Coughlin v. Le Clair

• Decision Date: 27 May 1936
• Parties: COUGHLIN v. LE CLAIR et al., Election Com'rs. DODGE v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 434

2 N.E.2d 461

COUGHLIN v. LE CLAIR et al., Election Com'rs.

DODGE v. SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

May 27, 1936

Exceptions from Supreme Judicial Court, Middlesex County; Field Justice.

Mandamus proceedings by James C. Coughlin and by Veronica S. Dodge against the Election Commission of the City of Lowell, in each of which the other petitioner intervened. On exceptions following report of auditor.

Exceptions overruled.

J. D O'Hearn, of Lowell, for Coughlin.

M. G Rogers, of Lowell, for Dodge.

RUGG Chief Justice.

These petitions for writs of mandamus relate to a contested election for membership of the school committee in Lowell. Each petitioner was a candidate for election as a member of that committee. In each petition, the other petitioner was allowed to intervene. Each petition was referred to the same auditor. The parties agreed that his findings of fact should be final. An identical report was filed in each case. Each petitioner filed a motion to recommit the report, alleging errors of law in the findings and rulings of the auditor. Each motion was denied. It was agreed by all parties that the ballots marked as exhibits by the auditor, so far as referred to in the motions to recommit, should be considered in the same manner as if they had been reported by the auditor. After describing these exhibits by number, there being nineteen in all, the single justice ruled specifically as follows:

‘ With respect to Exhibit 111, I rule as matter of law that the finding of the auditor that ‘ this was a Dodge vote’ is not warranted and the ballot should not be counted for either Coughlin or Dodge.'

‘ With respect to Exhibit 162, I rule as a matter of law that the finding ‘ that it was the intention of the voter to vote for Dodge’ is not warranted and that the ballot should not be counted for either Coughlin or Dodge.'

‘ With respect to Exhibit 213, I rule as a matter of law that the finding of the auditor that this was a vote for Coughlin was not warranted and that this ballot should not be counted for either Coughlin or Dodge.’

‘ With respect to Exhibit A for identification, I rule that the auditor was not wrong in admitting this ballot as an exhibit and was warranted in finding ‘ that this was a blank ballot,’ and Dodge loses one vote.'

‘ I rule, therefore, as matter of law that the votes for Coughlin and Dodge as counted by the auditor should be changed by reducing the vote for Veronica Sullivan Dodge to 17,789, and the vote for James C. Coughlin to 17,788.’

No specific rulings were made on any of the other exhibits considered, but each was allowed to stand as counted by the auditor.

The ballots considered by the single justice, the pleadings, and the auditor's report are made a part of the exceptions by reference.

In the Coughlin case the petition was dismissed as matter of law. In the Dodge case it was ordered that a writ of mandamus issue commanding the respondents to count the votes of the petitioner and intervener in accordance with the findings and rulings of the single justice. To the adverse findings and rulings, both candidates duly excepted; their several bills of exceptions are combined in a single record.

It is provided by G.L.(Ter.Ed.) c. 54, § 77, that ‘ The voter on receiving his ballot shall * * * retire alone to one of the marking compartments, and * * * prepare his ballot by marking a cross (X) in the square at the right of the name of each candidate for whom he intends to vote.’

The governing principles of law as to the counting of ballots are settled. In O'Brien v. Election Commissioners of Boston, 257 Mass. 332, at page 338, 153 N.E. 553, 556 it was said with citation of supporting authorities: ‘ The cardinal rule for guidance of election officers and courts in cases of this nature is that if the intent of the voter can be determined with reasonable certainty from an inspection of the ballot, in the light of the generally known conditions attendant upon the election, effect must be given to that intent and the vote counted in accordance therewith, provided the voter has substantially complied with the requisites of the election law; if that intent cannot thus be fairly and satisfactorily ascertained, the ballot cannot rightly be counted.’ Parrott v. Plunkett, 268 Mass. 202, 207, 167 N.E. 329; Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 277, 183 N.E. 730; Clancy v. Wallace, 288 Mass. 557, 566, 193 N.E. 546; Hall v. Barton (Mass.) 195 N.E. 753. No conjecture can be invoked as to where the cross was intended to be placed. The intent must appear with ordinary assurance of certainty and be capable of being fairly determined from inspection of the ballot; otherwise, it cannot be counted. O'Connell v. Mathews, 177 Mass. 518, 59 N.E. 195; Beauchemin v. Flagg, 229 Mass. 23, 118 N.E. 251. ...