Curran v. Clayton

Sleetions. Australian Ballot Law. Defective Ballots. Decision of Board of Aldermen,— when reviewabU. B. 8., e. 4; Stats. 1880, c. 193; 1891, c. 102; 1893, c. 200. The elective franchise must be exercised under such regulations and restrictions as the legislature may deem reasonably necessary to maintain order at elections, prevent intimidation, bribery and fraud, preserve the purity of the ballot box and thus secure a genuine expression of public sentiment. Statutes designed to secure complete and inviolable secrecy of ballots cast at public elections should be construed, under established rules, with reference to the mischief to be remedied and the object to be accomplished; and interpreted, if practicable, so as to promote and not destroy the purpose of their enactments. The enactment of the Stat. of 1891, c. 102, popularly known as the “Australian Ballot Law,” was designed to inaugurate an important departure from the mode of voting which had existed in this State prior to its passage. Its distinguishing feature is its careful provision for a secret ballot. Under this statute giving the voter a clear opportunity to designate by a cross mark (X) his choice of candidates, the place and method of marking the ballot being regulated and defined in the statute, it was held that ballots defectively and illegally marked as follows should be rejected:— (1.) Where the cross (x) was placed above the name of the candidate, and not in the appropriate place at the right of it; (2.) Where there was a cross (X) above and also one beneath the candidate’s name, but none at the right of it; (3.) Where the cross (X) was placed at the left of the name of the candidate ; (4.) Where there was a cross (X) under the party name at the head of the ticket and one at the left of the defendant’s name on another party ticket; (5.) Where there was no cross (X) whatever, but a short, straight line drawn across the square at the right of the party name at the head of the ticket; (6.) Where there was a cross (X) in the square at the right of the name of each candidate except that for Mayor, on one party ticket, and a cross (X) in the square at the right of the party name on another ticket. The board of aldermen in the city of Bangor re-examined the ballots cast for alderman in ward seven, counted for defendant the six ballots above described, and declaring that there was no choice, ordered a new election to be held. The defendant securing a majority of the ballots then cast claimed to hold the office by virtue of the second election; that the subject matter was within tlio exclusive jurisdiction of tlie board of aldermen; and that the ballots alleged to be defective and irregular were properly counted for him. The plaintiff thereupon began liis proceeding in equity under R. S., c. i, and Stat. of 189Í!, c. 200, amendatory thereto, asking the court to take jurisdiction of the matter, and require the defendant to surrender the office to the plaintiff. Held; that the decision of the board of aldermen is subject to review by this court; that the city charter is to be construed as affording a cumulative or primary tribunal only, and not an exclusive one; that it does not preclude a contestant from resorting to the court for a revision of a question of law; and that the decision of the board of aldermen involved the determination of a question of law and not an issue of fact, or a matter of discretion.

In equity. This was an appeal from a final decree in equity rendered in the court below, in favor of the plaintiff, where there was a hearing upon the bill, answer and testimony. The case upon the appeal was certified to the Chief Justice and argued in writing. Both parties claimed to have been elected alderman in ward seven, in the city of Bangor. The case is stated in the opinion. The plaintiff’s bill, omitting the jurat, is as follows : "State of Maine. Penobscot, ss. "To the Supreme Judicial Court. As in Equity. "William F. Curran, of Bangor, in the County of Penobscot, petitions and complains against William Z. Clayton, of Bangor, in said County, and says : "That he, said Curran, is a natural born citizen of the United States, of the age of twenty-nine years ; that he is now and has been for several years past continuously a legal resident in and duly qualified voter of, Ward Seven, in said City of Bangor; that he is legally qualified to be elected to and hold the office of Alderman from said Ward Seven, in the City Council of Bangor. " That he was duly elected and qualified as Alderman of said Ward Seven, in March, 1892, and held said office for the municipal year then next ensuing; that at the regular annual city election in said Bangor, on the second Monday of March, 1893, duly and legally hold under the provisions of law and especially of Chapter 102 of the Public Laws of 1891, he was a candidate for re-election as Alderman for said Ward Seven, in the City Council of said Bangor, for the municipal year then next ensuing; that as such candidate his name was duly and properly, placed upon the official ballot to be used at said city election in said Ward Seven; that of the qualified electors of said Ward Seven, at said election of March, 1893, he received a clear majority over all the other candidates voted for as Alderman at said election in said Ward Seven, in that of the different candidates for Alderman, whose names appeared upon the official ballots cast at said election in Ward Seven, the qualified electors of said Ward, by proper cross'upon the official ballot indicated their choice as follows, viz : "The respondent, William Z. Clayton, had 295 votes. "Said William F. Curran, had 310 votes. "John S. Ellis, had 12 votes. "The whole number of ballots cast for Alderman was 617 votes. "Necessary for a choice, 309 votes. "Andyour petitioner was duly declared elected as said Aider-man. "That at said election in Ward Seven, all the votes given in for the several offices, including the said office of Alderman, were properly sorted, counted, declared and registered in open Ward meeting by the Warden of said Ward, in the presence of the Clerk of said Ward, who caused the names of the persons voted for and the number of votes given for each to be written in words at length, and duly and properly recorded. "And the Ward Clerk of said Ward Seven did within twenty-four hours after said election, to wit, in the evening of the said second Monday in March, 1893, deliver to said Curran, a certificate of his election as Alderman for said Ward Seven, in said City Council as aforesaid. "And said Clerk of Ward. Seven did forthwith deliver to the City Clerk of said Bangor, a certified copy of the records of said election; that on the third Monday of March, 1893, the Aldermen and City Council elect, duly met in convention, when and where, no one protesting, the oath of office was duly administered to your petitioner to perform the duties of Alderman from Ward Seven in the City Council of Bangor, for the municipal year then next ensuing, whereupon your petitioner assumed the duties of said office, and continued to perform them until the unlawful assumption of the same by the respondent as hereinafter stated. "That at a meeting of the Board of Aldermen of said city, held on the 5th day of April, 1893, said board against the protest of your petitioner improperly and illegally went behind the said returns of said Clerk of Ward Seven, in so far as they related to the election of an Alderman, and recounted the ballots cast at said election in Ward Seven, and by counting as cast for said respondent six ballots so defectively, improperly and illegally marked as to make it impossible to determine the voters’ choice for Alderman, (five of said six ballots having been properly and legally rejected axxd marked as defective in the said counting at said ward meeting, and one of said six ballots having been counted for Mayor only and properly not counted for Alderman at said ward meeting,) the whole number of votes cast for Alderman in said election was claimed to be increased from 617 to 622, and therefore said 310 votes cast for your petitioner were claimed not to constitute a majority of said 622. "Your petitioner further says that said recount showed an error in the ward count of one too man}*- votes for said Clayton, so that the actual legal votes cast at said election lor said Clayton were 294 instead of 295, which 294 together with said six ballots illegally counted for said Clayton made a total of 300 votes claimed at said re-count as cast for said Clayton; and thereupon said Board of Aldermen voted that there was no election of Alderman at said election of 2d Monday of March, 1893, in Ward Seven, and ordei’ed a xxew election against the protest of your petitioner, who says that said attempted i'e-canvas of the votes cast at said election in Ward Seven, on 2d Monday of Max’ch, 1893, was improper aixd without authority of law. "The acts of the wax'd officer in the absence of fraud or willful miscoixduct, in declarixxg your petitioner elected were conclusive in the prenxises and not subject to review by the Board of Aldermen, and even if they were a subject of review by the Board of Aldermen, they acted illegally in counting said six defective ballots, as indicating the voter’s choice of said respondent or any one else for Aldermen. "And your petitioner through the City Committee, and directly himself, notified the City Clerk that he should take no part in said second election, and not to print his name upon the official ballots, and his name was not printed thei’eon, and he in no manner participated in said election, which was held on the eighth day of May, 1893, whereat said respondent claims to have been elected to the office of Alderman of Ward Seven, in said City Council for the municipal year 1893 and 1894. "That said respondent holds a certificate of election to said office issued to him in pursuance of said election of May eighth, 1893, by Ward Clerk of Ward Seven, and said respondent was sworn ih to said office on the 9th of May, 1893, and now claims to hold said office in pursuance of said election of May 8th, 1893, to the exclusion of your petitioner. "Your petitioner, William F. Curran, a person eligible to said office and claiming to be elected to said office of Alderman from Ward Seven, in the City Council of Bangor for the municipal year 1893 and 1894, as hereinbefore more fully set forth, proceeds against said respondent, William Z. Clayton, who claims to hold said office as hereinbefore more fully set forth. And your petitioner as a part of this bill of, complaint begs leave to refer to and produce in court, in so far as the same may be pertinent to the issue, the records, or certified copies thereof, of said Ward Seven, and of said City, and to produce for the inspection of the court the aforesaid ballots cast, and claimed to have been cast at said election of 2d Monday in March, 1893. "And your petitioner prays that time and place may be set for hearing upon this petition, and said adverse party notified thereof as provided by law, and that said adverse party may be required to file at said time and place of hearing, an answer traversing the facts hereinbefore set forth, which he does not mean to admit, and that all the facts hereinbefore stated not denied by the respondent shall be taken as admitted by him. "And your petitioner further prays that if judgment is awarded in his favor an order of court may be issued against said respondent commanding him to yield up said office, and that your petitioner may be allowed to enter upon the duties of said office, the forms of all which orders are particularly specified in sections 53 to 57 of Chapter 4 of the Bevised Statutes, and acts additional thereto, and amendatory thereof especially of Chapter 260, of Public Laws of 1893 ; and your petitioner prays that costs may follow judgment, in his favor. "Bangor, Maine, May 12, 1893. Wx. F. Curran.” The defendant’s answer discloses two grounds of defense; first, that the board of aldermen had exclusive jurisdiction of the subject matter under § 25 of the city charter; and, second, that the ballots alleged to be defective and irregular, were properly counted for the defendant. 1 Dill. Mun. Corp. 2d Ed. c. 9, § 141. Language of city charter does not exclude common law courts from power to review acts of the aldermen. If court, previous to act of 1893, had such power, there can be no question that it has additional power now. A single straight line does not constitute a cross. Wigmore’s Aust. Ballot Law, page 178, citing Indiana statute of 1889. Five ballots defective under Stat. of 1891, § 10. See B. I. Stat. of 1889, § 6, and opinion of the Justices. If the rule of "intention,” as contended by defendant, governs, it applies to all the ballots, and we shall have no rule at all, instead of the plain and precise rules laid down by the legislature for printing and marking ballots. The rule of " intention,” cannot be a fixed one, and, if adopted by the court, must be left to the varying and partial judgments of different sets of presiding officers. Their judgment would in turn be reviewed by a single justice, to be reviewed again by all the judges; so that this court is to be made the final counting and canvassing board in every case, great or small, when a candidate may think the presiding officials at the polls doesn’t guess at the voter’s intention in the way the candidate himself might desire. City charter gives the board exclusive jurisdiction unless it is affirmatively shown that the decision was arrived at through prejudice, undue influence, corrupt motives, or illegal methods amounting to a legal wrong. It must appear that the acts of the board were illegal. Rounds v. Smart, 71 Maine, 380; Sanders v. Getchell, 76 Maine, 158 ; Pierce v. Getchell, Id. 216 ; Opinion of Justices, 70 Maine, 560. Analogous cases in which the court will not assume to review proceedings of tribunals or bodies acting within their limits of jurisdiction are towns and juries. Googins v. Gilmore, 47 Maine, 9 ; Williams v. Bunker, 49 Maine, 427 ; Peabody v. Hewett, 52 Maine, 33 ; Farnum v. Virgin, Id. 576; Drown v. Smith, Id. 141; Hovey v. Chase, Id. 304 ; Gleason v. Bremen, 50 Maine, 222 ; Folsom v. Skofield, 53 Maine, 171; Darby v. Hayford, 56 Maine, 246 ; Fessenden v. Sager, 53 Maine, 531. Legislature should not deny right of suffrage, either directly or by making it so difficult or inconvenient as to amount to a denial, Dewitt v'. Bartley, 146 Pa. St. 592. Section 24 of Stat. 1891, c. 102, is directory how to prepare and deposit ballots. Section 27 makes it the duty of the proper officers to give full force and effect to the vote, to count it for the candidate that the elector intended it, thus give effect to the statute in accord with the decisions of this court heretofore given relative to the right of suffrage secured to the citizen by the constitution. All the statutes relating to the same subject matter should be taken into consideration. Smith v. Chase, 71 Maine, 164; Collins v. Chase, Id. 434. Comparing the Stat. of 1891 with the Constitution and all laws heretofore enacted, it is the duty of the warden or municipal officers to count all votes in favor of the candidates that the canvassing board understand, by inspection of the ballot, the elector intended to vote for. Ballot with only one mark, a cross over defendant’s name shows, beyond doubt and argument, an intent to vote for defendant as alderman. Ballot which has two crosses, one over the defendant’s name and the other under it, the rest of the ticket being without marks, shows that the elector intended to vote for the defendant as alderman, and the candidate, (the mayor,) whose name is above the defendant’s, and for no other candidates. As to ballots marked at the left of the candidates’ names, there is no provision in the statute requiring the rejection of the ballot. The provision for placing the mark at the right of candidates’ names is directory and not arbitrary; intended as an instruction in preparing ballots that confusion may be avoided in adopting this method of election. In .Parvin v. Wimberg, 130 Ind. 561, the court held that the construction of an election law that had been accepted and acted upon by the officers, whose duty it was to administer the law, will not be ignored by the court unless it is palpably wrong.