Brewster v. Sherman

• Citation: 195 Mass. 222,80 N.E. 821
• Parties: BREWSTER v. SHERMAN et al.
• Decision Date: 16 April 1907
• Court: United States State Supreme Judicial Court of Massachusetts

195 Mass. 222

80 N.E. 821

BREWSTER v. SHERMAN et al.

Supreme Judicial Court of Massachusetts, Plymouth.

April 16, 1907

COUNSEL

Wm H. Osborne and Morton Collingwood, for petitioner.

Chas S. Davis, for respondents.

OPINION

KNOWLTON C.J.

At the last annual election in the town of Plymouth, the votes upon the question, 'Shall licenses be granted for the sale of intoxicating liquors in this town?' were counted by the tellers, who reported that 636 ballots had been cast in the affirmative, and 637 in the negative, and that there were 38 blank ballots. Two days later a petition for a recount of these ballots was filed with the town clerk, and accordingly, the registrars of voters, who are the respondents in this suit, recounted them. In their certificate they declared and certified the vote on this question to be 638 ballots in the affirmative, 637 in the negative, and 36 blank ballots. It appears that, among the ballots counted as affirmative, there is one that shows, in the square opposite to the word 'Yes' which follows the question, a diagonal mark, and nothing more. In this ballot it appears that, in voting for town officers, the voter made a cross in the squares opposite the names of the officers for whom he voted, showing that he was of sufficient intelligence clearly and legally to indicate his choice.

This is a petition for a writ of mandamus to compel the registrars of voters not to count this ballot, and to make and file with the town clerk a new and amended certificate of the recount of ballots, in which it shall be stated that the total number of votes in the affirmative on said question was 637, and the total number of votes in the negative was 637, and that the number of blank ballots was 37.

The petitioner is a voter and taxpayer of the town, and the first question raised is whether he is a proper party to invoke a remedy of this kind. It is contended that, to maintain a petition for a writ of mandamus, he should have a private right or interest in the matter, beyond the right and interest of all the citizens of the town. The proposition contended for has sometimes been stated as the rule, and it is correct in its application to some cases. See In re Wellington, 16 Pick. (Mass.) 87-105, 26 Am. Dec. 631; Pearsons v. Randall, 110 Mass. 118-126. The general doctrine is stated in High's Extraordinary Remedies (3d Ed.) § 431, as follows: 'When the question is one of public right, and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest, and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen, and as such interested in the execution of the laws.' In support of this proposition he cites cases from many states, although decisions from four states are cited to the contrary. This is the rule applied in Union Pacific Railroad v. Hall, 91 U.S. 343, 354, 355, 23 L.Ed. 428, and, as shown in that case, it prevails also in England. See King v. Severn & Wye Ry. Co., 2 Barn. & Ald. 646; Rex v. Westmoreland, 1 Wils. 138; Rex v. Kent, 14 East. 395; Rex v. Cumberland, 1 M. & S. 190. In Attorney General v. Boston, 123 Mass. 460-479, Chief Justice Gray says: 'There is a great weight of American authority in favor of the doctrine that any private person may move, without the intervention of the Attorney General, for a writ of mandamus to enforce a public duty not due the government as such.' And he intimates, without deciding, that this is the law of Massachusetts. See Warren v. Charlestown, 2 Gray, 84; Larcom v. Olin, 160 Mass. 102-110, 35 N.E. 113. Inasmuch as the proceedings are instituted under our statute by a petition, and the trial is usually had upon the petition, there is a peculiar reason why the general rule should apply in this commonwealth. Rev. Laws, c. 192, § 5. In regard to the question whether licenses shall be granted for the sale of intoxicating liquors in Plymouth, no private right is involved, as distinguished from that of all the inhabitants of the town. The petitioner is a proper party to sue for a writ of mandamus.

The judge was unable to find as a fact that the diagonal mark constituted a cross, or indicated that the voter intended to vote and had voted 'Yes' upon the question submitted. He found that 'the...