State ex rel. Willoughby v. Gates

Park, C. J. At the annual election of members of the common council of the city of New Haven in October, 1875, the defendant received three hundred and eighty-five ballots for councilman of the fourth ward of the city, and the relator, in his proper name of Alvin L. Willoughby, received three hundred and eighty-three ballots for the same office, and there were thirty-five other ballots cast with the name of Alvin J. Willoughby upon them. If these thirty-five ballots had been counted for the relator, he would clearly have received a majority of all the ballots polled in the ward for councilman of that ward, and would have been elected. It is alleged in the replication to the answer of the defendant, that these bal [538] lots were intended to be cast, and were cast for the relator, by the name of Alvin J. Willoughby, and that justice and right required that they should be counted for him. The demurrer to the replication admits these allegations to be true; and the question is, does the policy of the law, or the spirit of the constitution, prevent the court from allowing these votes for the relator, in determining the question whether or not he was elected to the office of councilman. If a similar question could arise in relation to any thing else than voting by ballot to fill a political office, it would seem as if there could be little doubt about the matter. And even in such cases it is an every day occurrence in legislative assemblies to count such votes in contested elections, when it appears that they were cast for one of the contestants, under a misapprehension in regard to his real name. It would be an easy matter to determine whether any elector in the fourth ward bore the name of Alvin J. Willoughby, for the names of all electors are found on the registry lists provided by law; and even if the names of some electors should have been omitted from the list by mistake, still, in a district so limited in territory and population it could not be difficult to ascertain this fact. If no elector in the ward bore that name, or bore it with the exception of the second initial, the conclusion would be irresistible, that the ballots were intended to be cast for the relator under the supposition that Alvin J. Willoughby was his name. In such a case, one could not entertain a doubt on the subject, for it must have been so, or else the freemen cast their ballots for a mere name and for a person not in existence. We are unable to see how the policy of the law, or the spirit of the constitution, can be regarded as forbidding such enquiries as these, which, if they result in showing that no other person can' be found to whom the ballots can apply, settle the question in every man’s judgment without in the least degree violating the secrecy of the ballot. But it is said by the defendant that the replication does not negate the existence of any elector of the ward by the name of. Alvin J. Willoughby, and that therefore the court must [539] assume that there was such an elector; in which case the allegation of the replication that the ballots were cast for the relator by the wrong name are not sustained, inasmuch as ballots cast for Alvin J. Willoughby, there being such a person, cannot be counted for Alvin L. Willoughby, whatever may have been the intent of the electors in casting them. We are not now considering whether the relator can prove the allegations in his replication. When the proper time shall arrive for the consideration of that question, the court will see to it that he proves his allegations by proper evidence. It is enough for the purposes of this case that the demurrer admits the allegations to be true. It would seem to follow, however, if the truth of the allegations is necessarily connected with the non-existence of any elector of the ward by the name of Alvin J. Willoughby, that the demurrer, admitting all the allegations of the replication to be true, thereby admits that there was no such elector to whom the ballots could apply. We have shown how the allegations of the replication can be proved without disturbing public policy, or invading the secrecy of the ballot, or encountering any of the objections raised by the defendant. It is shown that these ballots were intended to be cast, and were cast, for the relator, when it is shown that no other elector existed in the ward to whom they could apply. We think this clear, and the replication therefore sufficient. The authorities on the subject are uniformly in accordance with these views, with the exception of those in the state of Michigan. There, in a recent decision holding the contrary doctrine, the court was divided, but the majority expressed their regret that the rule had been established as it was, but they felt bound to follow it. People v. Cook, 8 N. York, 67; Carpenter v. Ely, 4 Wis., 420; People v. Ferguson, 8 Cowen, 102; People v. Pease, 27 N. York, 45; Erskine v. Davis, 25 Ill., 251; Miller v. The People, 39 Ill., 458. We advise the Superior Court that the replication is sufficient. In this opinion the other judges concurred; except Carpenter, J., who did not sit.