Racine v. Hunt

| Me. | May 26, 1917

Savage, C. J.

This is a petition to determine a disputed election, and is brought under the provision of Sec. 87, Chap. 7, of the R. S., 1916. The petitioner claims that he was lawfully elected selectman, assessor of taxes and overseer of the poor at the last annual town meeting in the town of Brunswick, but that the respondent was improperly declared to be elected to these several offices. The petitioner prays for judgment that he is entitled to the offices. The sitting Justice rendered judgment for the petitioner, and the respondent appealed.

It appears that the town voted to elect all town officers on one ballot. Two tickets were voted. On one ticket the name of the petitioner appeared as a candidate for the three offices, and on the other the name of the respondent. The ballots were counted by a committee appointed therefor, who reported that the respondent had received 435 ballots, and the petitioner 415. The report was accepted, and accordingly the respondent was declared elected. He qualified, and has since been performing the duties of the office. After the town meeting had adjourned, some question was made as to the accuracy of the count of ballots as reported, and they were examined. Without going into the details, it is sufficient to say that it sufficiently appears, as found by the sitting Justice, that there was an error in counting, and that the petitioner received 415 votes, while the respondent in fact received only 413. The petitioner therefore was elected and should have been so declared.

But the respondent challenges the jurisdiction of the Justices to determine the question. And he contends further that as the tickets were unofficial, and as they were not preserved or kept in custody by any person, by virtue of any statute, they are not admissible in evidence to contradict the record of the meeting which shows that he was elected. In fine, it is claimed that the court cannot go behind the record. We think that there is no merit in the contention, that the Justices have jurisdiction, and that the truth should prevail, notwithstanding the record. Such is the obvious purpose of the statute.

The statute in question was first enacted in 1880, Chap. 198, Sec. 1. It followed a period during which there had been much public discussion and dispute as to the power of various tribunals to go behind the records of elections. It was evidently intended to declare a power in the court to settle certain classes of election contests according to the truth. To find the truth it is obviously necessary to inquire outside of and behind the records. The correctness of the records is the very question that is to be decided. Under this statute, every petitioner starts in with the record against him. His opponent has been declared elected, and it has been _so recorded.

At first the statute applied only to elections of county officers and County Attorneys. In 1893, the statute was so amended as to include elections to any municipal office. Laws of 1893, Chap. 26. There can be no doubt that the offices claimed in this proceeding are municipal offices. Tremblay v. Murphy, 111 Maine, 38. The statute is broad, and it imposes no limitations as to the manner of proof. Any evidence, admissible according to the rules of evidence, is admissible in an election case to show the truth. In Howard v. Harrington, 114 Maine, 443, the evidence of an actual count made in ward meeting was held sufficient to outweigh the record of an election, and a count of the official ballots found in the ballot box afterwards.

It being shown, as we think it is, that the ballots offered as evidence in this case were the identical ballots cast, and all of them, we think that they were admissible, and that they offered good ground for determining the result of the election. In such a case, the fact that they were unofficial, and the fact that the law did not put them into the official custody of any person, are immaterial.

Appeal denied.

Decree of sitting Justice affirmed with additional costs.