State v. Kearn , 17 R.I. 391 ( 1891 )

The evidence clearly shows that the one hundred and ten thin or tissue ballots in question in this case, found in the ballot of District No. 1, of the town of Lincoln, at the election for town officers held June 1, 1891, were fraudulently cast. Before the ballot box was opened, the moderator warned the supervisors that they might find bunches of ballots in the box, as he had detected one man in trying to put in such a bunch. After opening the box such bunches were found, and they were laid aside by direction of the moderator and the unanimous assent of the four supervisors and the clerk. It is inconceivable that such ballots should have thus been laid aside, and that the result of the vote, not including these ballots, should have been announced by the moderator, without protest or question by any one of the officers of both parties whose duty it was to see that the count was correct, if there had been any doubt in the minds of the six counting officers, four of whom were Democrats, on whose side these ballots had been cast, that such ballots were not properly in the box. All seemed to be satisfied that the ballots were fraudulent, and that they should be laid aside. After the announcement of the result, the moderator was advised by the town solicitor that he must count the ballots, and thereupon he added them in and changed his previous announcement of the result. A formal return was then made by two of the supervisors of the election setting forth these facts, the correctness of which was certified to by a third supervisor; while the fourth stated that he believed the announcement of the result by the moderator to be correct, without stating which of the two announcements he referred to. In none of the certificates was there a word of denial of the truth of the statements contained in the return, that "such ballots were found in rolls, tightly rolled together, varying in number from five to fifty," and "from all appearances were put into the ballot box at one time." This appearance is explained in evidence by the fact that the ink on the ballots was fresh, which caused them to stick together. The conduct of the four Democratic officers at the time, appointed for the purpose of seeing to the correctness of the ballot and the count, is utterly inconsistent with the claim now made that these ballots were cast separately and properly. During the controversy which followed the advice of the town solicitor, no question was made by any one of the facts as above stated, but only of the duty of the moderator to count the ballots so found and return them to the town council. The testimony of a police constable, in attendance at the count, that he saw one of the supervisors fold up a package of these ballots and pass them to the moderator, without a word of remonstrance or information to any one, on his part, either at the time or soon afterwards, is too much at variance with other testimony, and too incredible in itself, for belief. The evidence of the occasion is too plain to admit of doubt that the condition of the ballots showed they were fraudulently and improperly put into the ballot box. The fact that the check list shows a number of names checked, sufficient to include the now disputed ballots, would ordinarily be strong evidence in favor of their legality. But in this case the check list as counted on the night of the election did not show such a number, but more than one hundred and fifty less. This count seems to have been carefully made; the number of checks under each letter and each division under a letter being noted at the foot of the column. It is now contended that this count was erroneous, because the list now shows more names checked. We do not feel satisfied that this is so. Additional marks may easily have been made upon the list since the election, and it is hardly probable that so large a number would have been overlooked. Moreover, the singular coincidence that errors, if any were made, must in every one of the numerous divisions have been made in undercounting and not one in overcounting, and that the marks now shown are just two more than enough to account for the fraudulent ballots, as though they had been cast separately, compels more than a suspicion of the present integrity of the list. But whether the list has been changed or not, the presumption of its correctness is overborne by the official written report, acquiesced in by all the officers, setting forth that the ballots were apparently put into the box at one time.

It further appears that these ballots were enough to affect the result of the election, since without them, it is admitted, the respondents did not receive a majority of the votes legally cast. It follows, therefore, that the respondents were not legally elected as the town council of the town of Lincoln, and that judgment of ouster must be entered against them.

In addition to the judgment of ouster, the court is asked to impose a fine upon the respondents on account of improper conduct on their part.

It appears that the legality of these ballots was immediately questioned; that a written request was made to the town council counting them that said ballots be preserved, and that said town council voted not to destroy them; that on June 4, 1891, the day on which this information was filed, the respondents, acting as a town council, and after they had reason to know their title to office was to be contested, voted to destroy the ballots, and they were thereupon destroyed. Such a vote, under the circumstances, was manifestly improper, and the excuse offered for it is by no means adequate. It is urged that, as some of the ballots had been used by members of the council to figure upon, and one had also been used by a reporter, there was no certainty of the integrity of the ballot as a whole. But the evidence shows that only nine had been so used; eight of which were immediately returned, and one only could be missing, if, indeed, that was. The conduct of the respondents in destroying the ballots is not only open to the inference of improper motives, but is plainly a disregard of the good faith and fair dealing which should always be observed in such cases. Evidence which may affect the result of the action of the people at an election should be scrupulously guarded and impartially presented for the determination of the right. The destruction, with unseemly haste, after notice and without adequate excuse, of evidence upon which the title to an office is founded, is inconsistent with a bond fide justification of a right to the office, and is contrary to the interests of the public. While, therefore, we feel compelled to say that the conduct of the respondents in this regard was highly improper, we do not, on that account, feel authorized to impose a fine in this case. The history of the remedy quo warranto, see 3 Blackstone's Comment. *262, *263, and Short on Informations, *110, *111, n. 1, shows that it was originally a civil proceeding by writ of right for the crown; but afterwards, in the time of Edward III., or later, in order to obtain a speedier process, this form fell into disuse, and the proceeding by information was substituted. Of this latter form Blackstone says: "This is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him or seize it for the crown; but hath long been applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor; the fine being nominal only."

Mr. Heard, in the note cited above, says that long before our Revolution it lost its character as a criminal proceeding in everything except form. Prior to the statute of 9 Anne, cap. 20, the remedy only extended to encroachments upon the royal prerogative. High on Extraordinary Legal Remedies, 434. That statute extended it to usurpation of municipal offices and corporate franchises, and authorized the imposition of a fine. In some States the statute of Anne has been recognized as a part of their system of laws, and in others special statutes have been passed. We are not aware that the statute has been so recognized in this State, and it was not named among the English statutes declared to be in force in this colony in February, 1749-50. The only case which seems to recognize it, although not expressly so, is State v. Brown, 5 R.I. 1, in the closing sentence of which the court say: "As there is no pretence of improper motives the nominal fine of ten cents only will be imposed."

The implication here is, that if improper motives were found, a larger fine might be imposed. But there was no discussion of the question in the case, and no authority for the imposition of the larger fine is stated. There are oases in other States, e.g.People v. Rensselaer Saratoga R.R. Co. 15 Wend. 113; AttorneyGeneral v. Salem, 103 Mass. 138, where the dictum of judges may be found, to the effect that the judgment is ouster and fine, but an examination of numerous cases discloses no instance of the rendition of such a judgment, except in oases where a statute specially authorizes the imposition of a fine. Considering the remedy, as it is now generally regarded, as practically a civil remedy, we do not think the court, in the absence of statutory authority, is justified in imposing a fine. Even the nominal fine spoken of by Blackstone is now generally disregarded. See form of judgment in Commonwealth v. Fowler, 11 Mass. 339, and note toPeople v. Richardson, 4 Cow. 97, 100; High on Extraordinary Legal Remedies, § 633. This may well be so, since such a fine is but the dim shadow of the criminal nature of the proceeding.

Let judgment of ouster be entered, together with the costs of this information.