Wirth v. Fehlberg , 30 R.I. 536 ( 1910 )

The contention of the complainants is, in effect, that the placing of their candidates in nomination was sufficient, without more, to elect them, since no opposing candidates were similarly nominated; and it follows that, if this contention be correct, although every stockholder except the nominator were opposed to each one of these candidates, he could not oppose them effectually unless the names of other candidates were in like manner publicly placed before the meeting, and so their choice is restricted to such candidates only. Obviously a stockholder must vote for B. in order to defeat A. If he merely abstains from voting, or is deprived of the property right of voting on his stock, he does not thereby either defeat A. or elect B. It follows that if but one set of candidates is so nominated, there is no opportunity for a choice or an election of any kind. Candidates so nominated are the appointees of the nominator, and not the choice of the body. Such a construction of a by-law ought not to be adopted, especially to defeat the will of stockholders casting a clear majority of all the votes cast at said election, as is the case at bar. Even in the case of an election to public office it has been held by this court, inState v. Carroll, 17 R.I. 591, which was a proceeding in quowarranto to test the validity of the election of the respondent as mayor of Pawtucket, which was questioned on the ground that the statute required seven days' notice of the election in question and that the notices therefor were posted but one day prior thereto, inasmuch as it appeared (p. 603) "that the electors had full and actual notice of the election on December 5th, and that no voter was in any way hindered or impeded in the exercise of his right of suffrage, and that the result of said election was in no wise affected by the failure to give a longer notice, and that a full and fair expression of the popular will was had at said election; that the respondent received, at said election, 2,150 votes, which number was sufficient, not only to constitute a majority of the votes cast at said election, but also a majority of the votes cast at any of the three elections preceding, and a majority of the highest number of votes cast in the city of Pawtucket at any election ever held therein; and that the result of said election could not have been changed save by the attendance of 1,181 additional voters, all voting against the respondent; and that no election of any other candidate could have been had save by the attendance of 1,599 additional voters, all voting against the respondent and for one of the other candidates," that accordingly there had been a full and fair expression of the electorate and that the election was valid.

Similar considerations may be invoked in aid of the election in the case at bar. No question is made, in any way, as to the conduct of the election in any other respect than the one here before the court. And the respondents have received a clear majority of all the votes cast at said election, the respondent having the least number of votes having received 5,685 votes out of a total of 9,779 represented thereat.

This expression of the will of the majority should be respected.

I concur in the order dismissing the petition.