Compton v. State Ballot Law Comm'n

• Decision Date: 29 May 1942
• Citation: 42 N.E.2d 288,311 Mass. 643
• Parties: COMPTON et al. v. STATE BALLOT LAW COMMISSION. SAME v. SECRETARY OF COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 643

42 N.E.2d 288

COMPTON et al.

v.STATE BALLOT LAW COMMISSION.

SAME

v.SECRETARY OF COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 29, 1942.

Report from Superior Court, Suffolk County; Williams, Judge.

Proceedings By Karl T. Compton and others for a writ of certiorari to quash proceedings before the State Ballot Law Commission to place an initiative petition on the ballot at the next state election and for a writ of mandamus commanding the Secretary of the Commonwealth to submit the proposed law to the people at such election.

Respondent commission's proceedings quashed in part, and writ of mandamus granted.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

F. B. Wallis and R. E. Goodwin, both of Boston, for petitioners.

R. Clapp, Asst. Atty. Gen., for respondents.

FIELD, Chief Justice.

These two cases, argued together, relate to the same ultimate issue-whether a measure proposed as a law by initiative petition, being ‘An Act to allow physicians to provide medical contraceptive care to married persons for the protection of life or health,’ shall be submitted to the voters at the State election to be held in 1942. The State ballot law commission, upon objections to the initiative petition, found, among other things, that one of the first ten signers of the initiative petition, Sarah T. Curwood ‘was not a person entitled to sign this petition,’ and stated: ‘we are, therefore, for this reason alone forced to decree that this initiative petition shall not go on the ballot.’ The Secretary of the Commonwealth for a like reason takes the position that it is not his duty to submit the proposed law to the voters at the State election.

One of the cases is a petition for a writ of certiorari, brought in the superior Court by nine citizens and duly qualified and registered voters in the cities and towns in which they respectively reside, against the commissioners constituting the State ballot law commission for the purpose of quashing the proceedings before said commission, above referred to. The other case is a petition for a writ of mandamus, brought in the Superior Court by the same petitioners against the Secretary of the Commonwealth, to command him to submit the proposed law to the people at the next State election. The cases were heard by a judge of the Superior Court and reported by him without decision to this court for its determination. The respondents in the certiorari case filed a return to the petition, and the case comes before us upon the petition and the return thereto. The parties, however, have agreed that the ‘facts as stated in the respondents' return are true and constitute the entire record of the proceedings of the respondents,’ and the judge has found the facts to be as so stated. In the mandamus case a statement of agreed facts was filed. No evidence other than that contained therein was introduced by either party, and the judge found the facts to be as stated in the statement of agreed facts. The case comes before us upon the petition, the answer of the respondents, and the statement of agreed facts.

The procedure fixed by the Constitution governing initiative petitions is in outline, as follows: (a) An initiative petition must ‘first be signed by ten qualified voters of the commonwealth,’ (b) and then be submitted to the Attorney General for certification ‘that the measure is in proper form for submission to the people’ and to certain other facts, and, thereafter, (c) be submitted to the Secretary of the Commonwealth who ‘shall provide blanks for the use of subsequent signers, and shall print at the top of each blank a description of the proposed measure [‘to be determined by the attorney-general’] as such description will appear on the ballot together with the names and residences of the first ten signers.' (d) The petition must then be ‘signed by the required number of qualified voters'-‘not less than twenty thousand qualified voters'-(e) and filed with the Secretary of the Commonwealth (f) who ‘shall, upon the assembling of the general court transmit it to the clerk of the house of representatives' and it ‘shall then be deemed to be introduced and pending.’ (g) If the General Court fails to enact such law, the petition must then be ‘completed by filing with the secretary of the commonwealth * * * not less than five thousand signatures of qualified voters, in addition to those signing such initiative petition,’ and (h) ‘the secretary of the commonwealth shall submit such proposed law to the people at the next state election.’ Constitution, art. 48 of the Amendments, The Initiative, Pt. II, §§ 3, 4; Pt. V, § 1; General Provisions, III.

Under the constitutional provisions above outlined, the initiative petition now in question has reached the stage where the proposed law should be submitted to the people at the next State election, unless there has been a failure to conform to the required procedure of such a nature as to preclude such submission. It is not now contended that there has been any such failure except in one respect, namely, that the petition was not ‘first * * * signed by ten qualified voters of the commonwealth’ as required by said art. 48, The Initiative, Pt. II, § 3.

First. We consider first the petition for a writ of certiorari brought against the State ballot law commission. Upon this petition, the questions for determination-a return having been filed by the respondents-are whether the commission in making its decision was acting within its jurisdiction, and whether, if it was so acting, there was error of law in its decision. The return is ‘conclusive as to all matters of fact, within their jurisdiction, passed upon by them.’ Tewksbury v. Middlesex County Commissioners, 117 Mass. 563, 565, 566;Marcus v. Board of Street Commissioners of Boston, 252 Mass. 331, 333, 147 N.E. 866.Walsh v. Judge of District Court of Springfield, 297 Mass. 472, 474, 475, 9 N.E.2d 555. On a report in this form no exercise of discretion is involved. The only question for decision is whether, as matter of law, relief appropriate to the nature of the proceeding ought to be granted. G.L.(Ter.Ed.) c. 213, § 1A (see St.1941, c. 180), § 1B (see St.1939, c. 257); c. 231, § 111; c. 249, § 4; Whitney v. Judge of District Court, 271 Mass. 448, 458, 459, 171 N.E. 648;Lowry v. Commissioner of Agriculture, 302 Mass. 111, 112, 18 N.E.2d 548.

The ‘Decree Findings and Opinions' of the State ballot law commission, set forth in its return, contain the following statements: ‘A protest has been filed to the effect that one of the ten original signers is not a qualified voter and for that reason the petition should be dismissed. The board finds one of the ten signers was Sarah T. Curwood and this appears in the record; we find as a fact that Sarah T. Curwood was a person possessing the qualifications to vote in this Commonwealth, we find as a fact that she was a registered voter in the city of Boston, we find as a fact on February 1, 1940, she moved from Boston to Cambridge and established her domicile in that city, we find as a fact that on the twenty-third day of August when she signed this petition she had been a resident of Cambridge for over six months and had been away from Boston for over six months, we find as a fact that on August 23, 1940, after she signed this petition her name was certified by the Boston Election Board. * * * The board finds that she was qualified but finds she was not a qualified voter. * * * we find, therefore, that Sarah T. Curwood was not a person entitled to sign this petition. We find that Sarah T. Curwood signed the petition with no wrongful purpose, without any intention to deceive or commit a fraud, that she was ignorant of her true legal status as a voter. We furthermore find all other of the sponsors of the petition were likewise free from any intentional fraud or purpose to deceive in permitting her to sign the original petition, but we do find that because of her mistake in having her name certified as a voter in Boston the Secretary of State was deceived into accepting her as a qualified voter. The provision of the Constitution in Article 48 lays down an imperative condition that an initiative shall be originated by a petition signed by ten qualified voters. In this case, we find that this condition precedent was not met and that the entire petition is illegal ‘ab initio’ and * * * we are, therefore, for this reason alone forced to decree that this initiative petition shall not go on the ballot.'

1. The fundamental inquiry is whether it was within the jurisdiction of the State ballot law commission to determine whether Sarah T. Curwood was entitled to sign the initiative petition as one of the ‘first ten signers.’

The constitutional requirement is that such a signer be one of the ‘qualified voters of the commonwealth.’ Art. 48 of the Amendments, The Initiative, Pt. II, § 3. But whether a person is a qualified voter of the Commonwealth depends not only upon an interpretation of these words but also upon a determination of the pertinent facts. See Capen v. Foster, 12 Pick. 485, 491, 492,23 Am.Dec. 632. The constitutional provision relating to such determination of facts is said art. 48, General Provisions,Pt. I, entitled ‘Identification and Certification of Signatures': ‘Provision shall be made by law for the proper identification and certification of signatures to the petitions hereinbefore referred to, and for penalties for signing any such petition, or refusing to sign it, for money or other valuable consideration, and for the forgery of signatures thereto. Pending the passage of such legislation all provisions of law relating to the identification and certification of signatures to petitions for the nomination of candidates for state offices or to penalties for the forgery of such signatures shall apply to the signatures to the petitions herein referred to. The general court may provide by law that no...