Cole v. Tucker

• Decision Date: 19 October 1895
• Citation: 41 N.E. 681,164 Mass. 486
• Parties: COLE v. TUCKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 486

41 N.E. 681

COLE v. TUCKER et al.

Supreme Judicial Court of Massachusetts, Hampshire.

October 19, 1895

COUNSEL

Charles G. Delano, for plaintiff.

Albert E. Addis, for defendants.

OPINION

FIELD C.J.

It is necessary in this case to determine the constitutionality of St.1893, c. 417. This question was discussed in Miner v Olin, 159 Mass. 487, 34 N.E. 721, but the court there expressed no opinion upon it. The defendants in the present case were election officers at an annual election for city officers in the city of Northampton, and refused to allow the ballot offered by the plaintiff to be deposited in the ballot box; and the ballot was not deposited, and was not counted in the election. It was a printed ballot, designated in print at the head of it as the "Regular Prohibition Ticket." The official ballot provided for use at the election had on it the names of the candidates of the Republican and the Democratic parties for office, but no other names, and the plaintiff wished to vote for the candidates of the Prohibition party. The plaintiff was a duly-qualified voter whose name was upon the check list.

The qualifications of voters for town and city officers are not prescribed by the constitution, but by statute; but we do not think it necessary to consider whether, so far as the question in this case is concerned, a distinction can be made between the powers of the general court to prescribe the manner of casting ballots at elections for city and town officers, and at elections for state officers or for state representatives or senators. Article 9 of the declaration of rights of the constitution is as follows: "All elections ought to be free; and all the inhabitants of this commonwealth having such qualifications as they shall establish by their frame of government, have an equal rights to elect officers, and to be elected, for public employments." This, in terms, relates to inhabitants having such qualifications as are established by the frame of government, but we assume that the same principles apply to electors whose qualifications are established by statute. In regard to the right of voting for state officers, where the qualifications are prescribed by the constitution, the court, in Capen v. Foster, 12 Pick. 485, say: "And this court is of opinion that in all cases where the constitution has conferred a political right or privilege, and where the constitution has not particularly designated the manner in which the right is to be exercised, it is clearly within the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations in regard to the time and mode of exercising that right which are designed to secure and facilitate that right in a prompt, orderly, and convenient manner. Such a construction would afford no warrant for such an exercise of legislative power as, under the pretense and color of regulating, should subvert or injuriously restrain the right itself." See Kinneen v. Wells, 144 Mass. 497, 11 N.E. 916.

The principal question, then, is whether St.1893, c. 417, is a reasonable regulation of the manner in which the right to vote shall be exercised, or whether it subverts or injuriously restrains the exercise of this right. The provisions of the statute requiring the use of an official ballot do not touch the qualifications of the voters, but they relate to the manner in which the election shall be held. In general, it may be said that the so-called "Australian Ballot Acts," in the various forms in which they have been enacted in many of the states of this country, have been sustained by the courts, provided the acts permit the voter to vote for such persons as he please, by leaving blank spaces on the official ballot, in which he may write, or insert in any other proper manner, the names of such persons, and by giving him the means, and a reasonable opportunity, to write in or insert such names. State v McMillan, 108 Mo. 153, 18 S.W. 784; Common Council v. Rush, 82 Mich. 532, 46 N.W. 951; Attorney General v. May, 99 Mich. 538, 58 N.W. 483; De Walt v. Bartley, 146 Pa.St. 529, 24 A. 185; State v. Black (N.J.Sup.) 24 A. 489; State v. Dillon (Fla.) 14 So. 383; Slaymaker v. Phillips (Wyo.) 40 P. 971; People v. President, etc., of Village of Wappinger's Falls, 144 N.Y. 616, 39 N.E. 641; Sego v. Stoddard (Ind.Sup.) 36 N.E. 204; Taylor v. Bleakley (Kan.Sup.) 39 P. 1045; Curran v. Clayton (Me.) 29 A. 930; Whittam v. Zahorik (Iowa) 59 . N.W. 57; Bowers v. Smith (Mo.Sup.) 20 S.W. 101. Without reciting in detail the provisions of St.1893, c. 417, the material portions of which, relevant to the...