State v. Collins , 16 R.I. 42 ( 1887 )

The question before us is whether the proviso in Pub. Stat. R.I. cap. 10, § 11, allows voting in envelopes for city officers as well as those therein designated, if they happen to be voted for at the same election. We do not think the proviso was meant to extend this privilege so as to include voting in an envelope for officers which another part of the statute prohibits. The proviso evidently means that in all elections where envelopes are used, each voter shall inclose in one envelope his ballot for all such officers as may be voted for in that way. The purpose is to prevent double voting for one officer. If two or more envelopes were used, no moderator could know that each did not contain a ballot for the same officer. So, if one were in an envelope and one open, there would be no way to determine whether they were duplicates. Hence the statute means that all ballots which a voter may inclose shall be in one envelope; and then, if there are duplicates, the vote is to be rejected. If the statute were held to mean, as the prosecution contends, that in all elections if an envelope is used all the ballots cast by the voter shall be inclosed, there would be an obvious difficulty in the city of Providence, for example, in case a member of the General Assembly, or representative in Congress, etc., should be voted for at a city election. If, as is customary, only one ballot-box be used, how could it be known whether the envelope of a registry voter contained a vote for members of the city council? Taxpayers could vote for both classes of officers, registry voters for only one class; and yet their envelopes would mingle indiscriminately in the ballot-box.

In an election solely for city officers, it is plain that a moderator could not receive ballots in an envelope, for they would be offered in a manner contrary to law. If then, as we think, the right to vote in an envelope is not changed or extended by the fact that another officer who may be voted for in an envelope is to be voted for at the same time with city officers, ballots for these officers in an envelope are equally illegal, and therefore cannot be counted. But if they cannot be counted, we see no reason why they should be returned. It follows, then, that Pub. Stat. R.I. cap. 10, § 25, under which the defendants are indicted for sending a part only of the ballots, must refer to ballots which can be legally received and counted. This is evident, also, from other parts of the chapter. Pub. Stat. R.I. cap. 10, § 14, requires the moderator or warden and clerk to open the envelopes, count the ballots, and announce the result,¹ and § 15 provides for the rejection of double ballots for the same office. These are illegal ballots, and must be then and there rejected in order to announce the result. For the same reason, other ballots plainly illegal should also be rejected. In doing this, no judicial action is called for on the part of the moderator or clerk. It is simply a matter of inspection. If the ballots do not conform to law, they cannot be received; or, if received without knowledge of their illegality, as in the case of ballots in envelopes, they must be rejected when their illegality becomes apparent. If they do not conform to the law, they are no votes. We think, therefore, that the warden and clerk had the right to reject the ballots for mayor and other city officers found in envelopes, and consequently that they were not bound to return them.

As we understand the second request to charge, it raises this point. It is quite vague, and, taken strictly, the exception based upon the request might, without impropriety, be overruled. In view, however, of the plain question in the case to which this request was doubtless intended to apply, we think the exception should be sustained. The motions to quash were properly overruled, as the indictment states a case under the statute. The facts relating to the votes in envelopes appear only from the evidence.

Exceptions to second request to charge sustained. Otherexceptions and motions to quash overruled.

¹ As follows:

"SECT. 14. After the voting in any town, city, ward, or district, for the officers herein mentioned, or any of them, shall be closed, the moderator and town clerk, or the warden and ward clerk, or the moderator and district clerk, shall, in open town, ward, or district meetings, proceed to open the envelopes and count the ballots; and the moderator shall announce the result, and the clerks of the towns not divided into districts shall give certificates to the persons elected.

"SECT. 15. If any envelope shall contain more than one ballot for the same person, for the same office, or ballots for different persons for the same office, either on the same piece of paper or on different pieces of paper, all such ballots shall be rejected, and not counted."