Morning journal and courier., 1892-09-28
orro waRRANro DECISION.


rhe Republican Position Fully VIM
dicated-Neither Phelan nor Sanger
Elected-Judge Morris Majority,
Therefore, Fictitious-Double Bal
lots Sho uld be COunted-Also Bridge
port and Other Ballots which Were
Rejected without Cause-Ballots
Honestly Cast Should be Counted
The Dissenting Opinion.
At II a. m. yesterday the judges of the
upreme court fled opinions in the case of
'helan vs.. Walsh and Sanger vs. Henry.
The majority opinion is signed by Judges
Andrews and Torrance. The
dissenting opinion is signed by Judges |
Fem and Seymour. The result is big |
victory for the republican cause.
The majority opinion in the Phelan-
Walsh and anger-Henry cases, which is |
printed in full below, was written by Judge
Carpenter.
Attorney W. H. Ely said yesterday, in
reference to the opinion: "The opinion
entirely wipes out Mr.. Phelan's alleged
and as Mr.. Phelan's case was the
strongest one the democrats had Mr..
Sanger, of course, has no case. This
shows that Mr.. Phelan did not have ma
jority and settles the whole thing. The
superior court ia advised that the ballots
rejected by the moderators giving no reason
therefore, and those rejected for being
double. should be counted in estimating
the whole number of votes cast
"There were 500 of these double ballots
and after taking out the prohibition bal
lots Phelan claimed majority of 420.
The 500 double ballots, which the court
says should be taken into consideration,
more than wipes out Phelan's majority.
Beside these there are the 1874 Bridgeport
ballots, which the court rules should be
counted. The court has sustained the re-
publicans right straight through"
The Supreme Courts Finding.
THE SECRET BALLOT LAW.
The court announced that it first consid-
cred those questions involving the con-
struction of the act of 1889 relating to
elections known as the sscret ballot act. 1t
gives its reasons therefor, first among
which was that the definition as to the
construction of that act was of immediate
practical importance in view of the sp-
preaching elections; and secondly If by
such consideration it is shown that no one
has majority of all the votes legally cast
at the election in 1890, for either of the
offices in dispute, both cases will be prae-
ticslly disposed of by the facts, and must
necessarily be dismissed, and we shall be
relieved of the necessity of considering
and determining some grave questions of
constitutional law.
THE COURT THEREFORE, PASSES BY
without discussion the questions ~ wheth-
er the general assembly lost it's power to
declare the result of the election on the
second day of it's session; (2) if not wheth-
er since that day, from any cause what
ever, it has lost that power; and (3) wheth-
er in any event the courts have, or can
have, under the constitution any jurisdic-
ton over that matter. We purposely re-
frain from expressing any opinion upon
one of these questions, and wish to have it
distinctly understood that they remain
open questions.
THE OFFICIAL RETURNS.
The court now proceeds to consider the
returns, both those made to the board of
canvassers and the statutory returns.
The court heldAthat the lower court
erred in rejecting the eleven ballots in the
town of Branford and one each in Hart
ford and Middletown that were rejected,
the lower court holding that they could
not be considered as affecting the count of
the vote for secretary of state.
Under plurality rule it is material only
to count the votes of tho two highest can
didates. All scattering votes are practi-
cally disregarded. Under the majority
rule all scattering votes are important and
must be counted.
REJECTED VOTES.
In this proceeding they were rejected be-
cause it did not appear for whom they
we're cast, or that they were, in fact, cast
for any candidate for the Office under con-
sideration. We are inclined to think that
that was not sufficient reason for disre-
garding them. It will be borne in mind
that this is a judicial proceeding for the
purpose of ascertaining whether the re
lator received majority of all of the votes
lawfully cast for the Office he now claims
l in November, 1890, and whether he should
have been declared elected in January,
1891.
SHOULD HAVE BEEN COUNTED.
The court added: 1t is very clear that al
that time, and at the time when the ballots
were in existence, they should have beer
l included in the whole number of votes cast
Ia it not equally clear that the same rule
should prevail now9
WHERE THE RESPONSIBILITY LIES.
We have not overlooked the fact thai
considering these votes now will result, in
effect, in counting them against the re-
lator. It may be said that this Is hard
ship that the courts ought to avoid. But
| the hardship Is more apparent than real
There can be no legal hardship in show
ing that a man is not constitutionally
elected to an Office. If these votes can
not now be considered in determin
ing the whole number Of votes cast, i
will inevitably operate to the prejudice
of others. 1t will certainly disfranchis'
all these voters And that is a politica
evil Of no small magnitude, to say moth
be deprived of the Office. But whateve
hardship there is in fact is a hardship
that the court does not cause, and it i
in nowise responsible for it, The re
sponsibility lies at the door of anothe
tribunal.
WHOLLY OMITTED.
The law requires that the cause of tn
rejection of ballot "shall be state'
specifically in the certificate" The dut
was wholly omitted. The act of rejection
is illegal on its face. There can be no pre-
sumption to sustain an illegal act.
A majority of the court is of tho opinion
| that these votes should have been includ
ed In the whole number of votes cast
There were in the state 500 ballots rejecte
''for being double"
THE LOWER COURT ERRED.
The court cited the finding of the lowe
court, which in summing up said:
therefore find that sos ballots 60 re
jected by the moderator in said town
were properly rejected and excluded iron
| the count, and that one ballot was impror
erly rejected, and should be counted TO
| Mclean for secretary.
The same finding, with change of names
is in the other case.
Proceeding the supreme court says: W
cannot resist the conclusion that tn
court below took mistaken view of tn
law.
WHERE THE BURDEN OF PROOF RESTS.
After an examination of the case in poin
the supreme court adds: Thus it seems
us very clear that the burden of proof t
show the legality of rejecting these ballot
| rested on the relator. If so, the court wa
clearly wrong in holding upon no othe
evidence than the face Of the certificate
that the ballots were illegal, and wer
properly rejected.
IT we are right in our view of the la,
land of that we entertain no doubt an
of our Interpretation of the ballots re
jscted, ''for being DOUBLE" then clearl
these ballots should have been counted
But if it be claimed that rejected ballot
mean something different from what "
have supposed, then we think it is reason