Dinan v. Swig

• Decision Date: 06 April 1916
• Parties: DINAN et al. v. SWIG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 516

112 N.E. 91

DINAN et al.

v.SWIG.

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1916.

Report from Superior Court, Suffolk County; Jabez Fox, Charles F. Jenney, and William D. McLaughlin, judges.

Petition by Joseph J. Dinan and others against Simon Swig. Report by three judges of the superior court on the question whether the statute involved was constitutional so far as it imposed duties upon the court with reference to the election of a member of the Legislature. Question answered in the negative.

Jos. P. Walsh, of Boston, for petitioners.

Herbert Parker and Asa P. French, both of Boston, and Louis Swig, of Taunton, for respondent.

RUGG, C. J.

This is a petition brought under St. 1913, c. 835, § 369, as amended by St. 1914, c. 783, § 10, which relates to corrupt practices in elections, against the defendant, elected a member of the General Court of the commonwealth for 1916. Summarily stated, the statute so far as here material requires three judges of the superior court, upon petition of five or more voters having reasonable cause to believe that there has been committed by a successful candidate (for whom they had a right to vote) in connection with his election or in his interest and behalf, a corrupt practice as defined in the act, to investigate the election. If after a hearing it is found that such corrupt practice has been committed, then the court is given power to enter a decree [section 10 (g)] ‘declaring void the election of the defendant to the office in question, and ousting and excluding him from such office and declaring the office vacant: Provided, however, that if an election petition is brought to investigate the election of a member of the Senate or House of Representatives of the commonwealth, or of the United States Congress, and the court or a majority of them shall find that violations of this act have been committed with reference to such election, of such a nature that a decree would otherwise be entered declaring void the election or ousting or excluding the candidate from such office and declaring the office vacant, the court shall, subject to the limitations and conditions hereinbefore prescribed, enter a decree declaring that with respect to the election of the said candidate a corrupt practice was committed and setting forth the facts relative to such finding, and shall forthwith certify the decree and declaration to the secretary of the commonwealth, to be by him transmitted to the presiding officer of the legislative body to which the defendant was elected.’

[1] Proceedings have been had in accordance with the terms of this statute and a finding with appropriate details has been made that the defendant, elected a member of the House of Representatives of the commonwealth, committed corrupt practices in connection with his election. The three judges then reported to this court amongst other matters the question whether the statute is constitutional so far as it imposes duties upon the court with reference to the election of a member of the Legislature.

The pertinent provision of the Constitution is in part the second, chapter 1, section 3, article 10:

‘The House of Representatives shall be the judge of the returns, elections, and qualifications of its own members, as pointed out in the Constitution. * * *’

The power to pass upon the election and qualification of its own members thus is vested exclusively in each branch of the General Court. No other department of the government has any authority under the Constitution to adjudicate upon that subject. The grant of power is comprehensive, full and complete. It is necessarily exclusive, for the Constitution contains no words permitting either branch of the Legislature to delegate or share that power. It must remain where the sovereign authority of the state has placed it. General phrases elsewhere in the Constitution, which in the absence of an explicit imposition of power and duty would permit the enactment of laws to govern the subject, cannot narrow or impair the positive declaration of the people's will that this power is vested solely in the Senate and House respectively. It is a prerogative belonging to each House, which each alone can exercise. It is not susceptible of being deputed. As was said by Chief Justice Gray in Peabody v. School Committee of Boston, 115 Mass. 383, at 384:

‘It cannot be doubted that either branch of the Legislature is thus made the final and exclusivejudge of all questions, whether of law or of fact, respecting such elections, returns or qualifications, so far as they are involved in the determination of the right of any person to be a member thereof.’

If the statute should be construed as conferring upon the three judges of the superior court final jurisdiction to pass upon the issue whether a successful candidate had been guilty of corrupt practices, it would be in derogation of the express grant of the Constitution because it would deprive each branch of the Legislature of the unlimited right to be ‘the judge of the * * * elections and qualifications of its own members.’ No legislative body can be the sole judge of the election and qualifications of its members when it is obliged to accept as final a decision touching the purity of the election of one of its members made by another department of the government in an inquiry to which that legislative body is not a party and which it has not caused to be instituted. The proceeding created by the instant statute does not emanate from either branch of the Legislature. It is set in motion only by the initiative of five or more voters. It may result in sending to the legislative branch, to which the defendant has been elected, a decree setting forth the determination of the judges that a corrupt practice has been committed. That decree may be ignored by the branch of the Legislature to which it is sent. There is no legal compulsion resting upon that branch to take action respecting such decree. Only its sense of self-respect and duty to the whole commonwealth to purge itself of a member unworthy his office would impel it to pay heed to the decree. If action should be taken, it still would be open for that branch of the...