37 A.2d 223 | Conn. | 1944
At the town meeting in the town of Hamden held in October, 1943, the two candidates for selectmen upon the Republican ticket were elected, but the two candidates for that office on the Democratic ticket, the plaintiff Robert P. McCarty and George P. Fitch, one of the defendants, received an equal number of votes. Voting machines were used at the election. Section 281 of the General Statutes reads as follows: "When the number of assessors, members of the board of relief, selectmen, constables or grand jurors to be elected by any town shall be even, no person shall vote for more than one-half the number; if the number to be elected be odd, no person shall vote for more than a bare majority of the number. That number of persons *712 sufficient to fill the offices above mentioned, respectively, who have the highest number of votes shall be elected. In case of a tie, that person whose name stands first or highest on the greatest number of ballots shall be elected." Section 630 of the General Statutes provides: "If the electors of any town, city or borough shall fail to choose a candidate for any office, by reason of an equality of votes at any electors' meeting, and no provision is otherwise made by law for the election of a candidate to such office, such meeting shall stand adjourned for one week at the same hour at which the first meeting was held." The moderator refused to declare either Fitch or McCarty elected under the concluding sentence of 281, or to declare an adjournment of the meeting for a week for a special election under 630. This mandamus action was brought by McCarty against the moderator of the town meeting, the town clerk of the town and the two selectmen elected at the town meeting to secure an order that they call a special election to dissolve the tie vote in accordance with the intent and provisions of 630, and to make proper arrangements for holding that election. The trial court ruled that under the provisions of 281 Fitch was duly elected selectman and denied the writ. McCarty has appealed.
The proceedings in the case were decidedly informal. The state's attorney on behalf of McCarty made application to the court for a writ of mandamus, and on that application it issued a rule to show cause; the issuance of this rule at that stage of the proceedings, though unusual, was permissible; but thereafter no alternative writ was issued and no return made. Instead, the defendants all filed answers; two of them filed "special defenses" asking affirmative relief; and one of them filed an answer and counterpetition also seeking such relief. The procedure in mandamus is *713
definitely fixed by our decisions and should be followed. State ex rel. Standard Oil Co. v. New Britain,
There is no dispute as to the facts decisive of the case and no need to consider the defendants' attack on the finding. The ballot labels placed on the voting machines used in the election, on which were printed the names of candidates, extended horizontally across the front of the machines; only two parties had nominated candidates; the upper label was that of the Republican party, and the lower was that of the Democratic party; and as regards the office of selectman the ballot labels read as follows
1A 2A Republican First Selectman Second Selectman party F. Raymond Rochford William H. Balke
1B 2B Democratic First Selectman Second Selectman party George P. Fitch Robert P. McCarty *714
A straight ticket was voted by pulling the party lever, which turned down to a voting position all of the pointers for candidates of that party, and leaving it in that position until the curtain lever was moved when the voter left the booth. If it was desired to vote a split ticket, the party lever was pulled and the pointer over any name to be "cut" was then turned up and the pointer over the name of the candidate to be voted for was turned down.
Section 738 of the General Statutes, authorizing the use of voting machines, provides: "All provisions of the statutes applicable to elections where voting is done otherwise than by machines, and all penalties prescribed for violation of such provisions, shall apply to elections where voting machines are used, in so far as they are not in conflict with the provisions of this chapter." The basic question is, was the situation before the court within the provisions of 281. This section was enacted at a time when a separate ballot was printed for each party upon which the names of its nominees were placed one below the other; General Statutes, Rev. 1902, 1632, 1810; and anyone desiring to vote a split ticket could do so by crossing out a name and inserting another by writing or a paster. General Statutes, Rev. 1902, 1651. It was a simple matter for any person casting such a ballot to make the name of any candidate he wished to vote for stand "first or highest" on the ballot. There is a quite similar provision in the statutes for determining which one of the persons elected selectmen shall hold the position of first selectman, which reads as follows: "Of the persons elected selectmen by any town, the person first named on a plurality of the ballots cast for them or any of them shall be first selectman . . ." General Statutes, 283. In 1891 we had before us an election contest involving this statute. Mallett v. Plumb,
If we attempt to apply 281 to an election of selectmen by voting machines, the difficulties are manifest. We have defined the word ballot in a broad sense as "the means by which a voter expresses his choice" and in effect have said that the expression of this choice by the operation of a voting machine may, in this sense, constitute a ballot. Mansfield v. Scully,
A moment's consideration will show that to be the situation before us. There is no way by which a voter using a voting machine can give effect to his intention as to the person whose name is to stand "first or highest" on his ballot. To paraphrase an illustration found in Mallett v. Plumb, supra: Suppose that all but one of those voting for Fitch were Republicans who voted for Rochford and Fitch, and all but one of those who voted for McCarty were Democrats who voted for Balke and McCarty; there can be little question that the Republicans voting for Fitch would first turn the Republican party lever and then turn down the pointer over Fitch's name, and presumably most of the Democrats voting for McCarty would first turn the Democratic party lever before turning down the pointer over Balke's name. In such a situation, so far as the intent of the voter is concerned, McCarty would be the first named in a majority of the votes cast as between him and Fitch; and only by doing the very thing which in Mallett v. Plumb, supra, we said should not be done, that is, by giving controlling weight to the fact that Fitch's name stands first upon the printed ballot label, could Fitch be regarded as the "person whose name stands first or highest on the greatest number of ballots." In an election for town officers where voting *717 machines are used, it is not reasonably possible, with a due regard to the rights of voters to declare their preference, to apply the provisions of 281 to determine, as between two candidates for selectman having equal votes, which is to be declared elected. Section 281 was not applicable in the situation before the trial court. It was in error in finding that Fitch was duly elected.
It does not follow, however, that the plaintiff was entitled to a writ ordering a special election in accordance with the intent and provisions of 630. The fact that the time set by law for the performance of an act has passed often will not preclude a court from directing an officer who has refused or failed to act to fulfill his duty. State ex rel. Foote v. Bartholomew,
The only error is in the conclusion of the trial court that Fitch was elected, which is embodied in the judgment. This makes it necessary to set the judgment aside.
There is error in part, the judgment is set aside and the case is remanded with direction to render judgment for the defendants in accordance with this opinion.
In this opinion the other judges concurred.