Attorney General v. Board of Aldermen of Everett

• Decision Date: 20 June 1966
• Citation: 218 N.E.2d 127,351 Mass. 193
• Parties: ATTORNEY GENERAL v. BOARD OF ALDERMEN OF EVERETT et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 127

218 N.E.2d 127

351 Mass. 193

ATTORNEY GENERAL v. BOARD OF ALDERMEN OF EVERETT et al. ¹

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 5, 1966.

Decided June 20, 1966.

Willie J. Davis, Asst. Attorney General, for Attorney General.

John F. Kryzovic and John P. Morley, Everett, for Margaret A. Mitton.

Maurice Mitchell, Everett, for Paul Alpert.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK and REARDON, JJ.

KIRK, Justice.

By this second substitute bill in equity the Attorney General seeks to have declared void the election of Margaret A. Mitton to the school committee and of Paul Alpert to the common council of Everett. He also asks that the board of aldermen of Everett (the board) be directed to hold a special election for the purpose of filling the posts if vacancies are declared under the first two prayers of the bill. Mrs. Mitton demurred to the bill and filed a plea in abatement. Alpert filed only a plea in abatement. The board filed no pleading to the substitute bill. At the argument before us all parties stated that they had agreed to be bound by our disposition of the demurrer and pleas in abatement as if all had filed identical pleadings.

The judge sustained Mrs. Mitton's demurrer, overruled the pleas in abatement, and denied to the Attorney General leave to amend. He reported the case to us under G.L. c. 214, § 30, for a determination of the correctness of his disposition of the demurrer and pleas. Powers v. Heggie, 268 Mass. 233, 237, 167 N.E. 314.

We decide the case on the demurrer.

The bill alleges the following. The city of Everett held a municipal election on November 2, 1965. Mrs. Mitton and Alpert were declared winners in their respective races. The board of registrars of voters held a recount from November 15 to 18. (Although not clearly alleged in the bill the recount apparently left the election of Mrs. Mitton and Alpert undisturbed.) On November 19, 1965, the board of registrars informed the district attorney of Middlesex County of 'discrepancies and irregularities on voters' ballots' cast in the election. The registrars wrote that the 'pattern of irregularities was so consistent, that it would appear that the law has been violated. The entire matter warrants a full and prompt investigation by your office.' Because the district attorney lacked the requeisite manpower to conduct the investigation, the task was assumed by the Attorney General whose first step was to obtain on November 26, 1965, from the Superior Court sitting in Suffolk County, an order directing the city clerk of Everett to allow the Attorney General and his staff to examine all absentee ballots. The Attorney General's investigation showed a number of erasures on absentee ballots with respect to the Mitton and Alpert contests. The erasures show that the ballots were tampered with to the extent that Mrs. Mitton and Alpert would not have won without the tampering. As a result of the investigation an election inquest was held in the First District Court of Eastern Middlesex in Malden. The judge who conducted the inquest submitted a report annexed to the bill in which he recommended the issuance of complaints for violation of G.L. c. 56, § 55.

Before we proceed to a consideration of the demurrer we think it is important to point out that the order of November 26, 1965, directing the city clerk of Everett to permit the Attorney General and his staff to examine the ballots cast on November 2, 1965, was improvidently entered. Under G.L. c. 54, § 109, ² the city clerk is permitted to allow only persons 'required by law' to examine the ballots. The persons who may properly be permitted to examine the ballots within thirty days following an election are defined in G.L. c. 54, §§ 134, ³ 135. ⁴ The Attorney General is not among the defined persons. Accordingly, he was without standing to ask for the order and the Superior Court was without power to issue the order when it was issued.

We now consider the demurrer which rests mainly on the ground that there is no jurisdiction in a court of equity to declare an election void. This ground is decisive of the case. The conduct of elections and election contests is controlled entirely by statute. See Abbene v. Board of Election Commrs. of Revere, 348 Mass. 247, 249, 202 N.E.2d 827, and cases cited. Unless the Legislature has granted to the Attorney General the right to the relief here sought he is not entitled to it, and the court may not grant it.

Our statutes authorize judicial action in an election in several specific ways. For example, the counting of absentee ballots in municipal elections may be required or enjoined by a bill in equity under G.L. c. 54, §§ 103, 103A. The court also may review by mandamus the legality of a contest as conducted by the local officials charged therewith under c. 54, §§ 134, 135, Swift v. Registrars of Voters of Milton, 281 Mass. 264, 270, 183 N.E. 727, or may entertain an information by the Attorney General in the nature of quo warranto 'against a person holding or claiming the right to hold an office or employment, the salary or compensation of which is payable by the commonwealth, a county, city or town.' G.L. c. 249, § 12. Attorney Gen. v. Sullivan, 163 Mass. 446, 40 N.E. 843, 28 L.R.A. 455; Brierley v. Walsh, 299 Mass. 292, 294--295, 12 N.E.2d 827; Attorney Gen. v. Goldberg, 330 Mass. 291, 292, 112 N.E.2d 926. Where corrupt practices are at issue, an election petition may be filed with the Superior Court under c. 55, § 28. Where violations of the election laws are alleged, a District Court may hold an inquest under G.L. c. 55, § 31. Appropriate criminal penalties against violators may be sought by the Commonwealth under the several provisions of G.L. c. 56. Finally, G.L. c. 56, § 59, gives to the Supreme Judicial Court and the Superior Court jurisdiction 'at law, in equity or by mandamus to enforce the provisions of chapters fifty to fifty-six, inclusive.'

The Attorney General relies on G.L. c. 56, § 59, as a basis of jurisdiction for his bill. We think that the reliance is misplaced. The bill is not directed to the enforcement by any of the defendants of any specific provisions of cc. 50--56, inclusive. It cites no provisions of the designated chapters which have been violated or not complied with and which the defendants could be required to enforce.

Since there is no statute which authorizes the Attorney General to proceed as he has here undertaken to proceed and since the statutes afford adequate remedy to those who are entitled to have recourse to them, it follows that the demurrer to his bill was properly sustained.

Our view of the jurisdictional question appears to be shared by the courts of other States which have considered it. Although election laws vary from place to place, other courts almost invariably hold that a bill in equity to void an election may not be maintained in the absence of a statute expressly conferring jurisdiction to do so or where there is a statute which otherwise prescribes the methods for conducting election contests....