52 Vt. 216 | Vt. | 1879
The opinion of the court was delivered by
The results required by the law in these cases depend on the results of fact from the evidence that is before the court. Without developing a critical analysis and collation of the evidence, the result is, that we find that Mr. Harris was not elected moderator of the village meeting. If the ballots gathered should be regarded as not having been fraudulently cast in any respect, nor fraudulently counted, we agree that Mr. Carpenter’s vote was not lawful, for the reason that he was not a lawful voter
The crowd, the make-up, and the manner of the meeting are shown by the concurring testimony of most of the witnesses. The extent and vivacity of the excitement, the intensity of the purpose and determination on both sides of the partisan controversy each to carry it against the other, are vividly exhibited by the evidence. In view of what is thus shown, it behooved all concerned, as citizens mindful of their duties as well as of their rights, to see to it that the vote should be taken in a way most likely to enable all lawful and no unlawful votes to be taken and counted. It is agreed that many were there besides lawful voters; that they were mixed indiscriminately in the crowd and were participating in the excitement and uproar that characterized the scene. It is obvious that in taking the votes in hats by the two tellers, making their way as they did amongst, and through, and over the crowd — one of them in part traversing the same region with his receptive hat that the other had just before traversed with his and taken the deposited votes, it was impossible for the tellers, or anybody but the individual voters, to know whether illegal voters did not contribute illegal votes to the contents of the hats, and utterly impossible to be known whether some voters, legal or illegal, did not deposit more than a single vote at the same time, or that a single voter did not put a vote or votes into both hats. However proper such a mode of voting may be on some special occasions, when the voters are few and are well known and reliable men, and the excitement of hostile interests is not operating to prompt to anything but fair and legal voting, and when it would at once be manifest if illegal votes should be cast, nothing that could be said upon the subject could make more palpable the gross impropriety of taking the vote on tho occasion as it was done in this case. It
It is strongly indicated in this case that more than a single vote were deposited in the hats at the same time by the same hand. It seems very likely that votes were put in by persons not legal voters in the village meeting, besides Mr. Carpenter, who voted without fault, though without legal right.
While the doctrine of the books and cases, as to the effect of acquiescence is recognized as sound and salutary, when properly invoked and applied, in this case there was no such acquiescence as to countervail the effect of the failure to elect Mr. Harris by a lawful majority. In the excitement and confusion of the occasion, nothing seems to have been done with considerate deliberation on either side. After Mr. Harris was declared to be elected moderator, the subsequent proceedings involved no show of a thought or supposition of acquiescence on the part of those opposed to the election of Mr. Harris, whether on the score of the man, or of the manner of his election, either in his holding the office, or in his right to exercise it. What ensued on their part, was an effort to forefend against further disaster to themselves by a repetition of the means that had been successful against them in the election of moderator. And it is further to be remarked that
As to the taste and relish which persons may have in respect to what is shown to have constituted the occasion and the scenes in question, we make no comment — leaving that to be regarded by each one according to his own ideas and preferences. It is only when such scenes and occasions are brought in question as affecting official tenure and the right and duty of administering public office, and the rights of citizens involved therein, that it is the province of the court to pronounce upon their character and effect.
It is not found that said Carney was elected moderator of said meeting. It is considered and adjudged that said Samuel F. Harris has no right to hold and exercise said office, and that he be ousted and removed therefrom, and that he pay the costs of said complaint and proceeding.
The two other cases stand for the same consideration. For the election of clerk and trustees no ballot was taken, though called for in various ways, and by motion made and seconded, but not put to vote. Instead thereof, in pursuance of a motion and voice vote of yea and nay by acclamation, the moderator appointed a committee to nominate men for those and the other offices of the village corporation. That committee reported candidates for each of those offices. A motion was made, and the moderator put it to vote in the same manner as the motion aforesaid, that said report be accepted and adopted. The vote having been given, the moderator declared that said report was accepted and adopted, and that the several persons so nominated were elected to said offices for the year ensuing, which said persons accepted and have since been exercising the same. After said report had been made, and before said motion for its acceptance and adoption had been put, distinct calls and demands for an election by ballot were made by legal voters in said meeting, which the mod
This does not necessarily imply that the officers must be voted for, each upon a separate and single ballot, and in succession one after another. Even if it were so, the fact that it would require a long time to do it, and the proceeding would become tedious and wearying, would not avail against the right and duty to have the voting so done. In the absence of any provision or requirement in the statute in this respect, it does not occur to us that it would not be competent for the meeting to direct by vote properly taken, that all the officers to be elected at that meeting, or a part of them, as might be deemed most proper and expedient, should be voted for together on the same ballot, in a manner similar to that in which state and county officers are voted for. This would give each voter the right and opportunity to cast his vote for the very man of his choice for each office, by making up his ballot with the names of such men. After the ballots had been taken, the votes for each man for any named office would have to be assorted from the rest, and counted by themselves, the same as if they had been cast separately and in no connection with any other names on the ballot as it was put into the box. Whether an en
It is considered and adjudged that said-Merritt B. Morgan was not elected to, and has no right to hold and exercise, the office of clerk of said village corporation by virtue of said pretended election made at said meeting on the first Monday in April, 1879; and that said pretended election was of no effect, and is void ; and that he be ousted and removed therefrom, unless he has otherwise lawful right and warrant for holding and exercising said office ; and that he pay the costs of said complaint and proceeding.
It is considered and adjudged that said Robert W. Bennett, Daniel G-uiltinane, Andrew M. Johnson, Prank Cromack, Charles A. Hawks, David P. Squires and Merritt B. Morgan, were not, nor was either of them, elected to, and have no right to hold and exercise, the office of trustees or trustee of the corporation of the village of Bennington aforesaid, by virtue of said pretended election made at said meeting on the first Monday in April, 1879; and that said pretended election was of no effect, and is void, and that each of them be ousted and removed from said office, unless he has otherwise lawful right and warrant for holding and exercising said office; and that they pay the costs of said complaint and proceeding.