Andrews v. Board of Registrars of Voters of Easton

• Decision Date: 27 November 1923
• Citation: 246 Mass. 572
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CHARLES H. ANDREWS v. BOARD OF REGISTRARS OF VOTERS OF EASTON & another.

246 Mass. 572

CHARLES H. ANDREWS v. BOARD OF REGISTRARS OF VOTERS OF EASTON & another.

Supreme Judicial Court of Massachusetts, Bristol.

November 27, 1923

October 23, 1923.

Present: RUGG, C.

J., BRALEY, DE COURCY, PIERCE, & JENNEY, JJ.

Board of Registrars of Voters. Easton. Mandamus. Pleading, Civil, Parties Abatement, Amendment in Supreme Judicial Court. Election. Practice, Civil, Finding by trial judge, Exceptions, Mandamus proceedings. Supreme Judicial Court.

Under G.L.c. 231 Section 125, this court has jurisdiction and power, pending a hearing of exceptions by the respondents in a petition for a writ of mandamus against the registrars of voters of a town to allow a motion by the petitioner to amend the petition to admit as one of the respondents a town clerk who had been elected to his office after the exceptions were filed in this court upon the death of his predecessor in office and who under G.L.c. 51, Section 15, by virtue of his office was a member of the respondent board.

Since it was the intention of the Legislature by G.L.c. 51, Section 15, to constitute the board of registrars of voters of a town a continuous body, a petition for a writ of mandamus directed to the board does not abate by the death of the town clerk who by virtue of his office is a member of such board, but upon a motion duly made the successor of the deceased town clerk may be substituted in his place as one of the respondent board. A petition for a writ of mandamus is a proceeding at law and not in equity.

Where, after hearing a petition for a writ of mandamus directing the registrars of voters of a town not to count certain votes which had been counted by them in favor of the petitioner's opponent at an election, a single justice of this court finds that such votes should not be counted for the petitioner's opponent and the opponent, admitted as a party to defend the action, alleges exceptions, the full court will not review nor revise the finding by the single justice, but may only determine whether it can be supported in law or whether as a matter of law it must be reversed.

Where, at the hearing above described, it appeared that ballots which had been counted by the respondents as in favor of the petitioner's opponent did not have crosses in the space directly opposite the opponent's name but, opposite a blank space immediately below the opponent's name, had crosses a small portion of which extended above the line between such blank space and the space opposite the name of the opponent, a finding by the single justice that such "ballots were so marked as to make uncertain the intent of the voters, that the intention of the voters who marked those ballots was left wholly to speculation and conjecture," and a ruling by him that the respondents were in error in counting such ballots for the petitioner's opponent, were held to be warranted.

PETITION, filed in the Supreme Judicial Court on April 14, 1923, for a writ of mandamus requiring the respondents, Luther E. Swift, Sigfred V. Ledin, George A. Lackey and Frederick Hanlon, town clerk of the town of Easton, who were made respondents as "the duly constituted board of registrars of voters" of the town of Easton, not to count certain five ballots cast in an election of an assessor in the town, as described in the opinion, for Frank P. Keith "and to make and sign a statement of the questions raised by the application for a recount of the votes cast for assessor and to return said statement to the town clerk of said Town of Easton."

Frank P. Keith was allowed to intervene and defend. The petition was heard by Crosby, J. Material facts found by him are described in the opinion. He ordered that a writ of mandamus issue "as prayed for." Frank P. Keith alleged exceptions.

When the exceptions came on for hearing by this court, Frank P. Keith filed a plea in abatement, based on the death of the respondent Frederick Hanlon, who was the town clerk and by virtue of his office a member of the board of registrars of voters, and the petitioner filed a motion to amend his petition by including in place of the deceased town clerk his successor in office, Albert R. Wood.

S. P. Hall, for the respondent Keith. D. F. Buckley, for the petitioner.

RUGG, C.J. This is a petition for a writ of mandamus. It involves the election of assessor in the town of Easton at the annual town meeting in March of the current year. A recount of votes cast in the election was duly had by the board of registrars of voters upon proper proceedings. G.L.c. 54, Section 135. The present petition was brought against that board by one of the candidates claiming to have been elected. The other chief candidate, Keith (who was found by the registrars to have received the same number of votes as the petitioner), was allowed to intervene as the real party in interest and to conduct the defence. G.L.c. 249, Section 5. MacBrayne v City Council of Lowell, 241 Mass. 380 , 384. When the case came on for argument before this court on exceptions allowed by the single justice, a plea in abatement was filed by Keith alleging that subsequent to the hearing before the single justice the respondent Hanlon, town clerk and one of the registrars of voters, had ceased to be town clerk and one of the registrars of voters. G.L.c. 41, Section 109. Appropriate certificates to that effect were annexed to the plea. Thereupon the plaintiff moved to amend his petition by substituting the present town clerk, one Wood, in place of Hanlon. Counsel appeared representing Wood.

These proceedings, if proper in their essentials, now may be had before the full court, as well as in the trial court. G.L.c. 231, Section 125.

The board of registrars of voters consists of four members. The town or city clerk is one by virtue of his office. The three others are members for such terms that one goes out of office each year and his successor is appointed for a term of three years. G.L.c. 51, Section 15. Except by some unusual occurrence, there will always be three members of the board. Plainly the Legislature intended that the board should be a continuous body. The case at bar on this point comes within the principle of numerous decisions. Fairbanks v. Mayor &amp Aldermen of Fitchburg, 132 Mass. 42 , 44. Collins v. Mayor & Aldermen of Holyoke, 146 Mass. 298 , 306. ...