Gilligan v. Registrars of Voters of Wilmington

• Citation: 82 N.E.2d 3,323 Mass. 346
• Parties: MARY E. GILLIGAN v. REGISTRARS OF VOTERS OF WILMINGTON.
• Decision Date: 02 November 1948
• Court: United States State Supreme Judicial Court of Massachusetts

323 Mass. 346

82 N.E.2d 3

MARY E. GILLIGAN v. REGISTRARS OF VOTERS OF WILMINGTON.

Supreme Judicial Court of Massachusetts, Middlesex.

November 2, 1948

October 5, 1948.

Present: QUA, C.

J., LUMMUS, DOLAN WILKINS, & WILLIAMS, JJ.

Elections. Mandamus.

Equity Pleading and Practice, Appeal, Report of material facts. Upon an appeal under G. L. (Ter. Ed.) c. 213, Section 1D, inserted by St.

1943, c. 374 Section 4, from a judgment in a mandamus case, with a report of the material facts but without a report of the evidence documentary exhibits annexed to the record but not incorporated therein by the trial judge by reference or otherwise must be disregarded by this court.

Voluntary findings by the trial judge of all the facts necessary to determine the issue involved in a mandamus case should be treated as a

"report of material facts" upon an appeal from a judgment under G L. (Ter. Ed.) c. 213, Section 1D, inserted by St. 1943, c. 374, Section 4.

If a voter substantially complies with the election statute and so marks his ballot that it indicates with reasonable certainty the candidate for whom he intends to vote, his ballot must be counted in accordance with that intent notwithstanding that the mark made by him is not a cross.

Upon a report of material facts, without a report of the evidence, on an appeal under G. L. (Ter. Ed.) c. 213, Section 1D, inserted by St. 1943, c. 374, Section 4, from a judgment in a mandamus case respecting a contested election, this court could not say that the trial judge was in error in finding that three voters intended to vote for the petitioner by ballots which were in evidence before him but were not before this court, where he also found that on one of the ballots there was marked a cross in the box opposite the petitioner's name and a diagonal line in the box opposite the name of the opposing candidate, that on another of the ballots there was marked a diagonal line in the box opposite the petitioner's name, and that on the third ballot there was "marked . . . a diagonal line crossed by two intersecting lines."

PETITION for a writ of mandamus, filed in the Superior Court on March 17, 1948.

The case was heard by Dowd, J. In this court the case was submitted on briefs.

F. H. Magison, for Farrell.

M. Singer & N.

Learner, for the petitioner.

WILLIAMS, J. This is a petition for a writ of mandamus against the board of registrars of voters of the town of Wilmington with whom Marion V. Farrell, as ex officio a member of the board, has been joined as respondent by amendment. The petition seeks to have the petitioner declared elected town clerk of Wilmington by reason of an election held on March 11, 1948, at which the petitioner and said Marion V. Farrell were candidates for that office. It is agreed that on the initial count the petitioner received seven hundred two votes and Farrell seven hundred three votes. After a recount conducted by the respondents the vote was not changed. The issue before us involves the proper interpretation of three disputed ballots which the original respondents refused to count for either candidate. The judge in the Superior Court found and ruled as follows: "I find that on the ballot marked with a cross in the box opposite the name of Mary E. Gilligan and a diagonal line in the box opposite the name of Marion V Farrell, it was the intention of the voter to vote for Mary E. Gilligan; on the ballot marked with a diagonal line in the box opposite the name of Mary E. Gilligan, I find that the intention of the voter was to vote for Mary E. Gilligan; on the ballot marked by a diagonal line crossed by two intersecting lines,

I find that it was the intention of the voter to vote for Mary E. Gilligan. I rule that the three disputed ballots should be counted as votes for Mary E. Gilligan by said board and that she be declared elected by said board to the office of town clerk of the town of Wilmington by the following vote, to wit: Mary E Gilligan . . . . 705 Marion V. Farrell . . . . 703." Judgment was entered...