State v. Richards

64 A.2d 400, 44 Del. 566, 5 Terry 566, 1949 Del. LEXIS 26

• Court: Supreme Court of Delaware
• Decided: February 25, 1949
• Docket: No. 10
• Status: Published

Opinions

Harrington,

Chancellor, delivering the majority opinion of the Court:

Robert H. Wahl and Robert L. Armstrong were the duly nominated and opposing candidates of the major political parties for the office of Representative in the General Assembly from the Second Representative District in New Castle County at the General Election held November 2, 1948. After canvassing the votes cast in the various election districts of the Second Representative District, the Judges of the Superior Court, sitting as the Board of Canvass for New Castle County, issued certificates showing that Robert L. Armstrong had received a plurality of such votes. Robert H. Wahl, the relator, questions the legality of the count in the Third Election District of the Sixth Ward in the Second Representative District of the county, and seeks a writ of mandamus directing the said Judges of the Superior Court, sitting as the Board of Canvass (1) to reconvene the said court and to recanvass the vote for the office of Representative in the General Assembly from the Second Representative District for New Castle County, and particularly in the Third Election District of the Sixth Ward; (2) that, in making such recount, they reject all of the ballots cast for the office of Representative in the General Assembly in the Third Election District of the Sixth Ward in the Second Representative District of the county on the ground that they were tainted with illegality because 101 of the 296 ballots voted in that district were in envelopes not signed by both clerks; and (3) that if it should then appear that Robert H. Wahl had received a plurality of all of the votes cast for the said office of Representative in the General Assembly from the Second Representative District in New Castle County, that the certificates issued showing the election of Robert L. Armstrong should be cancelled and new certificates issued accordingly.

The relator claims that Robert L. Armstrong is not a proper party to this proceeding, and that the order permitting him to intervene as a defendant should be revoked. See Spelling on Extra. Relief (1893) § 1338; Woolley’s Del. Pract. § 1658.

Title to the office of Representative in the General Assembly cannot be tried in this proceeding and the writ, if issued, will only be directed to the Judges of the Superior Court, sitting as the Board of Canvass (State ex rel. Walker v. Harrington and Terry, 3 Terry 14, 27 A. 2d 67); but that does not determine the question. The right to intervene as a party to an action was unknown at common law, but in modern practice a more liberal rule is often applied, though the person seeking to intervene has no real direct interest in the controversy. Bankers’ Mortgage Co. v. Sohland, 3 W. W. Harr. 331, 138 A. 361. Apparently, the same rule has been applied in similar mandamus cases, though the intervening defendant could not be required to perform any of the duties contemplated by the petition. People ex rel. Barbee v. Jarecki, 247 Ill. App. 215.

In State ex rel. Walker v. Harrington and Terry, supra, which was also a mandamus case, the attorneys representing one of the candidates for the office of Comptroller for Kent County, voted for at the election, were permitted to appear as amici curiae, but the case does not indicate that there was any application to intervene as a party to the proceeding.

Moreover, Rule 49 of this court provides that when a petition is filed for a writ of mandamus, the cause “* * * shall be heard according to the practice and procedure of similar causes in the Superior Court of this State.”

Rule 81 of the Superior Court provides that procedure in case of mandamus “* * * shall conform to these rules so far as practicable and to the extent that this will not contravene any applicable statute; otherwise, the procedure in such matters shall remain as heretofore.”

Rule 24 of the Superior Court also provides in part:

“(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action:

* * * (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”

These rules were promulgated after Rule 49 of this court went into effect, but its language seems to indicate that it was not intended to be confined to existing rules of the Superior Court.

The intervening defendant has some interest in the result of a recanvass of the vote, if made, and should be permitted to participate in the pleadings and other steps in the case. The relator’s motion to strike off the intervention order, is, therefore, denied.

John P. Sinclair, a member of the House of Representatives in the 114th General Assembly of the State of Delaware and duly re-elected a member in the 115th General Assembly, was permitted to appear as amicus curiae in order to suggest that the relator’s petition should be dismissed because of the lack of jurisdiction of this court to give the relief sought. His contention is based on Section 8 Article II of the Constitution which provides:

“Each House shall be the judge of the elections, returns and qualifications of its own members

Section 12, Article IV of the Constitution also provides:

“The Supreme Court shall have jurisdiction as follows: * * * (5) To issue writs of * * * mandamus to the Superior Court * * * or any of the judges of the said courts * *

The relief sought under the latter provision is not in conflict with the constitutional powers given the Legislature by Section 8, Article II to determine the election and qualifications of its own members. People ex rel. Fuller v. Hilliard et al., 29 Ill. 413; State v. South Kingstown, 18 R. I. 258, 27 A. 599, 22 L.R.A. 65; Ellison v. Barnes, 23 Utah 183, 63 P. 899; 107 A.L.R. 211.

Wahl does not and could not seek an order directing the House of Representatives to recognize him as a duly elected member of that body from the Second Representative District in New Castle County. He only seeks to require the proper performance by the Board of Canvass of a duty imposed by law (so that he may thereby procure evidence of his election to office), and mandamus is his only remedy. He could not procure the same evidence in a contest for the office in the House of Representatives, pursuant to the method provided by Chapter 64 of the Revised Code of 1935. Should he appear before the House armed with a certificate indicating his election, that body would still have the exclusive right to determine whether he was a duly elected member. People ex rel. Drake v. Mahaney, 13 Mich. 481; Petition of Dondero, 94 N. H. 236, 51 A.2d 39; State v. Corley, 6 W. W. Harr. 135, 136, 172 A. 415. But the presentation of the certificate would bring the question before the House and would be pertinent evidence for its consideration in determining his rights.

In People ex rel. Fuller v. Hilliard et al., supra, which involved a similar proceeding, the court said:

“The House of Representatives has no cognizance whatever of this matter. That body can only take cognizance of the case when the certificate is presented, and a seat claimed in virtue of it.

* ❖ $Si * ❖ *

“Though the House of Representatives is the sole and exclusive judge of the qualifications of its members, this application has no reference whatever to the point of qualifications. Its sole purpose is to procure the requisite evidence, to present to that body, of a prima facie right to a seat in it, independent wholly of the question of qualification. It is clear, then, the appropriate remedy is not within the House of Representatives. The only remedy the relator has — the only means by which he can obtain evidence of the right claimed, is by this compulsory writ of mandamus.”

Applying these principles, we are unable to agree with Mr. Sinclair’s contention.

Other jurisdictional defenses relied on by the intervening defendant are:

(1) That a writ of mandamus will not issue to disturb, correct, or override the determination of a question of fact of of law committed to the discretion of the Superior Court in the exercise of judicial or quasi judicial functions even though the decision of the Superior Court was wrong as to the facts or as to the law: and

(2) That such a writ will not issue when there is an adequate remedy at law; and there is a remedy by a writ of error, by a writ of certiorari, or under the provisions of Article I, Chapter 64 of the Revised Code of 1935, relating to contested elections.

All of these defenses are overruled on the authority of the recent decision of this court in State ex rel. Walker v. Harrington and Terry, 3 Terry 14, 27 A. 2d 67. There, a number of soldiers in the United States Army, who were registered voters in this State, but stationed in camp in another State, cast their ballots under the absentee ballot law, and without appearing in person, for a nominee for the office of Comptroller for Kent County. The counting of such ballots was objected to before the Superior Court, sitting as the Board of Canvass, on the ground that the Act under which they were voted violated the provisions of the State Constitution. The court doubted its power to consider and determine that question, and counted the ballots. The nominee for the office on the Democratic ticket having received a plurality of all the votes cast in the county, a certificate was issued accordingly. On the petition of the defeated candidate, this court subsequently issued a writ of mandamus directing the Judges of the said Superior Court to reconvene, to recanvass the vote for the office of County Comptroller, and to omit therefrom the ballots cast by the absent soldiers. See also State ex rel. Walker v. Harrington and Terry, 3 Terry (42 Del.) 246, 30 A.2d 688. This direction was based on the conclusion that the then absentee ballot law, providing for the soldiers’ vote, violated the State Constitution and that the Superior Court should have rejected that vote. The same jurisdictional defenses raised here were relied on in that case but were denied.

At the General Election held November 2, 1948, the names of three candidates for the office of Representative in the General Assembly from the Second Representative District in New Castle County appeared on the official ballots, two of whom were nominees of the two major political parties. In the Third Election District of the Sixth Ward 296 ballots were voted for the various candidates for that office; 100 of these were in envelopes not signed by either of the clerks who aided in conducting the election, and one was in an envelope signed by only one clerk. After the close of the polls, the election officers, in order to count the ballots, removed them from their envelopes and placed them in piles on a table in the room where the election had been held. The so-called straight tickets, or the ballots voted for all the candidates on the ticket of any one political party, were placed in separate piles and the cut or split tickets were put in another pile. After the ballots had been removed, the envelopes were also placed in a pile on another table. The election officers in counting the ballots rejected 18 of them on the ground that they were not properly marked by the voters, and put them in four unsigned envelopes taken at random from the pile. All other ballots were counted.

There was a dispute before the Superior Court, sitting as the Board of Canvass, with respect to the result of the vote in the Third Election District of the Sixth Ward for the office of Representative in the General Assembly from the Second Representative District in New Castle County, and on the proper steps being taken a recount was had.

The 101 ballots contained in envelopes not signed by both clerks when voted had not been segregated by the election officers and the court could not identify them. They rejected 97 of such ballots and deducted them pro rata from the total vote received by each candidate for the office.¹ 23Of the 18 ballots which had been rejected by the election officers, 9 were counted by the court; but it does not appear whether they had been voted in signed or unsigned envelopes.

The Election Law requires:

(1) That both clerks at any polling place shall “write their full names in ink in the places designated on the envelopes (in which the ballots are to be enclosed when voted), in their ordinary handwriting, and without any distinguishing mark of any kind.” § 1853, Revised Code 1935;

(2) That no Inspector of Election or other officer acting for him “shall deposit (in the ballot box) any envelope upon which the names of the Clerks of the Election * * * do not appear”. Section 1854, Revised Code 1935;

(3) That in counting the votes “any ballot contained in an envelope which is not endorsed with the names of the Clerks of the election as provided in this Chapter * * * shall be void and shall not be counted; * * Section 1859, Revised Code 1935.

But Section 1859 also contains the following provision:

“Provided, however, that such ballots and envelopes and all disputed ballots and envelopes shall be preserved by the Inspector and, at the close of the count, placed * * * in the box into which the ballots shall have been put when read.”

The purpose of that provision, so far as ballots contained in unsigned envelopes are concerned, is clearly for identification when they are sent to the Superior Court in order that the official canvass may be made, though the precise method to be used in segregating them is not prescribed by the statute. Originally, there was a direction in a subsequent paragraph of the section that in counting the ballots voted, each ballot should be “immediately returned to the envelope from which it is (was) taken, and secured therein by a rubber band.” That provision was repealed by Chapter 154 § 2, Volume 46, Laws of Delaware; but its repeal did not affect the general purpose of the proviso of the section.

If the 101 ballots in unsigned envelopes were among those voted for Robert L. Armstrong, their rejection in a recount would change the result of the election for the office of Representative in the General Assembly. Wahl, the relator, claims that as these ballots cannot be separated from the legal ballots cast in the Third Election District of the Sixth Ward, the entire vote of that district should be rejected, and a writ of mandamus issued to that effect. This would result in the rejection of 186 valid ballots, through no fault of the voters. Courts are always reluctant to reject the entire vote of an election district in counting the ballots because of some irregularities committed by election officers unless there is a clear statutory provision requiring it. Winograd v. Coombs, 342 Pa. 268, 20 A.2d 315; Moyer v. Van De Vanter, 12 Wash. 377, 41 P. 60, 29 L.R.A. 670, 50 Am. St. Rep. 900; 18 Amer. Jur. (Elections) § 231; see also Williams v. Sherwood, 51 N. D. 520, 200 N. W. 782. Ordinarily, ignorance, inadvertence, mistake, or even intentional wrong on the part of such officers should not be permitted to disfranchise voters who are innocent of any wrongdoing, if it can be avoided. McCrary on Elections §§ 126, 227, 231; Mehling v. Moorehead, 133 Ohio St. 395, 14 N. E. 2d 15.

In Hamilton v. Marshall, 41 Wyo. 157, 282 P. 1058, 1060, 66 A.L.R. 1154, the court, quoting from Paine on Elections, said:

“In the total absence of proof tending to show for whom illegal votes, sufficient in number to affect the result, were cast, the duty of the court would seem to be to choose, as wisely as possible, between a disregard of the illegality and a rejection of the entire precinct vote.”

See also Simon Election Case, 353 Pa. 514, 46 A. 2d 243. The determination of each case, therefore, depends upon its own facts.

The 101 ballots in envelopes not signed by both clerks, when voted, were illegal and should have been rejected by the election officers in making the count. Tut-hill v. Rendleman, 387 Ill. 321, 56 N. E. 2d 375; Hammond v. Love et al., 187 Md. 138, 49 A.2d 75. As they were not segregated, they could not be identified by the court in canvassing the vote; but that was not due to any acts of the voters. When illegal ballots have been voted in an election district in such numbers as to affect the result, or at least to make it uncertain, and cannot be identified and separated from the valid ballots, there are cases where justice requires that the entire vote of that election district be rejected in making the count. Vigil v. Garcia, 36 Colo. 430, 87 P. 543; Neeley v. Farr, 61 Colo. 485, 158 P. 458, Ann. Cas. 1918A, 23; In re Bright’s Contested Election, 292 Pa. 389, 141A. 254; 18 Amer. Jur. Supp. (Elections) 37; 155 A.L.R. 682. This is particularly true when fraud is alleged and proved. Id.

The cases cited by the relator are largely of that character, and no case, even remotely resembling the facts of this case, is cited.

The statutory provisions requiring the use of envelopes signed by both clerks in voting are among many provisions intended to identify the official ballots and to prevent fraud (Harrington v. Crichton, 53 Mont. 388, 164 P. 537; Slaymaker v. Phillips, 5 Wyo. 453, 40 P. 971, 42 P. 1049, 47 L.R.A. 842) ; but here fraud is neither alleged nor proved. The allegation in the relator’s petition that 101 of the 296 ballots cast in the Third Election District of the Sixth Ward in the Second Representative District in New Castle County were enclosed in envelopes not signed by both clerks does not constitute an allegation of fraud. It is just as consistent with the conclusion that a negligent mistake by the election officers is charged.

Section 1859 of the Election Law does not determine the question. It merely provides for the rejection of illegal ballots, and what steps shall be taken by the election officers to aid the court in making the official canvass. When that and other sections of the statute were enacted, official ballots and the necessary envelopes could only be procured at the polls. So far as the ballots are concerned that rule has been somewhat changed by subsequent legislation ; but there has been no change with respect to the envelopes and the mode of identifying them.

Even in the absence of fraud, there may be cases where the possible injury to the public from the failure of election officers to comply with statutory provisions is so great that the entire vote of an election district will be rejected, without any actual proof of improper results from such failure. That rule was applied in Atty. Gen. ex rel. McCall v. Kirby, 120 Mich. 592, 79 N. W. 1009, and in Tebbe v. Smith, 108 Cal. 101, 41 P. 454, 29 L.R.A. 673, 49 Am.St. Rep. 68. In the Michigan case, the election officers, without any statutory authority, appointed a voter’s assistant. In the California case, while the statute provided that the polls should be opened at sunrise, they were not opened by the election officers until 10:00 A. M. But the facts of this case are quite different and do not bring it within that rule. Moreover, the relator’s contention in this connection made at the argument was that fraud should be inferred from the statement that nearly one-third of all the ballots cast in the district were illegal. That contention has already been considered.

Wahl and Armstrong were candidates for office on the Democratic and Republican Party tickets respectively, and we will take judicial notice that they were the major political parties in New Castle County at the preceding General Election. Under the statutes, the election officers and clerks in the Third Election District of the Sixth Ward were selected from members of each of these parties. Sections 1765, 1853, 1753, Revised Code, 1935; Vol. 45 Laws of Delaivare, c. 144, p. 466, § 11 et seq.

No suspicious circumstances connected with the violation of the Election Law appear.

It is not claimed that the ballot box contained more ballots than the registration books indicated were voted; that any election officer or clerk protested against the use of unsigned envelopes and the counting of ballots contained in them, or demanded that such ballots should be segregated when sent to the Superior Court. Nor does it appear that unofficial envelopes were used by any voters. Under the circumstances, the failure of the intervening defendant to produce any evidence explaining the reason for the irregularities committed by the election officers and clerks seems unimportant.

Furthermore Section 1858 of the Revised Code of 1985 provides:

“All ballots cast at any election shall be counted for the persons for whom they were intended, so far as such intention can be ascertained therefrom.”

We conclude that all of the ballots from which the intent of the voters could be ascertained should have been counted by the Superior Court. Cf. Swift v. Registrars of Votes of Quincy, 281 Mass. 271, 188 N. E. 730. The application of any other rule would often permit unscrupulous election officers to invalidate elections at will.

As heretofore stated the Board of Canvass applied the proportionate deduction rule. While some courts have adopted that rule we do not regard it as logical or satisfactory under the facts presented.

The prayer of the petitioner is denied.

Carey and Pearson, J. J., concur.

1 It is unnecessary to consider why the remaining 4 ballots were not treated in the same way.