Brennan v. Bd. of Election Com'rs of Boston

• Citation: 310 Mass. 784,39 N.E.2d 636
• Parties: BRENNAN et al. v. BOARD OF ELECTION COM'RS OF CITY OF BOSTON.
• Decision Date: 05 February 1942
• Court: United States State Supreme Judicial Court of Massachusetts

310 Mass. 784

39 N.E.2d 636

BRENNAN et al.

v.BOARD OF ELECTION COM'RS OF CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 5, 1942.

Exceptions from Superior Court, Suffolk County; Giles, Judge.

Proceeding by Henry F. Brennan and others against the Board of Election Commissioners of the City of Boston for a writ of mandamus to compel respondents to furnish copies of the voting lists showing the names of the persons checked as having voted in ward 22 of the City of Boston at the city election held November 4, 1941. Respondents' answer in the nature of a demurrer to the petition was sustained, and petitioners bring exceptions.

Exceptions overruled and appeal dismissed.

Before FIELD, C. J., and QUA, DOLAN, and RONAN, JJ.

F. E. Kelly and Emil E. Fuchs, both of Boston, for petitioners.

R. H. Hopkins, Asst. Corp. Counsel, of Boston (N. Moger, Asst. Corp. Counsel, of Boston, of counsel), for respondent.

QUA, Justice.

The question in this case, presented upon an answer in the nature of a demurrer to a petition for a writ of mandamus by more than ten voters of Ward 22 of the city of Boston, is whether the petitioners have a right, upon written application under G.L.(Ter.Ed.) c. 54, § 108, to compel the respondents to furnish them copies of the voting lists showing the names of the persons checked as having voted in that ward at the city election held on November 4, 1941. The petition states that similar applications have been filed for all the wards of the city.

In our opinion the petitioners have not the right to compel the furnishing of the lists, and the trial judge rightly sustained the demurrer.

General Laws (Ter.Ed.) c. 54, § 107, provides for the sealing up, after the count has been recorded, of the ballots cast at each polling place at State and city elections, and of the voting lists, and for their delivery to the city clerk. Then follows section 108 in these words: ‘Upon written application,signed by at least ten voters in the town or ward of which the precinct forms a part, or upon written request signed by the chairman of any ward, town or city committee, the city or town clerk may open the envelope containing such voting list and may make a copy of the list as checked. After any such voting list has been so copied, said clerk shall at once enclose the list in an envelope and seal up the same and certify thereon to the identity of such lists.’

By various provisions of law the references in sections 107 and 108 to the city or town clerk are made applicable in Boston to the board of election commissioners.¹ The petitioners contend that the word ‘may’ in section 108, where it occurs in the expressions ‘may open the envelope’ and ‘may make a copy of the list,’ is to be construed as the equivalent of ‘shall’, and that the section is mandatory and absolutely requires the commissioners, upon receiving an application in writing by ten voters, not only to open the envelope and make a copy of the list as checked, but also to deliver the copy to the applicants. They cite many instances in other jurisdictions where ‘may’ in a statute has been construed as equivalent to ‘shall’ and as importing a command.

We concede the principle of these decisions and would apply it ourselves in proper instances. See, for example, Inhabitants of County of Worcester v. Schlesinger, 16 Gray 166, and O'Connell v. City of Cambridge, 258 Mass. 203, 205, 154 N.E. 760. This construction is particularly appropriate in cases where the statute confers upon a public officer power in certain circumstances to take action necessary in the public interest or for the enforcement of individual rights, and it cannot be supposed that it was intended to confer upon him a discretion to refuse to act in the precise circumstances which call for the exercise of the power. Attleboro Trust Co. v. Commissioner of Corporations & Taxation, 257 Mass. 43, 51, 52, 153 N.E. 333. Nevertheless it remains true that ‘may’ is not an apt word to express a positive mandate. It is a word of permission and not of command. It should be construed, if possible, in accordance with its true signification. Commonwealth v. Haynes, 107 Mass. 194, 197;Phillips v. Fadden, 125 Mass. 198, 201;Commonwealth v. Chance, 174 Mass. 245, 247, 54 N.E. 551,75 Am.St.Rep. 306;Rosenthal v. Nove, 175 Mass. 559, 560, 56 N.E. 884,78 Am.St.Rep. 512;Hampden Trust Co. v. Leary, 186 Mass. 577, 581, 72 N.E. 88;Cheney v. Coughlin, 201 Mass. 204, 211, 212, 87 N.E. 744;Commonwealth v. Mekelburg, 235 Mass. 383, 384, 126 N.E. 790; Dascalakis v. Commonwealth, 244 Mass. 568, 569, 139 N.E. 168;Irwin v. Justice of Municipal Court of Brighton District, 298 Mass. 158, 160, 10 N.E.2d 92. In general, throughout our statutes, the distinction between words of permission or discretion and words of command, including the distinction between ‘may’ and ‘shall’, has been carefully observed. Dowling v. Board of Assessors of Boston, 268 Mass. 480, 488, 168 N.E. 73. We should not in any case lightly conclude that the distinction has been overlooked. And it is particularly difficult to come to that conclusion in c. 54, § 108, when we note that in almost every section throughout the chapter the word ‘shall’ is consistently employed where a command is intended, sometimes in direct contrast with the word may in the same section;² that ‘shall’ is used throughout section 107 which directs the sealing up and depositing of the ballots and voting lists; and that the use of ‘shall’ is resumed in the sentence in section 108 immediately following the sentence which we are now called upon to construe.

There is further significance in the history of section 108. The section originated in St.1874, c. 376, § 43. This required the used check lists to be sealed and secured in the same manner as the ballots and then contained this proviso: ‘provided, that nothing in this act shall be construed to prevent the clerk of any city from furnishing a copy of a check-list after it has been used in any ward, upon the application of not less than ten legal voters resident therein; and immediately upon such copy being furnished, the check-list shall be again sealed up.’ In the Public Statutes of 1882 the provision found its place in section 29 of c. 7, but no longer in the form of a proviso. It there reads: ‘The city clerk may furnish a copy of a check-list after it has been used in any ward, upon the application of not less than ten legal voters resident therein; and immediately upon such copy being furnished, the check-list shall be again sealed up.’ It thus appears that the word ‘may’ in the present statute resulted from a recasting and abbreviation of the proviso in the statute of 1874. That proviso took the form of a permission to the clerk, when backed by the application of ten legal voters, to do what he was otherwise altogether forbidden to do, i. e., open up the lists after they had been sealed. To say that he was compelled to do so would be to read into the statute something not there expressed and not necessarily implied. It is not as if an absolute right had first been given to the ten voters and the clerk had then been given jurisdiction to enforce that right. In such a case the decisions cited by the petitioners to which reference has already been made might be pertinent. It would seem, therefore, that...