Herald and news. [volume] (West Randolph, Vt.) 1878-1943, 1907-03-14
ELECTION WAS LEGAL.
Opinion from Hon. w, q. @. Stieknel
Respecting Road Commissioners.

Respecting Road Commissioners.
Considerable controversy having arisen
since town meeting as TO the legality OF
the election OF the two road commissioners
at that time, due to the somewhat unusual
method pursued, the seleesmen asked
Hon. w. Il. Z, stiekney tor an opinion,
which u Is their purpose to abide by. l1
March II, 1907.
To rHE sKLEcrNES or BRrhEL-
Gentlemen;-A your request have
examined the question OF the legality OF
the election of Harry l.. washburn and
Charles III. Dustin as road commissioners
OF Bethel al the annual town meeting OF
1907.
Act No. SIS OF the laws OF 1909 provides
Tor the election at the annual town meet
lug OF zone or two road commissioners
who shah be elected by ballot" The same
act provides that when two road commits
sionefs are elected each "shall have the
same powers, perform the same duties,
aud be subject TO the same liabilities Ia
their respective districts as are now pro-
yided for road commissioners IN their re-
spective towns Zach commissioner is
supreme In his own district. There is no
precedence, ana neither Is subordinate 90
The other. The seleetmen are required TO
divide the town into two highway dis
tricts and spportion to each the money,
tools and mschiner2 required.
At the annual meeting OF 1907, the town
voted To have two road commissioners for
the ensuing year. and then proceeded TO
ballot for road commissioner, and after
two ballots by which no choice was made,
and before the result OF the third ballot
had been declared, the following action
was taken, as APPEARS BY the record, which
l quote;--.'it was unanimously voted that
/ the two candidates h,ving the largest
number of ballots cast for them should be
chosen as elected by ballot a. the two road
commissioners, whereupon the moderator
declared the ballot and that III. l.. Wash
burn, having 81 votes, aud Z. III. Dustin,
having 30 votes, were the two candidates
having the largest number OF ballots cast,
and were duly elected road commission
/ ers." tt
| To be duly elected 1t was necessary that
the candidates should be elected by ballot,
and that each should have majority OF
the votes
The end OF election by ballot Is to secure
to the voter as much privacy in the exer-
else OF his right OF suffrage as he desires. II
/ is that no one shall know what vote an In
diyidual casts unless he is willing 10 have
II known. No one In that meeting cast a
vote for Mr.. Washburn or Mr.. Dustin who
was not entitled TO, and did not have all
the privacy he desired. Each voter APP
preached the ballot box and deposited his
ballot with the name OF the candidate ex-
posed or concealed according to his de-
/ sire.
Mr.. washburn was declared elected be-
cause he was one OF two having the larg
est number OF votes cast for him. The
same Is true OF Mr.. Dustin. Ii cannot be
( said, therefore, that these gentlemen were
not elected by ballot.
! As to whether or not they were elected
! by majority vote, II the rec lrd has any
I significance, it Is, that they were unani-
mousiy elected. As already stated the
offices to be filled are coordinate. There
were two offices to be filed. Ninety-one
voters had severally deposited ballots for
Washburn. Ninety voters had deposited
ballots for Dustin. Every voter knew
what he was about, and that there were
two road commissioners to be elected by
ballot. They al united unanimously in
declaring that the two candidates hav-
ing the largest number OF ballots cast for
sioners, as elected by ballot. This unani-
, nous action OF the meeting must be
treated as valid and effective II it can be
made so.
Judge Cooley in his work on Conshtu-
tional Limitations, in speaking OF claimed
imperfect ballots, says:-"A great consti-
tutional privilege-the highest under the
government lis not to be taken away on a
mere technicality, but the most liberal in
tendments should be made in support of
the electors action wherever the applica-
ton OF the common sense rules which are
applied in other cases will enable US to
understand and render it effectual.n
The question in this case arises: Is
there any doubt as to whether or not the
will OF the meeting, as expressed in its
unanimous vote, was carried out as the
/, law requires !?
The purpose Of the meeting so expressed
was to elect by ballot Washburn and Dus-
tin, the two candidates having the largest
number OF ballots cast for them. Every
voter was seeking to elect two road COM
missioners. Every voter who voted for
Washburn was willing, as declared by the
above oral vote to adopt ballot cast for
Dustin as his own, or, having prevailed in
the election OF Washburn, to abstain
from voting. II, in order to carry out the
expressed intention of the town, it is me-
cessary to construe the action Of the voters
as abstaining from voting for the candi-
date whose name was not upon their bal
lot, then the two candidates were cleo ed
each by majority OF the votes cast. II,
on the contrary, u be construed that the
vote Of the meeting was an adoption by
the voters for the respective candidates of
the ballots cast for the other, then the two
each received majority Of the votes cast.
The law does not require that the voters
should deposit each in person his ballot.
For instance, at the, same meeting the
voters in town school district voted TO in
struct the clerk to deposit one ballot for
all. 1t is therefore my conclusion that
Harry l. Washburn and Charles Ii. Dus-
tin are lawfully elected road commits
sloners for the year ensuing, aud each of
them Is entitled, as matter OF absolute
right, to the Office which the town has
given him.
| Let me add in conclusion that any &C.
tion on the part OF the selectmen tending
to deprive either Of these gentlemen of his
lawfu! right is to be deprecated as being
| very likely to involve the town in litiga-
tion, expensive and profitless, and in
which, l have no question, the judgment
OF the court OF last resort will be against
the town..
| | have not cited authorities in support
OF the propositions above laid down. To
do so would make this communication al
together too long.
Respectfully yours,