We cannot concur in that portion of the opinion of the majority of the court which holds that the Superior Court, in ascertaining the whole number of votes cast for secretary at the election of November, 1890, should have counted the five hundred and nine ballots which the evidence of the counters' returns and moderators' certificates shows were rejected and excluded from the count for being double.
It was the duty of the relator, under the allegations of his information, to prove that he received a majority of the votes cast at the election. In discharge of that duty it is found that he introduced "the evidence of the sworn officials who actually made or participated in the count of the ballots in the several election districts of the state, together with the counters' certificates made immediately after the completion of the count in duplicate, and agreed to and signed by the counters participating in the count, and filed with and indorsed by the moderators of the electors' meetings in the several towns, and by them deposited, one in the ballot-box and one with the town clerk of each town, to be kept on file pursuant to section 237 of the General Statutes." *Page 299 It is further found that "this evidence was further supplemented by the moderators' returns and certificates of the vote for secretary, and at least by the evidence of one witness in each case who participated in the count and declaration of the vote in open meeting, and who testified that the figures for the different candidates for the office of secretary, as shown in the tabulated statement attached to the finding, were either agreed upon without question by the sworn counters who participated in the count, or, if there was a question in regard to whether certain ballots should be counted, are the figures which the moderators in the several towns or districts determined in the exercise of their discretion under the law, and are the figures which were declared by said moderators in open meeting without question by those present at the time of said declaration."
The evidence of the counters' returns and moderators certificates shows, among other things, that there were in all 509 ballots rejected and excluded from the count in the different towns for being double.
The finding states that "the defendant claimed that the burden was on the relator to show by evidence outside of said returns that said rejected ballots were legally rejected by said moderators, and that otherwise the court should find that said ballots were not legally rejected, and count the same for the purpose of estimating the total number of votes cast. In no case, except in the single instance of the town of Enfield, did it appear for whom said rejected ballots had been cast, or that the name of either candidate for secretary was upon any of the ballots so rejected. The court overruled the defendant's claim, and declined to count said ballots so rejected as double, except the ballot in the town of Enfield, hereinafter referred to. No evidence was offered to show that all of said ballots were not for different persons for the same office, and that said ballots were not therefore double ballots within the meaning of the law, and no evidence was produced before the court to show that for any reason any of said ballots were improperly rejected, except one ballot in the town of Enfield. In Enfield two *Page 300 straight republican ballots, each bearing the name of George P. McLean for secretary, were found folded together in the same envelope. The moderator decided that both ballots should be rejected. This was an error. By the provisions of section 9, chapter 247, of the public acts of 1889, one of said ballots should have been counted and one rejected. I therefore find that 508 ballots so rejected by the moderators in said towns were properly rejected and excluded from the count, and that one ballot was improperly rejected, and should be counted for said McLean for secretary."
We think that the ruling of the Superior Court in this behalf was correct. Upon general principles there is, of course, no reason for requiring the relator to justify in advance the rejection of the 509 ballots by evidence outside of the returns, which docs not equally apply to the Bridgeport ballots, and, indeed, to all the other rejected ballots which were in dispute and which the finding states that the defendant, after the relator had rested his case, produced evidence to show were improperly rejected and should have been counted for the defendant.
The conclusion that evidence outside of the returns is necessary in respect to the 509 ballots before such returns become even primâ facie evidence, is based upon the claim that the statement of the respective certificates that the ballots were rejected "for being double" is not a sufficient statement of the reason for their rejection, and that therefore they stand precisely as if no reason for rejection had been stated. It seems to us that any careful examination of the statutes, as they were before and after the election law of 1889 was passed, will show that such claim has no foundation whatever to support it. The law which was in force when the act of 1889 concerning elections was passed, defined a double ballot as consisting "of two or more pieces of paper upon which are duplicated or repeated the names of one or more candidates for the same office." It provided that no double ballot for the same office should be counted and that if any ballot should contain a greater number of names for any office than is provided by law, it should not *Page 301 be counted for any person for such office. The act of 1889 provides that "if more than one ballot for the same office shall be found in any envelope, and such ballots shall be for the same person, only one shall be counted; and if such ballots shall be for different persons for the same office, neither of such ballots shall be counted."
The law requires that the moderators of the respective meetings "shall decide, in case of doubt or dispute, as to the reading of a ballot, or whether a ballot should be rejected as double or for any other cause: that all ballots rejected for being in the wrong box, for being double, or containing an excess of candidates, or for any other cause, shall * * * be preserved in a separate parcel * * * and returned to the box with the valid votes." The law further requires the ballot-boxes to be locked and sealed after the ballots are counted and returned to them, and to be carefully preserved with the seal unbroken for six months, except in case of an official examination.
It is the duty of the respective presiding officers of the electors' meetings to send to the secretary, with the certificate of the result of the electors' meeting which he is required to send by mail, his certificate also of "the number of ballots in each box not counted as in the wrong box, and the number not counted for being double, and the number rejected for other causes, which other causes shall be stated specifically in the certificate."
Such being the law, it appears that in the state 509 ballots were rejected by the several moderators as being double, and a proper certificate was returned to the secretary to that effect. The finding states that the ballots used at the election were kept in the several towns, in the ballot-boxes, for the six months after the election, as required by law, and after that time, except in fifteen towns named, the boxes were opened and the ballots generally destroyed, or so manipulated as to be of no value for the purpose of ascertaining their number.
The finding states that no claim was made that a reexamination of the ballots, in any of the ballot-boxes of the *Page 302 fifteen towns in which they had not been opened and the ballots destroyed or manipulated, would, in any particular, vary or change the result of the count or state of the vote, as shown by the counters' evidence and returns and the moderators' certificates, except in the towns of Bridgeport, East Lyme and Thompson, and in those towns upon other points than the double ballots. The court therefore saw no reason to open, and did not in fact open the boxes except from these three towns, although the boxes from all the fifteen towns were in court and the relator made the general offer to have them all opened.
The statute (General Statutes, § 237,) requires the counters to deliver to the moderator immediately after the count is completed, "a certificate in duplicate stating the whole number of ballots found in their box, the number of ballots rejected because in the wrong box, the number rejected as double, the number rejected for any other reason, and the number of votes counted for each candidate and office respectively." This is a clear and explicit statement of what the certificate shall report in respect to rejected votes. If rejected for being double the certificate shall so state. So if rejected for being in the wrong box, and if rejected for any other reason, that reason shall be slated. "Rejected as double" is the formula which the statute itself provides when ballots are rejected for being double.
The requirement that the number of ballots rejected "for any other reason" than the reasons already stated, necessarily implies that certain reasons have been already required to be stated when they exist, and that they are reasons which, when stated in the terms of the statute, fulfill its requirements. In short, the statute treats "for being double" as a sufficient reason to be stated in the certificate, and, in terms, requires it to be given as the reason when ballots are rejected, not for being in the wrong box nor for any other reason. The provision, in section 210 of the statutes, requiring that, when the ballots shall be rejected for any other cause than for being in the wrong box, or for being double, such "other cause shall be specifically stated," shows that *Page 303 "for being in the wrong box" and "for being double" are regarded in the statute as being specific statements of the cause of rejection. What better could the moderators do than follow the plain instructions of the law? Was it for them, in each instance of rejection, to add to its requirements, and state whether it was a case where more than one ballot for the same office was found in the envelope, or a case where more than one ballot was found for different persons for the same office, any more than it would be their duty to state into which of the wrong boxes a ballot, rejected for being in the wrong box, was placed when, as at a town election, more than two boxes were used?
To so hold seems to us to do violence to the ordinary rules of statutory construction, and to make the law a snare to catch moderators: the statute instructing them, in explicit terms, to do one thing, and the courts, by a construction of those unambiguous directions, requiring of them to do other things in addition, upon the penalty of otherwise defeating the election.
It is certain that when the secretary, acting pursuant to section 241 of the statutes, transmitted to the town clerks of the several towns, before the biennial electors' meeting in 1890, blank forms for the returns required to be made, such was not the construction placed upon the law by that official; for the record discloses that all those forms contained "for being double," as the ground of rejection to be stated in the returns when it existed.
That this fact should have some weight in the construction of the law is manifest. In Fields v. Osborne,60 Conn., 551, this court gave weight, in determining upon the validity of the "for" ballots, to the fact that the secretary, in an unofficial notice, sent to every postmaster, town clerk and chairman of democratic and republican committees, a form of ballot containing the word "for" before the title of every office named therein. Contemporary construction of the law by those whose duty it is to act under it has ever been regarded as entitled to consideration.Yudkin v. Gates, 60 Conn., 429, and cases therein cited. Again the *Page 304 statute, in section 241, not only requires the secretary to transmit forms for returns, but it also expressly requires that "said returns shall be made out, certified and directed according to such forms." This seems to us an additional reason for declining to hold that, when the mandate of the law has been complied with, every return throughout the state, so made in compliance therewith, must be held presumptively void, and that "on the face of the certificates the ballots rejected `for being double' seem to have been illegally rejected." Upon every principle official forms for ballots or returns which have been relied upon and used should be upheld unless cleary illegal. Election laws, especially as regards the duties of the officials to whom the conduct of elections is intrusted, should be as simple and plain as possible. The officials should be held to a compliance with their provisions without adding thereto or abating therefrom. Any construction which adds to the stated provisions of the law, and requires the officials to go beyond them, is fraught with mischief and will open the door to endless contentions. The situation then is this: — The moderators of some of the electors' meetings decided that certain ballots must be rejected as double. The ballots so rejected were indorsed and preserved, in accordance with the statute, in the box with the valid votes. The counters upon the completion of the count delivered to the moderator a certificate in duplicate containing the statutory statements, and, among others, the statement of the number rejected as double. The moderators sent to the secretary, in connection with the certificate required of the result of the electors' meetings, a certificate containing, among other things, a statement of the number of ballots not counted for being double. The returns required by law are duly made. The votes as returned are counted by the legal canvassers. A full list of the persons and number of votes given for each, together with the returns of the presiding officers, is laid before the General Assembly. The General Assembly neglects to act, either by declaring the. person whom they legally find to be chosen and giving him notice *Page 305 accordingly, or by proceeding on the second day of its session, as is provided when no person is duly elected, to choose a secretary. Months elapse. The last incumbent of the office is holding over under the provisions of the law, though not a candidate at the elections of 1890, and not claiming to have been elected at that election. The relator brings an information in the nature of a quo warranto, in which he claims to have received a majority of the votes cast for secretary at the last named election. It is insisted that he has not shown that he had such a majority, because he has not proved, in addition to his other evidence, that the votes rejected as double were legally rejected; that he must justify in advance the decision of the several moderators in rejecting the 509 ballots, and that there is not only no presumption in favor of the regularity of the official decisions, count and returns, but a presumption against them. For the defendant, after stating the differences between the old law and the present law of 1889 in regard to the treatment of double ballots, and after showing that under the old law both of the double ballots were to be rejected, while under the present law, if more than one ballot for the same office shall be found in any envelope, and such ballots shall be for one person, one shall be counted, says: — "If the statement of these certificates" (that is, that the rejected ballots were rejected for being double,) "is to be taken without explanation, the clear inference is that ballots were summarily rejected for the reason that they were double, in conformity with the law as it was before 1889." Which is to say that the clear inference is that the officials appointed and acting under the law of 1889 were either ignorant of its provisions or willfully disregarded them, and acting under the old law rejected both ballots where more than one for the same office and the same person were found in one envelope. We have not so understood the law respecting the presumptions arising from official acts.
The whole matter seems to us plain and easily stated. This court held in State ex rel. Morris v. Bulkeley that the information was insufficient, upon demurrer, in not alleging *Page 306 that the relator had a majority of all the votes, but only the majority as it appeared by the returns of the presiding officers, while other parts of the information showed that such apparent majority was in dispute. The relator in that case went upon the theory that in court upon an information in the nature of quo warranto, as well as in the General Assembly, the official returns could not be contradicted or questioned, but were conclusive. He claimed, in effect, that under the admission of the demurrer that the returns showed him to have a majority of the votes, he was, so far as that point was concerned, and if that was the only question in the case, entitled to a judgment in his favor. But this court said that, while the writ of quowarranto is the form of action specially adapted to try the right to an office, yet it tries only the real title, and can never be used to try a merely apparent title. That is to say, the admission of an allegation in a quo warranto information, that the returns show that the relator had a majority of the votes cast, does not of itself entitle him to a judgment. In the courts the returns, when offered in evidence, are not exempt from examination, to test, and contradict, if it does so, their correctness.
But this is very far from saying that if they are subjected to no examination they prove nothing. The inherent unsoundness of such a proposition will we think be apparent upon a consideration of the situation. In an information like the one under discussion the relator must aver, among other averments, as the foundation of his proceeding, in substance, that upon a day named an election for state officers was held, as required by the constitution, and that he was one of the persons voted for at said election for secretary; that the lists of persons voted for at the meetings of the electors, in the respective towns of the state, so held for such purpose, and of the number of votes at such meetings given for each, were made and certified by the proper officers, and were by such officers transmitted, together with the returns of said election, to the secretary, and that the rotes so returned showed that he had a majority of all the *Page 307 votes cast for secretary at such election. No lawyer would venture to omit such averments from an information. Nor would he venture to rest his case without proving such of them as were denied and were not of a character to be judicially noticed. The facts averred are a part of the election process.
After he has proved that the legal returns give him a majority of the required votes, that the processes of election, so far as they have been exercised, show that he is entitled to a declaration of his election, has he proved nothing which it requires counter proof on the part of the defendant to overthrow? Must he justify, before any evidence is offered to impeach them, the decisions of the officials to whom the law entrusts the conduct of elections? Would any one contend, has it been intimated in the trial of this case, that, in addition to the averments above suggested as necessary to an information like this, it should be added that all the decisions of said moderators and other officials were correct and in strict compliance with the requirements of law, or is that assumed until the contrary is at least suggested?
To hold that it will not be assumed seems to us to contradict all the rules respecting the presumptions which the law makes, and should make, in favor of official acts, and to cast a burden upon the relator which it is not his duty to bear. The law places the duty upon the moderators ofdeciding whether certain ballots should be rejected as not conforming to the statute. If they do not so conform they are not valid ballots under the law, and cannot be counted in estimating the number required to constitute a majority. The moderators decided that 509 ballots in different towns did not conform to the law and they were not counted. The Superior Court declined to assume, in the absence of any attempt to impeach the action of the moderators or of the counters of the returns, that the ballots were improperly rejected, or that the burden was on the relator to support the correctness of the official returns until they were attacked. We think the action of the Superior Court was *Page 308 correct, and should be sustained upon principle and authority alike.
Taylor, in his work on evidence, places the presumption stated in the maxim "omnia prœsumuntur rite actaesse," and which he says is one of the most important presumptions known to the law, among what he calls disputable presumptions, or presumptions which, while sufficient to establish a primâ facie case and to throw the burden of proof on the other party, may always be overcome by opposing proof. He gives many instances of the application of this presumption to acts of an official and of a judicial character. High's Extraordinary Legal Remedies, § 638, says: — "It is now the well-established doctrine that in proceedings upon information to test the title to a public office the return or certificate of canvassing officers as to the result of the election is not conclusive as to the result of the title to such office. Such officers are, in general, held to be only ministerial officers, vested with no judicial functions whatever, and their return is, at the most, butprimâ facie evidence in favor of the incumbent of the office. The courts will therefore go behind such returns, and will investigate the facts of the election, the number of votes cast, and the legality of the action of the canvassers. For this purpose they may receive testimony and make all needful investigation to determine the question in dispute, and if satisfied that the proceedings of the canvassers are erroneous, judgment of ouster will be given." Was there any evidence in this case to satisfy the court that the proceedings of the officials were erroneous, except in the case of the two Enfield ballots? Judge COOLEY, in his work on Constitutional Limitations, 5th edition, p. 785, says: — "As the election officers perform for the most part ministerial functions only, their returns and the certificates of election which are issued upon them are not conclusive in favor of the officers who would thereby appear to be chosen, but the final decision must rest with the courts. * * * Where however the question arises collaterally and not in a direct proceeding to try the title to the office, the correctness of the decision of the *Page 309 canvassers cannot be called in question, but must be conclusively presumed to be correct. * * * The most important question which remains to be mentioned relates to the evidence which the courts are at liberty to receive and the facts which it is proper to spread before the jury, when an issue is made upon an election for a trial at law. * * * We have already seen that the certificates or determinations of the various canvassing boards, though conclusive in collateral inquiries, do not preclude an investigation by the courts into the facts which they certify. They areprimâ facie evidence, however, even in the courts, and this is so notwithstanding alterations appear. But back of this primâ facie case the courts may go, and the determinations of the state board may be corrected by those of the district boards, and the latter by the ballots themselves when the ballots are still in existence and have been kept as required by law. If however the ballots have not been kept as required by law and surrounded by such securities as the law has prescribed with a view to their safe preservation as the best evidence of the election, it would seem they should not be received in evidence at all, or if received it should be left to the jury to determine, upon all the circumstances of the case, whether they constitute more reliable evidence than the inspector's certificate, which is usually prepared immediately on the close of the election, and upon actual count of the ballots as then made by the officers whose duty it is to do so."
It is stated in volume 6 of American English Encyclopedia of Law, p. 335, that "the returns when regular and properly authenticated are not only conclusive upon the board of canvassing officers, as we have seen, but are alsoprimâ facie evidence of the number of votes cast in a proceeding to contest the election, and the burden of proof is upon the person who assails their correctness." See also the opinion of COMSTOCK, C. J., in The People v.Minck, 21 N. York, 541; also The People v.Cook, 8 N. York, 67; and cases cited in Cooley's Constitutional Limitations, supra.
We have laid no stress in this opinion upon the requirement *Page 310 of our statute that the moderator shall "decide" whether a ballot shall be rejected as double or for any other cause. If the function he performs of thus deciding is ministerial only and not judicial, yet the authorities already referred to abundantly support the position to which a consideration of the legal principles involved seemed irresistibly to lead, namely, that the returns and certificates which were introduced were to be taken as correct until attacked, and that the 508 ballots, against the legality of rejecting which no proof was offered, could not be counted in ascertaining the number of votes cast for secretary at the last election.
It is suggested in the opinion of the majority of the court, that, even if such a presumption in favor of official acts exists, yet in this case it is met and neutralized by the presumption that every voter has conformed to the law and done no act which should deprive him of his vote. We do not understand that such presumption has ever been held to neutralize the presumption arising from official acts. But in this case we submit that no such presumption exists. It was not claimed at the trial, nor on the argument before us, that there were not 509 cases where the voters had, in fact, failed to conform to the law by depositing ballots which violated some one of its provisions. The contention was, not that the voter had observed the law, but that the moderator bad failed to sufficiently particularize which provision of the law against double ballots had been violated.
The conclusions to which we have come in this case apply with equal force to the case of