State Ex Rel. Scofield v. Starr

No question is made as to the form of the demurrer, which is directed to the allegation that the blank ballot was innocently and ignorantly cast by a member of the common council; and we do not consider questions neither specifically assigned as error nor referred to in argument.

The appointment of an officer once made cannot be revoked by the appointing power, unless permissible under the power of removal. This is true of appointments made by a single executive, an executive board, a court, or a legislative body or board. But until the appointment is made the manner of its expression is within the control of the appointing body. It is manifest that the will of an executive may be expressed in a manner different from that of a court or a legislative body. Wherever the appointing power is vested, the exercise of discretion in the manner of making and completing the appointment may be affected by the particular law by which it is authorized. The law may direct how an executive may make an appointment, and so it may direct how a legislative body may make an appointment. When this is done, the law controls; but within the limits of the direction, the executive exercises discretion in a manner appropriate to executive action, and the legislative body in a manner appropriate to the action of such body. When an appointment is vested in a legislative body with direction to make its choice by ballot, the appointment can be made only by ballot; but in the manner of taking the ballot, and in all other matters relating to the completion of the choice, the body proceeds as a legislative body having the discretion and powers (subject only to the limitation) belonging to such body. The direction that a legislative body shall proceed by ballot does not change the appointment into an election, as that word is used to express a choice of an officer by the people, or by an indeterminate and changing class of voters. The rules applicable to a popular election are not applicable to an appointment or election of an officer by ballot by a legislative board, such as the common council in this case, unless indeed the conditions peculiar to the latter call for the application of similar rules. Our legislation, in the establishment of city governments, speaks indifferently of the selection by the municipal legislature of officers as a "choice," "appointment," or "election." We think the Bridgeport city charter, in authorizing the office of city surveyor, has vested the power of appointing that officer in the common council, proceeding in a manner appropriate to a legislative body, and subject only to the direction that the choice shall be by ballot, upon which ballot a plurality of votes shall express the will of the body. When a legislative body expresses its will by ballot, its act is not complete before the result of the ballot is ascertained and made known. When this is done, and it appears clearly from the announcement of the state of the vote that the number of ballots requisite to an appointment has been lawfully given for one person and no further action is taken, the will of the body is finally expressed and the appointment is complete. It is not lawful afterward and without any reason to revoke such an appointment and appoint another person. State ex rel.Coogan v. Barbour, 53 Conn. 76.

In the present case the result of the first ballot was made known to the council (as alleged in the State's replication) as follows: There are more ballots than members voting, thirteen ballots are cast for Scofield, eleven ballots for Starr, and one blank ballot. Such announcement could not complete the action of the council; there was something more for it to do: the exercise of discretion and power. It could accept that result as electing Scofield, or it could continue to ballot until a result was reached free from the suspicion arising from the casting of more ballots than there were persons voting. It is true that a blank ballot, where all the ballots are lawfully cast, can have no effect under the plurality rule upon the result. But where more ballots are cast than there are persons voting, the fact that one is a blank ballot does not repel the inference of fraud or mistake in the vote, and that inference, arising lawfully and reasonably from the state of the vote as made known to the council, justifies the exercise of discretion in taking another vote participated in by all the members. We are referred to no reported cases precisely analogous. Upon principle it seems to us clear that the common council, upon discovering that more ballots, including one blank ballot, had been cast than there were persons voting, had the power to exercise its discretion whether to make an investigation then and there, which might require each member to declare how he voted, or to assume that the evident irregularity was harmless, or to exclude all suspicion of fraud by allowing each member to again cast his ballot; that in pursuing the latter course the council reasonably exercised its power as a legislative body in expressing its will by ballot; that this course was properly taken by each member participating in another ballot; and that having thus exercised its discretion, the process of appointing or electing a city surveyor by ballot was not completed until the result of the ballot appointing the respondent was ascertained as admitted by the pleadings.Baker v. Cushman, 127 Mass. 105; State v. Phillips, 79 Me. 506;Wood v. Cutter, 138 Mass. 149.

It follows that the allegations of the replication stating facts tending to show that the blank ballot was ignorantly and innocently cast and was harmless, and alleging that in fact the twenty-four aldermen and no others cast the ballots received, were immaterial. The decisive question was not whether an appointment under the first ballot would have been valid if no further steps had been taken after the announcement of the state of vote upon that ballot, but whether the council had the power, upon that announcement, to take another ballot. The trial court correctly held, upon the facts admitted by the pleadings, that the council had this power; that it was reasonably exercised; and that the appointment or election by ballot was not completed until the ballot upon which the respondent received a plurality of votes was taken and the result announced.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.