Flanders v. Roberts

• Citation: 65 N.E. 902,182 Mass. 524
• Parties: FLANDERS et al. FLANDERS v. ROBERTS et al. (three cases). FLANDERS v. RUNKINS.
• Decision Date: 14 January 1903
• Court: United States State Supreme Judicial Court of Massachusetts

182 Mass. 524

65 N.E. 902

FLANDERS et al. FLANDERS v. ROBERTS et al. (three cases). FLANDERS v. RUNKINS.

Supreme Judicial Court of Massachusetts, Essex.

January 14, 1903

COUNSEL

Geo. Fred Williams, for petitioners.

Boyd B Jones and Jos. H. Pearl, for respondents.

OPINION

LORING J.

The main question here is whether the registrars of voters were wrong in counting 18 ballots for the Republican candidate for mayor. On these 18 ballots there was a cross of the square opposite the blank space left for the insertion of a name of a candidate whose name is not printed on the ballot, and the name of the Republican candidate was just above this blank. We are of opinion that the registrars of voters were wrong in counting those ballots as they did. The question whether these ballots were to be counted by the registrars of voters as votes for the Republican candidate, or not, was a question to be determined from what appears on the face of the ballot and not on evidence aliunde. The rule to be applied is this If the intent of the voter can be fairly determined, effect shall be given to that intent, and the vote counted in accordance therewith. This is the rule originally laid down in Re Strong, 20 Pick. 484, and continued, under the Australian ballot system, in acts which are now Rev. Laws, c. 11, § 238, providing that, if the voter's 'choice cannot be determined, his ballot shall not be counted'; and this has been recognized in this commonwealth in all the reports of committees of the legislature on which it has acted in deciding questions of this kind involved in the election of its members. See, also, Woodward v. Sarsons, L. R. 10 C. P. 733.

It must be taken to be established that where a cross is put in the square opposite the blank space left for the insertion of a name of a candidate by the voter, and nothing more appears, the ballot is not to be counted as a ballot for the candidate whose name is printed next above that space. This was so decided by this court in 1901. O'Connell v. Mathews, 177 Mass. 518, 59 N.E. 195. It had been adopted previously, in 1897, by both branches of the general court of the commonwealth, following the action of the governor's council and of the election commissioners of the city of Boston in Sullivan v. Allen, Russ. Mass. Elec. Cas. 99. In 1896 a similar decision had been made by the Massachusetts house of representatives in Re Morgan, Russ. Mass. Elec. Cas. 85. In that case the mark was opposite the space above the printed name of the first candidate, outisde of the space for those candidates, and immediately over the column of the squares for the crosses. The same conclusion has been reached in Pennsylvania. In re Flynn's Contested Election, 181 Pa. 457, 37 A. 523.

It is sought to take this case out of the rule which has now become established, because in the case at bar the voter, in case of each of the ballots in question, voted by a cross in the proper square for the Republican nominee for each one of all the other offices (11 in number) on the ballot. But the rest of each of the ballots in question shows, if it shows anything, that the voter knew exactly what he had to do if he wanted to vote for a candidate. What he has done is to throw a ballot for a blank. We may conjecture that this was a mistake, and that it is not what he intended to do. But the question is not one of conjecture, but of what the ballot shows that he intended to do. The ballot shows that he cast a blank vote for mayor, and we must hold that to have been his intention. The same conclusion was reached under similar circumstances by the house of representatives of the commonwealth in Re Morgan, Russ. Mass. Elec. Cas. 85. It is to be remarked that the earlier acts in Massachusetts did not require the cross to be put in the square (St. 1888, c. 436, § 23; St. 1889, c. 413, § 23), as the present act does (Rev. Laws, c. 11,§ 227, re-enacting St. 1893, c. 417, § 162; St. 1898, c. 548, § 224).

The second question raised by the respondents is the right of this court to correct this error, and they have argued that the court is neither a canvassing board nor a returning board. That certainly is true, but still we are of opinion that we can correct this error. We have jurisdiction to correct errors of law appearing on the face of the papers made by a returning board in counting a ballot as a vote for a candidate for office which is not a vote for that candidate. The jurisdiction was established by In re Strong, 20 Pick. 484, and it still exists, unless it has been taken away by statute. The respondents contend that it has been taken away by Rev. Laws, c. 11, § 267. Their contention is that the words 'and the records so amended shall stand as the true records of the election' prevent this court from interfering to correct an error of law, if one was made, in the recount of the votes. The phrase relied on is found for the first time in St. 1863, c 144, § 3. After that it is found in St. 1874, c. 376, § 42; St. 1876, c. 188, § 4; Pub. St. c. 7, § 36; St. 1884, c. 299, § 31; St. 1886, c. 262, § 1; St. 1890, c. 423, § 104; St. 1893, c. 417, § 207; St. 1898, c. 548, § 264. The original act (St. 1863, c. 144, § 3), and each one of the subsequent acts, apply to elections to the house of representatives of the United States, to elections to both branches of the general court of the commonwealth, and to many city councils which by their charters are final judges of their own elections. The legislature could not constitutionally have provided that the statutory recount provided for in these acts should preclude the national house of representatives or either branch of the general court of the commonwealth from dealing with any questions passed upon by the board whose duty it was to make the recount, and it cannot be held that the legislature intended by one and the same clause to preclude this court from reviewing the action of the board for errors in law in case of officers whose election is not covered by the constitution, when it is admitted that, as matter of construction, in view of the provisions of the constitution, it has not made the action of that board final in case of the members of the national house of representatives and the members of the general court. The reason for the clause is plain: The original return is made by one person or board of persons, the precinct officer; the recount by another, the registrars of voters; and the amendment by a third person, the city or town...