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The arbitrary course of the chairman of a district meeting in declaring himself elected

trustee will not be sustained.
Decided September 29, 1S89

B. E. Center, attorney for appellant
L. S. Pratt, attorney for respondent

Draper, Superinfendcnt

At the annual meeting held in the above-named district on the 6th day of
August 1889, Michael Moran was made chairman of the meeting. The appellant
alleges that, immediately after organization, a motion was made that the said
Moran be elected trustee for the ensuing year, when the appellant moved as an
amendment that the meeting proceed to ballot for trustee : that the chair refused
to entertain the amendment, and proceeded to take a vote on the original motion;



JUDICIAL DECISIONS : ELECTIONS 205

that three or four voted in the affirmative and some twenty in the negative,
but that the chairman declared the motion adopted and himself elected as trustee.

The respondent answers and denies these allegations. He says that there
was no motion made to elect a trustee by ballot until after the motion that he be
elected trustee had been adopted.

The appellant alleges that there were but twenty-five persons present at the
meeting. This is not denied by the respondent. Twenty-two persons swear
that they were present and sustain the state of facts as alleged by the appellant.
Six persons swear to the facts as set forth by the respondent.

The preponderance of proof, therefore, is with the appellant. The fact that
the chairman of the meeting was himself a candidate for trustee should at least
have caused him to have desired that the manner of voting should be in accord
with the wishes of his opponents.

It seems that the meeting was characterized by much disorder, and it is
alleged that forcible possession of the meeting was taken by the opponents of
Moran, who selected another chairman and proceeded to hold another election
for trustee, and to elect other officers. In view of all the circumstances, I do not
feel justified in upholding this last-mentioned meeting.

The appeal is sustained, the alleged election of Moran declared to be null
and void, and the clerk of the district is directed to give public notice of a time
and place for a special meeting of the district to transact the business of the
annual meeting.



3656

In the matter of the appeal of John B. Aikens v. school district no. 9, town of

Butler, county of Wayne.

Unless it can be shown that persons alleged to be illegal voters were such, and that their
votes might have changed the result, the action of a district meeting at which they
voted will not be disturbed.

Want of mental capacity to do ordinary business held not to disqualify a voter at a school
meeting.

Decided December 10, 18S7

Draper, Superintendent

At the last annual meeting in school district no. 9, town of Butler, county
of Wayne, it was agreed to elect a trustee by ballot. L'pon the first ballot the
result was a tie, and the meeting proceeded to another ballot which resulted in
a majority of one for Elias H. Cady. Upon this ballot two persons, namely,
William Gould and Charles Cornell, upon ofifering to vote were challenged, and
they each took the oath and deposited their ballots. The appellant insists that
these persons were not qualified electors of the district at the time of the meet-
ing, and that they had not mental capacity to transact ordinary business.

The appeal can not be sustained. It is not shown that tlie two persons
whose votes are objected to voted for the prevailing side. It is claimed that
they were not qualified electors of the district, but I am inclined to think that



206 THE UNIVERSITY OF THE STATE OF NEW YORK

the proof submitted by the respondent establishes their right to vote, on the
ground that they rent real estate hable to taxation, and reside in the district,
and were of the statutory age. There is nothing in the claim that they had not
sufficient mental capacity to transact ordinary business. Unfortunately that is
no disqualification, if it were true, but whether it was or not it is not important
to consider.



3652

In the matter of the appeal of Charles Schafer, a resident of school district no.
3, town of Clarence, Erie county, v. the proceedings of the annual school
meeting, held in said district, August 30, 18S7.

An election in a school district will not be overthrown because alleged legal voters did

not vote or offer to vote.
Any voter may freely challenge the right of another offering to vote.
Decided December S, 1887

Draper, Superintendent

This appeal is taken by Charles Schafer, a resident of school district no. 3,
town of Clarence, Erie county, from the proceedings of the annual school meet-
ing in the election of a trustee, and from the ruling of the chairman of said
meeting in excluding from voting the appellant, Fremont Danser and Henry
Reigle. all of whom the appellant alleges were legal voters. It is claimed that
the appellant and Danser were tenants of real estate and the parents of children
of school age, who had attended upon the school the year previous, and that
Henry Reigle was a person liable to assessment for personal property.

Had these men been permitted to vote, the result of the election would have
been a tie vote between the opposing candidates. The respondent answers that
these men did not offer to vote ; that the chairman simply stated that all who did
not pay taxes would be required to swear in their votes, intending to imply that
he would challenge all such persons.

There was an irregularity at the election, which was held by ballot. One
person voted whose right to do so was questioned and he consented that his
ballot might be withdrawn, as he would not swear it in. This would vitiate
the election if a single ballot would change the result. In this case it would not.
The appellant and Messrs Danser and Reigle have not placed themselves in a
position to criticise the election. If they claim the right to vote, they should
have offered to vote, and if entitled to do so and challenged, they should have
taken the prescribed oath. Any elector may challenge the right of another to
vote. Indeed, only in this way may any illegal votes be kept from the ballot
box. The law expressly provides the course which must be pursued by electors
whose right to vote is disputed, and that course must be followed. Elections
can not be overturned on the ground that persons had the right to vote and did
not exercise, nor seriously attempt to exercise it. The appeal must be dismissed.



JUDICIAL decisions: elections 207



3820



In the matter of the appeal of Sylvester Espenscheid and George Robinson v.
school district no. 8, of the town of Sodus, in the county of Wayne.

Where the proceedings of a district meeting are characterized by such disorder and con-
fusion as to make it apparent that no fair expression of the opinions or preferences
of the legal voters resulted therefrom, they will not be sustained, but a special meeting
will be ordered.

Decided October 23, 1889

Draper, Superintendent

This appeal is brought for the purpose of determining who was elected
trustee, or the result otherwise of the annual school meeting held in the above-
named district. The papers are voluminous. I have undertaken to read them
with care. After such reading I am unable to determine which of the two con-
tending parties is in the right. I am more inclined to believe that both sides are
somewhat at fault for a most unfortunate controversy which exists in the dis-
trict. It is claimed on one side that the annual meeting was organized before
the legal time arrived, and by but seven persons who elected a trustee and trans-
acted some other business, and that when some thirty or forty persons arrived
at about the legal time and undertook to participate in the action of the meeting
and made motions concerning district business, the chairman refused to recognize
them, and that he finally declared the meeting adjourned without motion. On
the other side this is all denied, and it is claimed that the meeting was not organ-
ized until the proper time and was conducted fairly. Numerous witnesses swear
squarely against each other. But one thing seems clear to me, and that is that
there was much confusion and disorder at the meeting вАФ so much so as to make
it impossible for the Department to sustain the proceedings which are claimed to
have been taken either by one side or the other.

I have therefore concluded to hold that no district meeting was regularly
held, and that a special meeting should be called for the purpose of transacting
the business which devolved upon the annual meeting.

It is therefore ordered that the district clerk of said district no. 8, of the
town of Sodus and county of Wayne, call a special meeting of the district for
the purpose of transacting such business, not less than ten nor more than twenty
days from the date hereof.



3752
In the matter of the appeal of Henry Fink v. Patrick Hopkins.

The official minutes of a district meeting show the election of a certain person as trustee,
and also that the chairman so declared at the time of the election, although the action
of the chairman is disputed. Held, that the official record will be accepted as true,
unless impeached by clear evidence.



Jo8 THE UNIVERSITY OF THE STATE OF NEW YORK

Illegal voting at school meetings is to be prevented by the exercise of the right of challenge
and the exaction of the voter's oath as to his qualifications, and subsequent punishment
for false swearing, if the person challenged is guilty of the same.

A person who merely occupies land for which he pays no rent, and which he does not own
or hire, and upon which he is an occupant by mere sufferance; held, such occupant
not to be qualified as a voter.

Decided January 17, 1889

Davies & Jolmson, attorneys for appellant
James Gallagher, attorney for respondent

Draper, Superintendent

This appeal is brought for the purpose of determining who was elected
trustee at the annual school meeting held in August 1888, in school district no.
10, of the towns of Camden, Oneida county, and Constantia, Oswego county.
It seems that, soon after the organization of the district meeting, an informal
vote was taken for the office of trustee. It was then ordered that a formal
ballot should be taken, which was done. On this ballot 17 votes were cast, of
which 8 were for Patrick Hopkins, 7 for Henry Fink, i for John Ford and i
a blank. A second formal ballot was taken, of which 10 were for Henry Fink,
the appellant, and 7 for Patrick Hopkins.

The official minutes of the meeting show the above facts, and that the
chairman declared Fink elected. There is some controversy between the parties
as to whether there was an official declaration of the result by the chair, and
the chairman has made affidavits on both sides. I do not consider the question
very material, but feel justified, under all the circumstances, in accepting the
statement of the official record as the true one. Since the meeting, both Fink
and Hopkins have claimed to have been elected. Mr Hopkins claims that Fink
was not a qualified elector at the time the district meeting was held, and there-
fore not eligible to a district office ; he also claims that one Henry G. Ford, who
voted for Mr Fink, was not a qualified elector. On the other hand, Mr Fink,
the appellant, claims that Charles Miller, Daniel Hopkins, George A. Cook and
Vreeland Prest, who voted for the respondent, were not entitled to vote. No
evidence is offered by the appellant to disprove the qualifications of either of
the four persons named, except as to Vreeland Prest.

The case must, therefore, turn upon the right of the appellant and Henry
Ford to vote on one side, and of Vreeland Prest on the other. The appellant
swears that he hires real estate in said district liable to taxation, and did so
during the year prior to the annual meeting referred to. The fact seems to be
that he is living on a farm owned by his wife, but this is not inconsistent with
his claim. Moreover, it seems that his right to vote was challenged at the annual
meeting, and that he insisted upon it and voted. The law does not contemplate
the determination of a disputed question of that character in a collateral pro-
ceeding. Its method of determining such a matter, where the right is insisted
upon, is to confer the right of challenge, exact the oath of the voter, and punish
hiin for false swearing.



JUDICIAL DECISIOXS : ELECTIONS 2O9

I find no sufficient ground to sustain the claim that the appellant was not
a legal voter and not eligible to the trusteeship. In the case of Henry G. Ford,
whose right to vote is disputed, he swears that he was born and brought up in
the town of Camden, and has resided in said school district no. lo for the past
six years, and has during that time held the office of trustee of said district for
two years and the office of clerk for one year, and has voted at every school
meeting held in said district during said time; that he has owned real estate,
been assessed and paid taxes thereon, and has sent children to school in said
district during all of said time, and that he is a legal and qualified voter. It is
claimed by the respondent that Mr Ford lived in Canada for some time and that
he became a naturalized citizen under the government of Great Britain. There
is no proof of that fact offered, and in the absence of it, and in the face of his
sworn statement showing his qualifications, and particularly in the face of the
fact that for six years he has exercised the right of suft'rage in the district
school meetings, and during- three years has held office in the district, the claim
of the respondent against him can not be sustained.

On the other hand, it is claimed by the appellant that \'reeland Prest, who
voted for the respondent, is not a legal voter. Prest claims the right to vote,
and founds his right upon the fact that he rents real property. The facts regard-
ing such rental do not very clearly appear. Mr Spencer J- Ford swears that he
owns the land which Prest claims to rent. He admits that Prest lives upon
said land, but swears that he pays no rent therefor, and that he is only there at
sufferance. Prest, on the other hand, does not even say that he hires the same :
he swears that he " occupies " it, and pays for the use by rendering services to
the owner, in taking care of his stock, etc.

By the admission, therefore, of Prest himself, his occupancy at the most, is
only at sufferance. He has no title in the land. The owner would not be
obliged to serve notice of dispossession upon him. He could be unceremoniously
ousted at any moment. It may well be doubted if this is such an owning or
hiring as would confer upon him the right of suffrage at a school meeting under
the language of the statute.

1 therefore come to the conclusion that, of the votes cast upon the first formal
ballot, there were seven legal votes cast for Mr Hopkins, seven legal votes for
Mr Fink, and one for John Ford. It clearly required a majority to elect. Even
if all the votes cast for the respondent had been legally cast by persons entitled
to vote, he would not have been elected upon that ballot, for he had no majority
of all the votes cast. This would be so considering the blank ballot as of no
account. Upon the second formal ballot 2\Ir Fink had ten legal votes and Mr
Hopkins but six.

From these considerations it naturally follows that the appeal must be sus-
tained and the appellant declared to be entitled to exercise the functions of the
office of trustee in the district named.



2IO THE UNIVERSITY OF THE STATE OF NEW YORK

3708

In the matter of the appeal of Hambly T. Orchard v. Ransom Dodge and C. P.
Vail, trustees of district no. i. town of Beekman. Dutchess county.

The election of a person as trustee by a district meeting to fill a vacancy, held, that the
person so chosen would be entitled to hold the office only for the unexpired term,
and that the district meeting could elect for no shorter period than the unexpired term.

Decided September 22, 1888

Draper, Superintendent

This appeal is brought to determine the title of the appellant to the office of
trustee in the district named. The respondents are trustees and refuse to
acknowledge the right of the appellant to act with them in that capacity. The
appellant sets forth the facts to be as follows :

At the annual meeting held in the district in 1886, Charles A. Stephens was
elected a trustee for the full term of three years. He moved from the district
in the spring of 1887, and the supervisor of the town appointed P. A. Skidmore
to fill the vacancy thus created. At the annual meeting in 1887 Skidmore was
duly elected to fill the vacancy. The appellant claims that the district meeting
of 1887 elected Mr Skidmore for the term of one year. The minutes of the
meeting seem to sustain this claim, but there seems to have been some contro-
versy in the district as to whether the election of Skidmore in 1887 was for one
year or for the balance of the term to which Stephens was elected in 1886.
The district meeting in 1888 is shown to have considered the subject, and the
meeting decided that Skidmore had been elected in 1887 but for one year, and
thereupon it proceeded to elect the appellant for another year. The respondents
interpose no answer, but have written a letter in which they admit the correctness
of the statements of the appellant and ask for an immediate decision.

I am of the opinion that the appellant has no lawful claim to the office.
When the supervisor appointed Mr Skidmore trustee in place of Mr Stephens,
who had moved away from the district, that appointment was good until the
next annual scliool meeting, but the school meeting in 1887 had the power to
elect a trustee to fill the vacancy for the unexpired term. There were two years
of the term yet to run and they had no power to elect a trustee for that place
for one year. There is apparently some conflict of opinion as to whether there
was any intent to elect for one year or for the balance of the term. In my
judgment, it is not material. If the meeting elected at all, it must have been
for the balance of the term. It is undisputed that there was an election and Mr
Skidmore was chosen. That being so, there was no vacancy to fill in the year
1 888, and the election of the appellant at the school meeting of 1SS8 is, therefore,
void and of no effect.

The appeal is. therefore, dismissed.



JUDICIAL decisions: elections 211



3568



In the matter of the appeal of Louis Wolf v. John Schaible, jr, and others,
inspectors of election of school district no. 2, towns of Middletown and
Southfield, county of Richmond.

When a ticket voted at an election for trustee contained a name printed and another name

written, the presumption is that the voter intended to vote for the latter, and neglected

to erase the name of the former.
Where the ballots cast for trustee run two short of the poll list, and two trustee ballots are

found deposited in another box at the same election, they should be counted for the

person whose name appears thereon.
Decided May 3, 1887

Max Huebner, Esq., attorney for appellant

Draper, Superintendent

This appeal is taken by Louis Wolf from the action of the inspectors of
election of school district no. 2, towns of Middletown and Southfield, in the
county of Richmond, in declaring the result of an election for trustee held in
said district August 31, 1886.

The allegations of the appellant are, that at said election John Schaible, jr,
Max C. Huebner and Squire Force acted as inspectors of election ; that the
appellant, one William Nulty and one Nelius were voted for for trustee; that
the number of votes cast was 187; that the votes were canvassed as follows:

For Wolf, the appellant 92

For Nulty 84

For Nelius 8



That two ballots bearing the name of Louis Wolf for trustee were found in the
box in which ballots for clerk were deposited, and two ballots for clerk found in
the trustee's box; that one ballot for trustee contained the name of Louis Wolf
printed thereon and the name of William Nulty written thereon; that if these
three ballots had been counted, the vote would have exactly corresponded with
the poll list kept at such election; that the ballot containing both the names of
Nulty and Wolf was counted for Nulty, and the two ballots for Louis Wolf were
rejected, and at no time included in the count. The chairman announced that no
election had been held.

The respondent. Max C. Huebner, for answer to the appeal denies that the
votes as counted exceeded the poll list, and while admitting that there were two
trustee ballots found in the clerk's box, denies that they were opened or that
anyone saw the contents of the said ballots. He admits that a ballot containing
both the names of Wolf and Nulty was counted for Nulty. He alleges that all
parties interested have not been made parties, and further alleges that at least
six illegal votes were cast for Wolf, and asks that the matter be referred to the
school commissioner of Richmond county to enable all parties in interest to
give testimony therein.



212 THE UNIVERSITY OF THE STATE OF NEW YORK

On the 27tli day of P'ebruary 1887, an order was made, dated that day. t'lat
Commissioner Theodore Frean should give notice to both parties, appellant and
respondent, of a time and place where the testimony of witnesses for the respec-
tive parties would be taken before him pursuant to law.

On Alarch 8, 1S87, at 7 p. m., the commissioner was attended by counsel for
the appellant and by ilax C. Huebner, one of the respondents, and the attorney
who appeared herein for respondents, and by Squire Force, another respondent
herein, and announced to them that he would attend at the Edgewater village
hall on the 12th day of March 1887, at 7 o'clock p. m., to proceed to take evidence
herein pursuant to said order. Both attorneys agreed to meet at the time and
place so fixed. That at the date, place and time so named, the commissioner
attended and the appellant appeared with his counsel and witnesses, but neither
respondents nor counsel appeared. After waiting over three-quarters of an hour
the matter was, on motion of appellant's counsel, adjourned until IMarch 18,
1S87, at 7 p. m. On the i8th day of March 1S87, at 7 p. m., both appellant's and
respondents' counsel appeared, and respondents' counsel applied for an adjourn-
ment, which was denied, and respondents' counsel retired. The commissioner
states that " the motion was denied because appellant had six witnesses present,
five of whom had been subpoenaed."

The evidence of the appellant was thereupon proceeded with.

At the close of appellant's evidence, the appellant's counsel asked that a
notice be served upon the respondents. Max C. Huebner and Squire Force, to
attend at the next session, to be held on Saturday, March 28, 1887, at 9 a. m.,
which was done.

After waiting some time on the adjourned day, one of the respondents.
Squire Force, appeared, but stated that he had no counsel, did not want any and
did not wish to be examined and had no witnesses he wished examined.

Mr Huebner, although in the building and personally notified, did not appear
before the commissioner.

Thomas W. Fitzgerald, an attorney, appeared, and stated that he did so by
direction of Mr Huebner, and asked for an adjournment. After waiting two
hours, the commissioner declared the hearing closed, and has duly returned the
evidence taken to me.

From the testimony taken, I find the facts to be as follows :

The poll list kept at the annual election showed that 187 votes were cast for
trustee. In canvassing the votes deposited in the trustee's box, it was found
that the appellant received 92 votes, Nulty 84 and Nelius 8. There was one
defective ballot, which was probably intended to be cast for Nulty, and I so
find. This would increase his vote to 85.

There were two ballots for trustee in the clerk's box, placed there by mistake,
which were cast for Louis Wolf, and as the counting of these two ballots would
make the vote cast correspond exactly with the poll list, they should have been
counted for him. This would have increased his vote to 94, and the result would



JUDICIAL decisions: elections 213

then appear as follows: Wolf, 94; Nulty, 85; Melius, 8; giving Louis Wolf
a clear majority of i.

I therefore sustain the appeal and hold that Louis Wolf was duly elected
trustee of school district no. 2, towns of jNIiddletown and Southlield, county of
Richmond, at the annual meeting held in 1S86.



3533

In the matter of the appeal of O. B. Kelsey and others from the proceedings of



Online LibraryNew York (State). Superintendent of Common SchoolsJudicial decisions of the State Superintendent of Common Schools, State Superintendent of Public Instruction, State Commissioner of Education, from 1822 to 1913 → online text (page 26 of 188)