Talcott v. Philbrick

• Decision Date: 22 October 1890
• Citation: 20 A. 436,59 Conn. 472
• Court: Connecticut Supreme Court
• Parties: TALCOTT v. PHILBRICK.

20 A. 436

59 Conn. 472

TALCOTT

v. PHILBRICK.

Supreme Court of Errors of Connecticut.

Oct. 22, 1890.

Appeal from superior court, Hartford county.

C. E. Perkins and A. Perkins, for appellant. E. H. Hyde, Jr., for appellee.

CARPENTER, J. The object of the statute of 1889 is obvious. It is to secure an honest vote, correctly expressing public sentiment, by preventing fraud, corruption, and intimidation. Fraud, by placing it in the power of every voter to obtain an official ballot from the representatives of the leading parties, who are duly sworn to a faithful performance of their duties, and in like manner an official envelope, in which to in close his ballot before voting. This would seem to effectually preclude any opportunity for fraud or imposition. Corruption, by making it impossible for any one who would bribe or other wise corrupt a voter to know that the required vote was actually deposited. Intimidation, by giving to each voter an opportunity to select and prepare his ballot, and to deposit it free from observation, and in such a manner that no one but himself can possibly know how he votes unless he chooses to disclose it. To this end certain requisites in respect to ballots and envelopes are prescribed. We are relieved of any obligation to inquire as to the necessity or reason of this or that requirement, and we are not at liberty to dispense with anything that is required, whatever the reason for it may be, or even if without any apparent reason at all. The legislature has spoken, and obedience is our first and only duty. It is at liberty to throw around the ballot-box such safeguards and regulations as it may deem proper, and it is the duty of the citizen to conform thereto. Some inconvenience is not too great a price to pay for an honest, pure ballot. What has the legislature required? The requirements material to this case relate to the ballot. The first section of chapter 247, p. 155, Acts 1889, is as follows: "All ballots used at elections held on the Tuesday after the first Monday in November, and at all regular town and city elections, shall be printed on plain white paper, furnished by the secretary of state, as hereinafter provided. Such ballots shall be of uniform size, color, quality, and thickness for each ballot of the same class, to be determined by the secretary. In addition to the official in dorsement, the ballots shall contain only the names of the candidates, the office voted for, and the name of the political party issuing the same. The name of the party issuing the ballot, the title of the office voted for, and the names of the candidates, shall be printed straight across the face of the ballots, in black ink, and in type of uniform size, to be prescribed by the secretary of state at last sixty days before any election held under the provisions of this act. Whenever paper shall be furnished to any party, as herein provided, the secretary shall deliver with such paper printed instructions prescribing the size of type to be used. The secretary shall cause blanks to be prepared of the dimensions prescribed by him, and shall cause to be printed on the back of each blank ballot the words, 'Official Ballot.'" Section 12 of the same act is as follows: "All ballots cast in violation of the foregoing provisions, or which do not conform to the foregoing requirements, shall be void, and not counted: provided, however, that any voter may alter or change his ballot by erasing any name there from, or by inserting in place of any name thereon, in writing, or by a paster, the name of any person for any office to be voted for therein other than the person thereon named for such office." The question relates, not to the paper, but to the printing or writing thereon. Four things only are allowable: The official indorsement, the name of the candidates, the office voted for, and the name of the political party issuing the ballot. The finding is explicit that the ballots in question were issued by the Republican party; that they did not contain the name of that party; and that they did contain the word "Citizens," thus purporting to have been issued by citizens, or an organization of citizens, as distinguished from the other parties, and that there was no such party or organization in the field at that election. Does such a ballot conform to the statute? The ballot does not speak the truth. It purports to have been issued by a citizens' party, but it was in fact issued by the Republican part y; it implies that there was a citizens' party, but there was not. So that, if the argument that the name of the party issuing the ballot may be omitted altogether is sound, it will hardly justify a misrepresentation. But is the argument sound? The clause, "the ballots shall contain only the names of the candidates, the office voted for, and the name of the political party issuing the same," if construed by itself, might perhaps be regarded as permissive, and not mandatory. What is the ballot? It consists, not merely of the paper of the prescribed size and quality, but also of the required printing thereon. No part may be omitted. If the name of the party may be omitted, so may the name of the candidate, or office. If either of the last two is left out, its validity as a ballot is destroyed. That demonstrates the absurdity of the argument when applied to those requisites. And yet the grammatical formation of the sentence is such that the argument applies as well to them as to the name of the party. But this clause cannot be construed by itself. It must be taken in connection with other parts of the act. The next sentence in the same section is mandatory in terms: "The name of the party issuing the ballot, the title of the office voted for, and the names of the candidates shall be printed straight across the face of the ballots, in black ink, and in type of uniform size, "etc. It will hardly do to say that the statute means that these three things shall be so printed if printed at all. That is an interpolation inconsistent with the spirit and object of the act. The proviso in the twelfth section is significant: "Any voter may alter or change his ballot by erasing any name there from, or by inserting in place of any name thereon, in writing, or by a pester, the name of any person for any office," etc. No other erasure or writing is allowed. All else must be printed. If any other writing is allowed, other provisions of the statute are rendered nugatory and meaningless. Expressing in terms what may be done prohibits the doing of anything else. Our conclusion is that these ballots were not legal, and that there is no error in the judgment.

LOOMIS and SEYMOUR, JJ., concurred. ANDREWS, C. J., and TORRANCE, J dissent.

ANDREWS, C. J., (dissenting.)

At the city election, Holden in the city of Hartford on the first Monday of April, 1890, for the choice of a mayor, aldermen, and other city officers, the plaintiff was a candidate for alderman in the Seventh ward. The defendant was the opposing candidate, and was declared elected by a plurality of one vote over the plaintiff. The plaintiff brought his complaint to a judge of the superior court, pursuant to the fifty-eighth section of the General Statutes, claiming that he should be certified to have been elected instead of the defendant. The complaint was in five paragraphs. A demurrer was sustained to the first and second paragraphs, and no evidence was offered to prove the averments contained in the third and fifth. The fourth only was left. In that paragraph the plaintiff alleged that "in said election in said ward there were improperly and illegally counted for the defendant ten or more votes which were illegal and void ballots, and which should have been rejected because said ballots had printed upon their face, as indicating the political party issuing the same, the word 'Citizens,' whereas in fact they should have had upon their face, as indicating the political party issuing the same, the word 'Republican,' because there was no such party as the Citizens' party in said election, and no candidates were nominated for any office voted for at said election by a party known as the 'Citizens' Party,' and no ballots were issued to be used in said election by any party known as the 'Citizens' Party, and because said ballots bore upon their face the names and all the names of the persons regularly nominated by the party known as the 'Republican Party' for the various offices voted for at said election, and the word 'Citizens' was printed on said ballots, and they were thus issued fraudulently, and with the intention of deceiving, misleading, and defrauding the voters at said election." The material facts upon which the plaintiff's claim is founded, as so set forth, are that 10 or more illegal and void ballots were counted for the defendant when they ought to have been rejected, which ballots were illegal and void "because the word 'Citizens' was printed on them, and they were thus issued fraudulently, and with the intention of deceiving, misleading and defrauding the voters at said election." This ground of the illegality of the said ballots is stated in clear, positive, and direct terms. As the allegation of fraud, without the facts indicating the fraud, would be insufficient, the complaint sets forth the facts from which the fraud and the intent to deceive are made to appear, viz.: That they had printed upon their face the word "Citizens" when they should have had the word "Republican;" that there was no citizens' party at said election which nominated candidates or issued ballots: that said ballots had on them the names of the Republican candidates, etc.; and upon these facts the paragraph concludes by averring that the word "Citizens" was printed on said ballots, and they were thus issued fraudulently, and with the intent to deceive the voters at said election. With these facts alleged, the paragraph showed a good ground of action, well pleaded, and it withstood...