Brooks v. Sec'y of the Commonwealth

• Citation: 257 Mass. 91,153 N.E. 322
• Parties: BROOKS et al. v. SECRETARY OF THE COMMONWEALTH.
• Decision Date: 18 September 1926
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 91

153 N.E. 322

BROOKS et al.

v.SECRETARY OF THE COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 18, 1926.

Case Reserved from Supreme Judicial Court, Suffolk County.

Petition for a writ of mandamus by Arthur T. Brooks and others against the Secretary of the Commonwealth to compel respondent to omit from the ballot a proposed law which he intended to print thereon. On reservation. Peremptory writ to issue.

S. W. Mendum and H. S. Davis, both of Boston, for petitioners.

J. R. Benton, Atty. Gen., and A. Lincoln and M. F. Weston, Asst. Attys. Gen., for the Commonwealth.

RUGG, C. J.

This is a petition for a writ of mandamus to compel the respondent to omit from the ballot for the next state election a proposed law which he intends to print on the ballot, under the initiative procedure provided by article 48 of the Amendments to the Constitution.

1. The petitioners as citizens and voters have standing to maintain this petition. That is settled by Brewster v. Sherman, 195 Mass. 222, 80 N. E. 821,11 Ann. Cas. 417, where Chief Justice Knowlton, after saying that the proposition that in order to maintain a petition for a writ of mandamus one should have a private right or interest in the matter beyond the right and interest of citizens in general, had sometimes been stated as the rule and was correct in its application to some cases, and referring to Wellington, petitioner, 16 Pick. (Mass.) 87, 105, and Pearsons v. Ranlett, 110 Mass. 118, 126, stated the general rule to be:

“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.' * * * This is the rule applied in Union Pacific Railroad v. Hall, 91 U. S. 343, 354, 355 and, as shown in that case, it prevails also in England. * * * 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 to the government as such.”

That general rule has been affirmed and applied in Weld v. Board of Gas & Electric Light Commissioners, 197 Mass. 556, 559,81 N. E. 101;Sinclair v. Mayor of Fall River, 198 Mass. 248, 256, 84 N. E. 453;Cox v. Segee, 206 Mass. 380, 381, 92 N. E. 620;Attorney General v. Suffolk County Apportionment Commissioners, 224 Mass. 598, 610, 113 N. E. 581;Donovan v. Suffolk County Apportionment Commissioners, 225 Mass. 55, 57, 113 N. E. 740, 2 A. L. R. 1334;Loring v. Young, 239 Mass. 349, 357, 132 N. E. 65;Kelley v. Board of Health of Peabody, 248 Mass. 165, 169, 143 N. E. 39;O'Brien v. Turner, 255 Mass.-,150 N. E. 886. Bancroft v. Building Commissioner of Boston, 153 N. E. 319, this day decided. See Anderson v. Secretary of the Commonwealth, 255 Mass.-,151 N. E. 378. The decision in McGlue v. County Commissioners of Essex, 225 Mass. 59, 113 N. E. 742, is quite distinguishable. Frothingham v. Mellon, 262 U. S. 447, 486, 487, 43 S. Ct. 597, 67 L. Ed. 1078. rests upon grounds inapplicable to the case at bar. See Baldwin v. Wilbraham, 140 Mass. 459, 4 N. E. 829.

[2] Mandamus is a discretionary writ and issues only in the exercise of sound judicial discretion. Smith v. Commissioner of Public Works of Boston, 215 Mass. 353, 102 N. E. 362, and cases there cited. Brattin v. Board of Civil Service Commissioners, 249 Mass. 170, 143 N. E. 822. Hence, there is little danger that the public interests will be adversely affected by the institution of litigation by volunteersand strangers. Where genuine wrongs and something more than faults purely technical, or failure in literal compliance with subsidiary requirements, are not disclosed, courts would not be likely to entertain petitions.

The case at bar falls within the rule of Brewster v. Sherman. The present petitioners seek the enforcement of public duty by an officer with respect to a public right in which the voters at large have an interest.

2. The decision in Anderson v. Secretary of the Commonwealth, 255 Mass.-,151 N. E. 378, is not a bar to the present proceeding. That was a petition to require the defendant not to put upon the ballot the same question which is described in the present petition. No one of the present petitioners was a party to that proceeding. The question of law there raised was wholly different from that raised in the case at bar. No allusion was made in that petition to the ground on which the present petition rests. This ground was not within the scope of the petition in the Anderson Case. It could not have been made the basis of relief in that case without an amendment to the petition. It is contended that the decision in the Anderson Case is a bar under the doctrine of res judicata. Estoppel by res judicata can be invoked as a defense when the plaintiff was either a party or a privy to a prior judgment on the same cause of action brought against the same defendant. It is a doctrine quite different from that of stare decisis. The present petitioners were not parties to the Anderson Case. It cannot be said with due regard to the commonly accepted definitions of privity that one citizen as member of the general public is in privity with another such citizen with whom he has had no relations in fact. The definition of privity in 1 Greenleaf on Evidence, § 535, adopted by the Supreme Court of the United States in Litchfield v. Goodnow's Administrator, 123 U. S. 549, 551, 8 S. Ct. 210, 211 (31 L. Ed. 199); namely, ‘Mutual or successive relationship to the same rights of property,’ cannot well be stretched to include a case like the present. In Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, at page 218, 89 N. E. 193, 218,40 L. R. A. (N. S.) 314, it is said:

‘One comprehensive definition of privies is such persons as are ‘privies in estate-as donor and donee, lessor and lessee and joint tenants; or privies in blood-as heir and ancestor; or privies in representation-as executor and testator or administrator and intestate; or privies in law-where the law without privity in blood or estate casts land upon another, as by escheat.’ Buckingham v. Ludlum, 10 Stew. [37 N. J. Eq.] 137, 141; Douglass v. Howland, 24 Wend. [N. Y.] 35, 53.'

[6] The doctrine of res judicata also is founded in part on the fact that it is in the interests of the Commonwealth and conserves the peace and repose of society that questions once decided should be forever removed from litigation. On principle it is difficult to conceive of different citizens, who in fact have no relation to each other except their common citizenship, who may reside in different communities and who may know nothing about the actions of each other, having a privity of interest in litigation without any information concerning it. The question of law now raised was not within the scope of that petition. The circumstance that an application for a reargument of that case was made, in which reference is made to the point here presented, is of slight, if any consequence.

‘Such an application has no standing under our laws as a recognized part of our procedure, but is received only as friendly information to the justices of an oversight or manifest error.’ Wall v. Old Colony Trust Co., 177 Mass. 275, 278, 58 N. E. 1015;Powers v. Sturtevant, 200 Mass. 519, 521, 86 N. E. 789.

It is too elementary for discussion that a case cannot be decided on grounds not raised by its pleadings or evidence. It has sometimes been said that the doctrine of res judicata applies by analogy to proceedings having a more or less remote similitude to the case at bar.¹ We do not pause to review such decisions, nor to determine how many of them are distinguishable on grounds of state procedure or difference in decisive facts, because the present decision rests upon other grounds. Whatever may be said about the doctrine of suits by a few as representatives of a class, Spear v. H. V. Greene Co., 246 Mass. 259, 266, 267, 140 N. E. 795, that principle does not seem to us necessarily applicable to a case like the present. The case at bar relates to the exercise of fundamental rights under the Initiative and Referendum Amendment to the Constitution. It touches voting throughout the state upon a matter of public interest. More or less discussion of fundamental public policy is involved touching a subject about which there may be a wide divergence of views. The constitutional amendment as to the initiative and referendum is comparatively new. The practice under it has not become fixed by experience or custom. It is of primary public importance that the submission of questions to a statewide vote should follow the requirements of that amendment. We are of opinion, in view of all the circumstances here presented, that the case at bar ought to be considered on its merits and that the doctrine of res judicata ought not to be applied. Price v. Gwin, 144 Ind. 105, 43 N. E. 5;Detroit v. Detroit Railway, 134 Mich. 11, 95 N. W. 992,99 N. W. 411,104 Am. St. Rep. 600;State v. Stock, 38 Kan. 184, 16 P. 799;Wabash Railroad v. Anelbert College, 208 U. S. 38, 58, 28 S. Ct. 182, 52 L. Ed. 379;Boyd v. Alabama, 94 U. S. 645, 648, 24 L. Ed. 302.

[8] 3. An initiative petition was duly filed and introduced into the general court, in accordance with article 48, pt. 2, §§ 3, 4, pt. 5, § 1, of the amendments to the Constitution, having been signed by not less than twenty thousand voters. By the vote taken by the general court, under pt. 5, § 1, the proposed law failed of enactment. Further procedure is provided by part 5, § 1, in these words:

‘If an...