Keefe v. Donnell

Emery, J. By Act of 1891, c. 102, § 25, as amended by Act of 1893, c. 267, being “an Act to provide for tbe printing and distributing ballots at the public expense, and to regulate voting for state and city elections ” it is provided that after the election is over “when the ballots have been sorted and counted and the result declared and recorded, all the ballots shall in .open meeting be sealed in a package which said package, together with the check lists sealed in the same manner as the ballots, shall be forthwith delivered to the city, town or plantation, clerk to be preserved by him as a public record for six months.” The clerk and all other persons are forbidden to “ abstract from or in any manner tamper with” said packages. At the state election of 1898 the petitioner’s name was on the official ballots in the town of Kittery as a candidate for representative to the legislature. According to “the result declared and recorded” he failed of an election, but he believes that if the ballots had been properly sorted and counted, he would appear to be elected. He desires to inspect the ballots used in that election and which were sealed in a package and returned to the town clerk of Kittery, and are now in his office still sealed up in that package, the six months not having expired. Has he any legal right to inspect them ? It is argued that he can only inspect the exterior of the package, that it is the package sealed and to be kept sealed, and not its contents, which is to be “preserved by the clerk as a public record.” Such a construction would leave the statute without meaning or purpose. The only use suggested in the argument for packages which are to be kept sealed is that they can'be taken into the courts or legislature and there unsealed and sealed again. There is, however, no suggestion in the Act that the packages are to be taken from the clerk’s office, or that an inspection of their contents can be had only by the court or the legislature. The contents of the packages, the ballots, are the concern of the [159] statute. Its language must be applied to them. They are to be preserved. They are to be “the public record,” and their place is in the custody of the town clerk. A record, however, is not public, unless it can be inspected by any person interested in what it shows. It is again urged that the clerk is forbidden to “in any manner tamper with” the package. Taken by itself this language might indicate that the clerk could not open the package, though the word “tamper” in a criminal statute at least, has the limited meaning of improper interference “ as for the purpose of alteration; and to make objectionable or unauthorized changes.” Cent. Diet. Taken in connection with the language of the statute declaring the packages (in their contents) to be public records, it is evident that the clerk is not forbidden to open the packages to enable interested persons to inspect the ballots. We think the petitioner has a legal right to inspect the ballots, a right which the town clerk must accord to him, and that the mandamus must be made peremptory. It does not follow, however, that the petitioner or any one in his behalf can sort or count, or in anyway handle or even touch the ballots. He can inspect them and they must 'be exposed to his inspection, but they are all the while in the custody of the clerk and he is responsible for them. The inspection must be in his presence, and he can make and insist on such regulations or restrictions consistent with the right of inspection, as will secure every ballot like any other record from loss, impairment or change in any respect. The clerk can afterward re-seal the package for greater security until inspection is again required by some person interested. Exceptions overruled.