State v. Harris

52 Vt. 216

• Court: Supreme Court of Vermont
• Decided: October 15, 1879
• Status: Published

Opinion

The opinion of the court was delivered by

Barrett, J.

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 at that meeting. We agree that the votes for Carney, at the head of the seven tickets that contained, votes for other officers, should have been counted. We find that one hundred and eighty-three votes were cast for Carney, besides the seven votes that were not counted for him. I am commissioned by my associates to give expression as follows to the views of the court, as to the manner in which the voting for moderator was done, and as to the manner in which it ought to have been done.

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 was but a burlesque and a mockery of all sensible and sober ideas of a ballot answerable to the lawful right of the citizen, and to the soundness with which the exercise of that right is hallowed in the speech, at least, of the demagogue, as well as of the ingenuous citizen. It is of no avail to say that it was difficult to take the vote in any other way. It would be in point and cogent to answer, that it better not have been taken at all, than to be taken as it was. It is at the bottom of all honest and just ideas of a proper vote, that some mode should be adopted by which it may be known by persons authorized to determine a questioned right to vote, what persons offer to cast votes, or to vote by voice or by count, that the right of any such may be challenged and properly determined, and that, in voting by ballot, it may, with all practicable certainty, be known whether more votes have been cast than there are legal voters to cast them. The difficulty of doing this on any given occasion, as, for instance, the one now in question, is the strongest reason why it should be done.

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 this is not a proceeding upon the relation of a private person. It is by the State represented by its official attorney. We regard the State, as representing every citizen of it, to be entitled to have this application regarded in behalf of both the rights and duties of every citizen, as well as in behalf of good order and public tranquility as related to those rights and duties.

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 moderator heard and understood to be made in the exercise and assertion of the right to have the election made by ballot, as claimed by those making the calls and demands. It was the lawful right of the lawful voter to make such demand, and it was the lawful duty of all concerned to have that right recognized and accorded by having the election proceed by ballot. It is the right of the individual voter under the charter to have such ballot upon his demand, when heard and understood by the presiding officer. Section 8 of the charter reads: “ At every annual meeting said corporation shall, by ballot, if called for, elect for the ensuing year, and until their places are filled by due elections”, the officers named. This does not prescribe any number as necessary to make the call, in order to entitle it to be heeded, nor any manner in which such call is to be made. It is left upon the simple and unrestricted meaning and force of the language used ; and that is, that whenever a voter calls for and demands a ballot, so that the moderator hears and understands him, only by ballot can a lawful election be made.

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 entire ticket embracing all the officers to be elected had been nominated or not, as was done in this case, the vote by the use of ballots embracing all or any part, would have left each voter to select his man for each office, in making out the ballot by him to be cast. This could not be done, as the vote was taken in this case. The vote of each voter had to be for or against the whole or none. Often, in case of voting by ballots containing names for several different offices, constituting what is called the regularly nominated ticket, some persons desire to vote for some of the nominees and against the rest, and for somebody else in their stead. This they can do by scratching, as the modern expression is, and putting other names, or no name, in place of the scratched. This right, privilege, and practice cannot be exercised when the election is made, as was attempted in this case, by a voice vote upon the entire ticket made up by the nominating committee. This right, privilege, and practice every voter is entitled to, and nobody can lawfully deny to him the free enjoyment and exercise of them. It in no manner meets the point, as against such right, privilege, and practice, to say that the mode of election adopted in this case had been used in previous elections. When not challenged and brought in question, there was no occasion for denying or testing its legality. But the fact of not bringing it in question by denying its legality, does not render that mode legal, when it is questioned and denied, as was done in the present instance. Acquiescence in an unlawful mode at former meetings does not bind, as by a law, to the same mode at the next, or any subsequent meeting. When the lawful mode is required and demanded, no one is estopped from having it accorded, and no one is authorized to refuse to accord it, by the fact that some other mode, not prescribed or warranted by law, had been adopted and practiced without challenge in making former elections. This is not a subject for the loss of right by non-user or acquiescence, or the gaining of a right by adverse use. While, under some circumstances, the voter may not be heard to challenge the validity of an election made in a mode in which he has participated and acquiesced, he is not thereby precluded from challenging that mode, and denying its legality, when a succeeding election is to occur; and if such mode is not warranted by the law, it derives no warrant, in point of legality, from the previous adoption and use of it.

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.