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OPINIONS UPON APPLICATIONS

FOR LEAVE TO FILE INFORMATIONS IN THE NAME OF THE

ATTORNEY-GENERAL.

ATTORNEY-GENERAL V. CHARLES C. SPEARE et als. Election Precinct Election Officers Misconduct Attorney

General. Where, at an election in a town divided into precincts for voting purposes,

the election officers in two precincts, before any vote was cast, unlawfully entertained and declared carried motions to adjourn the meetings, and, without regarding the protests of qualified voters present and desiring to vote, adjourned the meeting and carried away the ballot boxes, but the remaining precincts proceeded with the election and filled the offices named in the warrant, the misconduct of the election officers in the precincts where meetings were adjourned does not invalidate the election legally held in the remaining precincts of the town; and if there was a regular and proper expression of the public choice in the precincts where voting took place, the candidates so

chosen and the questions so decided must be accepted. The Attorney-General will not sign an information against certain respond

ents alleged to have been illegally elected to office at a town election, where there are no other claimants to the offices held by such respondents, and it appears that, notwithstanding the illegality alleged, there has been a legal and proper expression of the choice of the voters of such town upon the questions presented in the warrant for such election.

APRIL 29, 1903. This was an application to the Attorney-General for the filing of an information against certain respondents alleged to have been illegally chosen to the several town offices in the town of Templeton. The petition sets forth, and the allegations of fact are not controverted, that a warrant for the annual town meeting for the year 1903 in the town of Templeton (which, for voting purposes is divided into four precincts) was duly issued by the selectmen and was properly served ; that, under the provisions of such warrant, the qualified voters of the town were notified to meet in their respective precincts on March 2, for the election, on one ballot, of the following town officers : town clerk, one selectman for three years, treasurer, tax collector, tree warden, two auditors, and seven constables; and also for the purpose of voting, by separate ballot, yes or no in answer to the question, “ Shall licenses be granted for the sale of intoxicating liquors in this town?The warrant further provided that the polls should be opened at 8 o'clock in the forenoon and might be closed at 2 o'clock in the afternoon; and due notice was given of a second meeting, to be held in a central place, on March 7, to act upon the remaining articles contained in such warrant.

After the opening of the town meeting of March 2, motions were entertained in precincts 1 and 2 to adjourn the meeting of such precincts to April 6; and in spite of protests made by certain of the qualified voters thereof, the meetings were in consequence adjourned, and the election officers refused to receive any ballots, and removed the poll boxes. It is further alleged and admitted that by this action of the election officers some of the legal voters of such precincts were deprived of elective franchise.

The votes cast in precincts 3 and 4 were, however, duly counted, and the officers named in the warrant were declared duly elected, and the vote of the town upon the question of license was declared to be: "No, 161; yes, 168.” It appeared at the hearing that all the requirements of law were complied with in precincts 3 and 4, and that, if the full vote of precincts 1 and 2 had been cast, it would not have affected the result except in the matter of license, upon which question it was admitted that such vote might have been material.

There were at the time of the election no contestants for the offices now held by the respondents, and such officers were, with one exception, duly elected to the positions which they now hold, at the town meeting of the previous year.

Revised Laws, c. 11, § 213, provides in part that:

In towns, at the election of state and town officers, the polls may be opened as early as six o'clock in the forenoon and shall be opened as early as twelve o'clock, noon, and shall be kept open at least four hours, and until the time specified in the warrant when they may be closed; and they may be kept open for such longer time as the meeting shall direct, but they shall not be kept open after the hour of sunset. At annual town meetings they shall be kept open at least one hour for the reception of votes upon the question of licensing the sale of intoxicating liquors.

It cannot be doubted that the action of the election officers in precincts 1 and 2 was a clear violation of this section, for which they are liable in a criminal prosecution, and probably also responsible civilly, if, by their action, any legal voter is deprived of his right to exercise the franchise. But the misconduct or fraud of officers who are charged with the conduct of an election does not necessarily result in invalidating the whole election. It is a wellestablished principle of law that the misconduct of election officers or irregularities in the method of conducting an election will not vitiate such election unless it appeared that the result was thereby affected. See Major v. Barker, 99 Ky. 305, etc. Nor will the fact that the requirements of law with regard to the opening and closing of polls have been disregarded, be sufficient of itself to invalidate the election, in the absence of evidence that the result was thereby materially changed or affected. Fry v. Booth, 19 Ohio St. 25; Cleland v. Porter, 74 Ill. 76; Du Page County et al. v. People ex rel., 65 Ill. 360.

If, therefore, the sole question presented by the petition in this case was as to the legality of the election of the respondents, there would be no good and sufficient reason for action upon the part of the Attorney-General. It may be assumed, however, upon the evidence presented, that the vote of precincts 1 and 2 could have materially affected the action of the town upon the question of license; and for this reason it is necessary to consider whether the irregularity of the officers of those precincts will render invalid the whole election in the town of Templeton. No allegation of fraud or collusion is made in the petition, and it may be assumed that the motion to adjourn was made in good faith, and that the adjournment which resulted was in accordance with the wishes of a majority of the voters present at the time, although clearly illegal. Such adjournment would not of itself, however, invalidate an election subsequently held within the time required by law, in such precincts. See People ex rel. v. Brewer, 20 Ill. 474. But the removal of the ballot boxes in such precincts by the election officers and the refusal thereafter to receive votes, by which a subsequent election was prevented, constitutes a violation of the Revised Laws, c. 211, $ 213, and it is contended by the relator that this illegality vitiates the whole election in the town of Templeton, notwithstanding the fact that the elections held in the remaining precincts were regular, and the officers elected thereat were duly certified and returned in compliance with law.

If this contention is sound, it would follow that any misconduct or irregularity on the part of election officers in a single precinct in the conduct of an election, which affected the result, would vitiate not merely the vote of such precinct, but would render null and void the whole election, notwithstanding the fact that a great majority of the voters taking part therein had legally and properly signified their choice.

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The principle contended for by the relators has nowhere received the sanction of authority.

In Knowles v. Yeates, 31 Cal. 82, where in a county election a question arose as to the legality of the votes of four precincts, the vote of such precinct was rejected, but the election was not invalidated. See, also, Tebbe v. Smith, 108 Cal. 101.

In Major v. Barker, 99 Ky.,305, the contention of the contestant was that the whole vote of a precinct should be thrown out by reason of the misconduct of an election officer, but no question was raised as to the validity of the election. See, also, Fry v. Booth, 19 Ohio St. 25; Du Page County et al. v. People ex rel., 65 Ill. 360, etc.

I am opinion, therefore, that, although the votes cast in certain precincts must be rejected where it appears that, by reason of the misconduct of the election officers, the result of the election has been materially changed or affected, such misconduct cannot be deemed to vitiate the whole election ; and if there has been a legal and proper expression of the public choice in other precincts, the candidates chosen or the questions decided thereat must be accepted. Nor does the fact that the election officers in precincts 1 and 2 refused to receive any votes therein, distinguish in principle the present case from one where a vote is cast and afterwards rejected by reason of some irregularity or informality. See Knowles v. Yeates, 31 Cal. 82.

Upon the foregoing facts and for the foregoing reasons, therefore, I am of opinion that no public purpose can be served by this information. There has been what, in my opinion, constitutes a legal expression of the choice of the people of the town of Templeton upon the question of license; and, to the offices held by the respondents, there appear to be no claimants whose rights might be defeated or lost by failure to file this information. I am, therefore, of the opinion that it is the duty of the AttorneyGeneral to refuse the application.

HERBERT PARKER, Attorney-General.

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Frank M. Forbush, for the relators.
Thomas W. Kennefick, for the respondents.

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