

The fact that the check-list shows a number of names checked, sufficient to include the now disputed ballots, would ordinarily be strong evidence in favor of their legality. But in this case the check-list, as counted on the night of the election, did not show such a number, but more than 150 less. This count seems to have been carefully made; the number of checks under each letter, and each division under a letter, being noted at the foot of the column. It is now contended that this count was erroneous, because the list now shows more names checked. We do not feel satisfied that this is so....