Com. v. Rogers
| Decision Date | 02 April 1902 |
| Citation | 63 N.E. 421,181 Mass. 184 |
| Parties | COMMONWEALTH v. ROGERS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M. J. Sughrue, Asst. Dist. Atty., for the Commonwealth.
P. J Doherty and A. E. Burr, for John Rogers.
Francis W. Kittredge, for Wm. W. Lord.
Jas. F Sweeney, F. B. Livingston, and Geo. A. Flynn, for Temple A Winsloe.
Elder, Wait & Whitman, F. E. Dickerman, and Jas. T. Pugh, for Alfred Newmarch.
This is an indictment in ten counts charging the defendants with conspiring to procure certain persons to vote at a Republican caucus, who were not entitled to vote there, and with aiding and abetting certain persons not entitled to vote in illegally voting at the same caucus. Probably in consequence of the number of counsel engaged scarcely a step was taken in the case without objection, and we shall not feel called upon to discuss each of the innumerable exceptions at length or to go much beyond the arguments addressed to us.
A motion to quash was made on behalf of the defendants Winsloe, Newmarch and Lord, and another on behalf of the defendant Rogers. The former raises the question of the constitutionality of those parts of the election act (St. 1898, c. 548) which regulate caucuses and voting at them. The right of the Legislature to pass laws which provide 'an easy and reasonable mode of exercising the constitutional right' and which are 'calculated to prevent error and fraud, to secure order and regularity in the conduct of elections, and thereby give more security to the right itself,' is settled. Capen v. Foster, 12 Pick. 485, 490, 23 Am. Dec. 632; Kinneen v. Wells, 144 Mass. 497, 11 N.E. 916, 59 Am. Rep. 105; Jaquith v. Selectmen of Wellesley, 171 Mass. 138, 143, 50 N.E. 538. Here, as elsewhere, (it might be said especially in matters of constitutional law were the fact not universal,) it is vain to point out that the difference upon which a legal distinction is based,--here the difference between seemingly useful or harmless legislation and a clearly void restriction,--is one of degree, and to ask where you are going to draw the line, as is done by the defendants. Some legislation is permissible and necessary. A line between cases differing only in degree is worked out by the gradual approach of the decisions grouped about the opposite poles. Objections, to deserve consideration, must be specific.
The regulations in question provide and govern merely a means by which political parties may get the names of their candidates printed upon the official ballot, and they must govern if they are to provide them. The statute gives another means by nomination papers. Section 140. It does not prevent any one from voting for any other persons than those whose names are printed on the ballot, or prevent people from meeting without regard to the statute, concerting their action and preparing pasters to be used upon the ballot. It does not interfere at all with the final vote for state officers, representatives and senators, which it is the most obvious purpose of the Constitution to protect. See Cole v. Tucker, 164 Mass. 486, 487, 41 N.E. 681, 29 L. R. A. 668. We may assume for purposes of decision that legislation for the limited purposes of the sections in question is subject to the protection of the right to vote secured by the Constitution. But if it is, which we do not decide, the remoteness of what it affects from the final vote is to be borne in mind when we have to decide whether it only embodies reasonable precautions or trenches upon political rights. It would be a strange inversion to say that no laws can be passed upon the mode of voting at a preliminary meeting held only for the purpose of getting names printed upon an official ballot when laws can be passed affecting the final vote. The Legislature has a right to attach reasonable conditions to that advantage, if it has a right to grant the advantage. Whether the defendants mean to deny that right, or to contend that, if any names are printed, those of all possible candidates should be, is not very clear. We see no reason to doubt that the provision for printing names presented by a fixed minimum of voters in the specified way is proper. Indeed that hardly is an open question. It is settled that the rights of others are protected by the provision for blank spaces. Cole v. Tucker, 164 Mass. 486, 488, 41 N.E. 681, 29 L. R. A. 668. Practically it is settled that there is no ground of complaint in the obviously necessary restrictions upon the number of names to be printed. Miner v. Olin, 159 Mass. 487, 34 N.E. 721. The suggestion that it is a hardship upon a voter who can write nothing but his own name is really an objection to the ballot in general, and with the objection that the statute is class legislation, is disposed of by the cases cited. See further De Walt v. Bartley, 146 Pa. 529, 23 A. 448; Ransom v. Black, 54 N. J. Law, 446, 24 A. 489, 1021, 16 L. R. A. 769.
One specific objection urged is that by section 91 no person having voted in the caucus of one political party shall be entitled to vote or take part in the caucus of another political party within the ensuing twelve months. It seems to us impossible to say as matter of law that this is not a reasonable precaution against the fraudulent intrusion of members of a different party for sinister purposes.
It is objected further that an attempt is made to require greater qualifications for voting than are required by the Constitution, by the provision for the use of the voting lists as check lists, and the denial of the right to vote to those whose names do not appear upon the lists. It is suggested that the registration under sections 36-38 may be closed twenty days before the caucus, so that persons who become qualified in the interim are not allowed to vote. For the purposes of a preliminary meeting, this again does not seem to us an unreasonable precaution, and we cannot say as matter of law that the time allowed is unreasonable. The actual interim presumably will be much less, under the requirement that the registrars hold at least one session on or before the Saturday last preceding the first caucus preceding the annual State election. The provision in section 50 for registering minors who will reach full age before the election day must not be forgotten.
The statute is objected to as requiring illegal taxation because the city or town must bear the expense of the caucuses, and thus tax-payers are made to contribute to the support of a party or parties which they do not approve. The disapproval of a minority does not exempt them from bearing their share of public burdens while they continue to live in a State which they are free to leave. The expense, considered as a whole, is for the purpose of making it easier and more certain that the community shall elect the public officers whom it wants. This is not the less a public purpose that a part of the expenditure necessarily is for the separate convenience of the separate groups out of whose action emerges the expression of the public will.
The motions to quash set up that the indictments are bad on other grounds beside the supposed invalidity of the statute. It is said that there is a misjoinder of counts. But conspiracy to procure illegal voting and aiding and abetting in illegal voting are 'similar in their nature, mode of trial, and punishment.' Com. v. Leach, 156 Mass. 99, 101, 30 N.E. 163; Pettes v. Com., 126 Mass. 242, 245. The latter is punished by imprisonment in jail not exceeding one year (St. 1898, c. 548, § 390), the former conformably to the common usage and practice in the State (Pub. St. c. 215, § 1; Rev. Laws, c. 220, § 4). In either case imprisonment might be in the House of Correction instead of in the jail. Pub. St. c. 215, § 3 (Rev. Laws, c. 220, § 5). It was not necessary to aver that the different counts were different descriptions of the same offense. The offenses intended to be charged were different, and the joinder was permissible at common law and did not depend upon Pub. St. c. 213,§ 18 (Rev. Laws, c. 218, § 45). Com. v. Ismahl, 134 Mass. 201. We see no injustice and no embarrassment in the conduct of their case of which the defendants can complain.
It is said that the first count is bad because it does not show how the persons whom the defendants conspired to procure to vote were not entitled to vote. The allegation embraces persons unknown so that the requirement is impossible, and this illustrates the fact that such a conspiracy might be completed before any of the persons to be procured had been agreed upon. But it follows from that fact that the particular nature of the disqualification is in no way material to the offense. Therefore it seems to us unnecessary to the defense to require it to be alleged. In U.S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588, the object of the conspiracy was not stated with reasonable certainty. Perhaps it is only another form of words for the same thought to say that the mode of disqualification is a fact one degree more remote than the principal constituent elements of the crime, and that for that reason the disqualification may be alleged in general terms. See cases cited in May v. Wood, 172 Mass. 11, 15, 51 N.E. 191; State v. Marshall, 45 N.H. 281, 285, 286. There is no doubt that the count set forth a crime at common law. See Com. v. Silsbee, 9 Mass. 417; Com. v. Hoxey, 16 Mass. 385; Com. v. McHale, 97 Pa. 397, 406, 39 Am. Rep. 808; Com. v. Waterman, 122 Mass. 43, 57. See further St. 1898, c. 548, § 377.
It may be worth remarking that Com. v. Boynton, cited in Com. v Hunt, 1 Thacher, Cr. Cas. 609, 640, and in Com. v. Waterman, is not an authority, as it appears from the records that the allegation of conspiracy was merely ...
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