Clancy v. Wallace

• Decision Date: 18 December 1934
• Citation: 288 Mass. 557
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JOSEPH B. CLANCY v. JOHN R. WALLACE & others.

288 Mass. 557

JOSEPH B. CLANCY v. JOHN R. WALLACE & others.

Supreme Judicial Court of Massachusetts, Essex.

December 18, 1934

December 12, 1934.

Present: RUGG, C J., CROSBY, DONAHUE, & LUMMUS, JJ.

Elections, Recount. Mandamus. Lynn. Waiver.

Upon a report and reservation by a single justice of this court, without decision, for determination by the full court of a petition for a writ of mandamus upon the pleadings and an agreed statement of facts, no question of discretion is involved the sole question being, whether as a matter of law upon the record the writ should issue.

By reason of the provisions of St. 1931, c. 92, creating the board of election commissioners of Lynn, a special act applying solely to that city, if the commissioners, after receiving petitions for a recount, verify the signatures of the voters thereon and find the proper number of signatures, they are not under a duty to make the certificate prescribed by G. L. (Ter. Ed.) c. 54 Section 135, as amended by St.

1933, c. 270.

The election commissioners of Lynn gave to the applicant for a recount of votes a notice in writing that a recount of the votes in certain wards would be held on a certain day which was less than three days after the notice, and, during the recount so held, orally gave notice of a recount of votes in the remaining wards. The applicant protested that the notice given did not comply with the requirements of G. L. (Ter Ed.) c. 54,

Section 135, as amended by St. 1933, c. 270, but he did not ask for a delay nor seek to obtain relief in court under G. L. (Ter. Ed.) c. 56,

Section 69, attended the recount throughout, and did not show that he suffered any harm through the failure to give him the statutory notice.

Held, that (1) The applicant as a matter of law waived whatever informality there was as to notice;

(2) The applicant was not entitled, upon a petition for a writ of mandamus, to have the recount set aside because of the lack of statutory notice to him.

The recount above described was held in the council chamber of Lynn. Ten tables were arranged in a semicircle two feet inside a rail. Two tellers were at each table. One of them, seated with his back to the railing, inspected each ballot, the ballots being within view of persons outside the railing, and called off the votes recorded thereon, which were tabulated by the teller sitting on the opposite side of the table.

Tabulation from the block tally sheets to the total tally sheets was performed upon a rostrum at the back of the council chamber within the railing and twenty to twenty-five feet therefrom. Requests by the applicant for recount that he or a representative be allowed within the railing and at the tables, and that he be allowed to see the original tally sheets made by the election officers at the election and the tally sheets made by the tellers at the recount, were refused. The commissioners announced publicly that the original tally sheets might be examined at their office after the recount was completed and that the candidates and their representatives were entitled to be at the railing in the space outside. There were many persons present at the recount, which was conducted by the commissioners honestly and in good faith.

Held, that (1) The regulations adopted by the election commissioners in view of all the conditions confronting them were reasonable and conduced to the orderly conduct of the recount;

(2) There was compliance with the requirements of G. L. (Ter. Ed.) c. 54, Section 135, as amended by St. 1933, c. 270, that "each . . . candidate or person representing petitioners . . . shall be allowed to be present and to witness such recount at any table where a recount of the ballots affecting such candidate is being held, either in person, accompanied with counsel if he so desires, or by an agent appointed by him in writing." Failure of election commissioners to observe the requirements of G. L.

(Ter. Ed.) c. 54, Section 135, as amended by St. 1933, c. 270, that "blanks cast" respecting an office which is the subject of a recount shall be counted did not render the recount invalid where such omission did not affect the accuracy of the recount.

Statutory provisions as to elections must be interpreted on the theory that they are enacted to prevent fraud and mistakes and to secure freedom of choice; they are not to be so construed as to make the rights of voting and of having the votes ultimately counted with accuracy subject to technical obstructions not affecting the merits of the election. Per

RUGG, C.J.

PETITION, filed in the Supreme Judicial Court for the county of Essex on November 19, 1934, averring invalid a recount in Lynn of votes cast at the election on November 6, 1934, for State senator in the First Essex Senatorial District, upon which Albert Cole was declared elected instead of the petitioner, who had been reported elected by the original count, and seeking a writ of mandamus directing the board of election commissioners of Lynn not to alter and amend the original returns made by them on November 6 and 7, wherein the petitioner was declared elected, and the record then made should stand as the true record of the election.

Albert Cole was allowed to intervene in the proceedings. Material facts are stated in the opinion.

The petition was heard by Field, J., on the pleadings and an agreed statement of facts, and was reported without decision and reserved for determination by the full court.

The case was submitted on briefs.

F. L. Simpson & H.

C. Mamber, for the Petitioner.

P. F. Shanahan, City Solicitor, & J.

M. Cashman, Assistant City Solicitor, for the respondents.

H. Parker & H.

Hormel, for the intervening respondent.

RUGG, C.J. This is a petition for a writ of mandamus. Without decision or ruling the case was reserved by the single justice upon the pleadings and agreed statement of facts for the determination of the full court. On a reservation of this nature no exercise of discretion is involved. The question presented is whether upon the facts and the pleadings the writ of mandamus ought to issue as matter of law. School Committee of Lowell v. Mayor of Lowell, 265 Mass. 353 , 354, and cases cited. Shawmut Mills v. Board of Assessors, 271 Mass. 358 , 360. Cochran v. Roemer, 287 Mass 500 , 502.

The pertinent facts are these: The petitioner and Albert Cole, who has been allowed to intervene in this proceeding, were the only candidates for the office of senator for the First Essex Senatorial District at the election held on November 6, 1934. That district is composed of the city of Lynn and the towns of Nahant and Swampscott. According to the returns of the election officers the petitioner was shown to be elected. Petitions were filed on November 8, 1934, by the intervener Cole, with the election commissioners of the city of Lynn, who are the respondents, for recounts in the several wards of that city. According to the results of that recount, in connection with the returns from the two towns, the intervener was shown to be elected. Those petitions were on forms furnished by the election commissioners and each bore the signatures of ten or more voters together with their residences; each was verified by the affidavit of one of the signers. Upon receipt of those petitions the election commissioners compared the names and addresses given thereon with the list of registered voters and on each petition put a check mark opposite the name of at least ten subscribers whom they found to be registered voters in the ward for which the petition was filed. They did not annex any certificate of the number of names of subscribers on each petition which were the names of registered voters. On Monday, November 12, 1934, the election commissioners delivered to the petitioner and to the intervener a written notice that the recount would be held on the evening of Wednesday, November 14, 1934, for wards 2, 3 and 4, and on Tuesday, November 13, 1934, the election commissioners mailed to the petitioner and the intervener a letter stating that the recount had been postponed and would be held on Thursday, November 15, 1934. No other written notice was given, and no written notice was given as to the recount of votes to be held in wards 1, 5, 6 and 7. Recount was had of the votes in wards 2, 3 and 4 on Thursday evening, November 15, 1934, which was attended by both the petitioner and the intervener. At that recount the election commissioners orally announced publicly that a recount would be held of the votes in wards 1, 5, 6 and 7 on the following evening and the recount was so held. On November 15, 1934, the petitioner filed a written protest with the election commissioners against the recount because the statutory notice had not been given him. Recounts were actually held on the dates stated in the chamber of the city council of Lynn. Two tellers were at each of ten tables in recounting the votes. These tables were arranged in a semicircle approximately two feet inside of a railing separating the space generally occupied by the members of the city council when in session from an outer space of the council chamber. This railing was approximately sixty feet long and had a height of about three feet above the floor. Each table was about four feet long. The recount was conducted under the supervision of the election commissioners by twenty tellers and two tabulators; of these there were equal numbers of Democrats and Republicans. One teller sat with his back to the railing and inspected each ballot, such ballots being within the view of persons outside of the railing, and called of the votes recorded thereon which were tabulated by the teller sitting on the opposite side of the table. The ballots were counted in blocks of...