Ashley v. Three Justices of the Superior Court & Intervenors

• Decision Date: 30 July 1917
• Citation: 228 Mass. 63
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CHARLES S. ASHLEY v. THREE JUSTICES OF THE SUPERIOR COURT& intervenors.

228 Mass. 63

CHARLES S. ASHLEY v. THREE JUSTICES OF THE SUPERIOR COURT& intervenors.

Supreme Judicial Court of Massachusetts, Bristol.

July 30, 1917

June 18 1917.

Present: RUGG, C J., BRALEY, DE COURCY, PIERCE, & CARROLL, JJ.

Corrupt Practices Act. Elections. Constitutional Law. Prohibition, Writ of. Words, "Shall," "Property," "Suits between two or more persons."

Under St. 1914, c 783, Section 10, an allegation, in a petition charging the respondent with having violated provisions of the corrupt practices act in connection with his election as the mayor of a certain city, that the petitioners are "inhabitants taxpayers, and qualified voters in the city" in question, is a sufficient averment that the petitioners had a right to vote for mayor at the election in question, which was less than two months before the filing of the petition. And, if such allegation were not sufficient, it could be amended, so that the validity of the proceeding would not be impaired.

In the provision of St. 1914, c. 783, Section 10, (c) that, "Election petitions . . . shall be heard and determined by three justices of the

Superior Court who shall each year, immediately following the annual State election, be assigned by the Chief Justice of said court for the hearing and determination of all matters arising under election petitions during the ensuing year," the word "shall" has no compulsory significance in relation to fixing the time when the assignment of the three judges shall be made, and such an assignment made by the Chief

Justice of the Superior Court nearly three months after the last annual State election on the day following the granting by a judge of the

Superior Court of an order to the effect that there is reasonable cause to believe that a corrupt practice has been committed by the respondent named in an election petition under the statute, is a valid assignment of the three judges who are to hear and determine all matters arising under election petitions during the year, including the petition already filed.

By an assignment by the Chief Justice of the Superior Court under authority of the statute named above of three judges of that court to hear election cases during the year no new tribunal is created, and the statute does not violate c. 2, Section 1, art. 9 of the Constitution, which provides that "All judicial officers . . . shall be nominated and appointed by the Governor, by and with the advice and consent of the

Council."

For the reason named above it did not become necessary for this court in the present case to consider, whether the subject of elections is of a nature so political that the Legislature is unlimited in its power to establish tribunals to deal with questions relating to elections to public office and to define the jurisdiction of such tribunals.

Article 15 of the Declaration of Rights, which provides that "In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury," does not apply to an election petition under the statute named above; because the right to hold an office to which one has been elected is not "property" within the meaning of the word as used in the Declaration of Rights and a proceeding upon an election petition is not a "suit between two or more persons" in the sense in which those words there are used.

The hearing of an election petition under the corrupt practices act is a civil proceeding in the nature of a quo warranto, and is not a criminal prosecution. The provisions of the corrupt practices act contained in St. 1913, c. 835,

Section 497, as amended by St. 1914, c. 783, Section 12, that "Whoever is found by final judgment upon an election petition . . . to have committed a corrupt practice, and shall, in accordance with such finding forfeit the office to which he has been elected, or whoever is convicted in a criminal proceeding of violating any provision of law relating to corrupt practices in elections shall be disqualified as a voter for a period of three years following the date of his conviction, and shall be deemed ineligible to hold public office for the said period," considered in connection with the Fortieth Amendment to the Constitution, which added to the classes of persons from whom the right to vote is withheld, who theretofore were "paupers and persons under guardianship," "persons temporarily or permanently disqualified by law because of corrupt practices in respect to elections," do not give the respondent in an election petition a constitutional right to a trial by jury thereon.

The provisions of the corrupt practices act above described impose no unconstitutional limitations upon the right to vote or the right to hold office.

The "full power and authority" given to the General Court by c. 1, Section

1, art. 3 of the Constitution "to erect and constitute judicatories and courts of record, or other courts," includes by necessary implication the power to fix the territorial limits within which such courts shall exercise jurisdiction and the places at which they shall be held. The provision of the corrupt practices act that election petitions shall be entered in the Superior Court in Suffolk County is within this power, and the respondent's right under art. 11 of the Declaration of Rights

"to obtain right and justice freely" is not impaired thereby.

There is nothing in the corrupt practices act in conflict with the provision of art. 9 of the Declaration of Rights that "All elections ought to be free; and all the inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments."

There is nothing in the corrupt practices act that deprives the respondent in an election petition of the equal protection of the laws. The provision of the corrupt practices act contained in St. 1913, c. 835,

Section 371, as amended by St. 1914, c. 783, Section 11, excepting from its operation the elections of town officers in towns of less than ten thousand inhabitants, does not impair the constitutional validity of the act.

There is nothing in the corrupt practices act in derogation of the constitutional powers of the Supreme Judicial Court.

There is nothing in the corrupt practices act in conflict with any provision of the Constitution of the United States. The provision in regard to trial by jury in the Seventh Amendment to the

Constitution of the United States relates only to the courts of the United States. Trial by jury is not essential to the due process of law secured by the

Fourteenth Amendment to the Constitution of the United States.

Neither the right to hold an elective public office nor the right to vote is a property right within the meaning of the Fourteenth Amendment to the Constitution of the United States. The portion of the corrupt practices act contained in St. 1914, c. 783,

Section 10, which in Dinan v. Swig, 223 Mass. 516 , was held to be unconstitutional and void as in violation of the provisions of the

Constitution, which make each branch of the General Court the final judge of the returns, elections and qualifications of its own members, is distinct and separate from the rest of the act and does not affect the validity of the other parts.

A writ of prohibition will not be issued to correct errors or irregularities of a tribunal that is acting within its jurisdiction, and can be invoked only to prevent such tribunal from exercising a jurisdiction that it does not possess. The respondent named in an election petition brought under St. 1914, c.

783, Section 10, charging him with having violated the provisions of the corrupt practices act in connection with his election as the mayor of a city, appeared specially and pleaded specially that he could not be held to answer the petition because the subpoena addressed to him had been made returnable in fifteen days instead of fourteen days after the filing of the petition. A few days later, without waiting for the

Superior Court to pass upon his plea, he brought a petition for a writ of prohibition against the three judges of the Superior Court assigned to hear election petitions. Held, that the matter set up in the special plea in regard to the return day of the subpoena was within the jurisdiction of the Superior Court, and was not open to the petitioner upon his petition for a writ of prohibition.

PETITION, filed on February 16, 1917, and allowed to be filed in its amended form on March 20, 1917, by Charles S. Ashley, who was elected mayor of New Bedford on December 5, 1916, against three justices of the Superior Court, for a writ of prohibition prohibiting the respondents from proceeding to hear and determine an election petition of Edward R. Hathaway and four others, charging the present petitioner with having violated the corrupt practices act and seeking to have his election as mayor of New Bedford declared void, alleging "that On January 25 last Edward R. Hathaway and four others of said New Bedford made written application to a justice of the Superior Court sitting in Suffolk County for leave to file an election petition and obtained an order thereon giving such leave, and thereafter on January 26, 1917, filed in the Superior Court for the County of Suffolk an election petition asking to have the aforesaid election of this petitioner as mayor of New Bedford declared void; that neither the said application, nor the said order, nor the said petition alleged that the said Hathaway and four others, or any of them, had the right to vote for this petitioner, or had the right to vote at the...