State v. Kearn , 17 R.I. 391 ( 1891 )

The respondents urge three grounds of demurrer to the information. First, that the several members of the town council of Lincoln are joined as respondents in the information, instead of its proceeding against each one separately, as for a distinct office. The court is of opinion that this is not erroneous. While undoubtedly the title of a single member of the town council to his office may be inquired into independently of the title of the others, the court sees no sufficient reason why, upon allegations which affect the title of all alike, they may not be proceeded against in one information. They are all members of one body, having joint functions; and even if it appeared that certain members have been properly elected and others not, there is no reason why a judgment of ouster against those who are not entitled to the office may not be rendered. State v. Simpkins, 77 Iowa, 676; Carrico etal. v. The People, 123 Ill. 198; The People v. McFall,124 Ill. 642; Gunton v. Ingle, 4 Cranch Ct. Ct. 438; AttorneyGeneral v. Simonds, 111 Mass. 256; The People v. De Mill,15 Mich. 164; Symmers v. Regem, Cowp. 489; Rex v. Brown, 3 Term Rep. 574, note b; Rex v. Foster, 1 Burr. 573. While these cases do not definitely decide the question now before us, because some depend upon statutes and in others the point was not raised, nevertheless, they show that there is no practical difficulty in dealing in the same proceeding with the title of several officers to their offices as members of the same body. No reason is apparent why each respondent may not justify or disclaim, as each defendant in a civil suit may separately file a plea which sets up a distinct defence or one peculiar to himself.

This information is based upon one ground which is common to all the respondents, namely: that, by reason of the casting of fraudulent votes, none of the respondents was elected, and that the relators received a majority of all the votes legally cast for town councilmen of the town of Lincoln at the meeting held on the first day of June, 1891. This upon its face presents a single ground of inquiry, and is, therefore, not bad upon demurrer.

The second ground urged is, that the casting of illegal ballots does not necessarily annul an election, and that the information is deficient because it does not state that enough illegal ballots were cast to have affected the result. This point is not well taken. The recitals in the information already referred to are quite sufficient to negative the fact of the election of the respondents. Moreover, the rules of pleading in information quo warranto are quite different from the ordinary rules of pleading relative to the statement of a case by a plaintiff or prosecutor. The rule is laid down in High on Extraordinary Legal Remedies, 3d. ed. § 716, that a respondent who seeks to justify must set out his title specially and distinctly; that the people are not bound to show anything, but the respondent must show on the face of his plea a valid and sufficient title, and if he fails to exhibit sufficient authority for exercising the functions of the office, the people are entitled to judgment of ouster. In support of the statement,Clark v. The People, ex relat. Crane, 15 Ill. 213, 217, is cited. See, also, High on Extraordinary Legal Remedies, 3d ed. § 712, note 2, and cases cited.

The third ground of demurrer is, that whatever the facts may be, the town council is constituted the tribunal to determine what are legal ballots and to count them, and that, therefore, such determination and counting by the town council were a conclusive judicial act, which cannot be inquired into in this form of proceeding. This ground of demurrer is untenable. The town council is not a judicial body for all purposes. It has only a limited jurisdiction, specially conferred upon it by statute. In cases within such jurisdiction, where it acts upon its investigation or discretion, its determination is conclusive, except where an appeal is provided. Under Pub. Stat. R.I. cap. 10, it is apparent that the duty of counting votes and announcing the result is a ministerial duty. In many cases it is performed by the moderators and clerks of town-meetings. In towns which are divided into voting districts, where it is impossible to announce the general result, it is provided that the ballots shall be delivered to the town clerk, and that they shall be counted by the town council in the same manner as is prescribed for the counting of the ballots by moderators and clerks of town and ward meetings. This clearly indicates a ministerial duty only, and while, undoubtedly, the town council may reasonably satisfy itself as to what are the ballots proper to be counted, just as a moderator and clerk may do, it does not follow that such an authority and determination is a conclusive judicial act, which prevents an inquiry into the facts upon an information properly brought for that purpose.

Demurrer overruled.

The respondents were ordered to plead on or before June 18, 1891. The respondents filed their answer June 18, and the relators their replication June 25. July 3, 1891.