Greenwood v. Registrars of Voters of Fitchburg
| Decision Date | 16 February 1933 |
| Citation | 282 Mass. 74,184 N.E. 390 |
| Parties | GREENWOOD et al. v. REGISTRARS OF VOTERS OF CITY OF FITCHBURG. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report and Reservation from Superior Court, Worcester County; Donahue, Judge.
Petition by Robert E. Greenwood and others for a writ of mandamus to the Registrars of Voters of the City of Fitchburg. On reservation and report by the Superior Court.
Petition dismissed.E. W. Baker and S. M. Salny, both of Fitchburg, for petitioners.
T. K. Ware and E. H. Dudley, both of Fitchburg, for respondents.
This is a petition for a writ of mandamus. As the issues now stand the case relates to a recount of votes cast at the state election held on November 8, 1932, respectively for John J. Gilmartin, hereafter called the petitioner, and Louis N. M. Deschenes, who has been permitted to intervene and who will be hereafter called the intervenor. These two were rival candidates for election as one of the two representatives to the general court from the Eleventh Worcester district, made up of certain wards in the city of Fitchburg and of the town of Lunenburg. The result of the original count of these votes showed that the intervenor was elected. On November 16, 1932, there was a recount of the ballots cast in the city of Fitchburg. The result of that recount, in combination with the votes cast in the town of Lunenburg which were not recounted, also showed that the intervenor was elected. Certificate of his election under date of November 8, 1932, was issued on November 17, 1932, signed among others by the city clerk. Another similar certificate was issued on or about December 20, 1932. The original of each certificate was sent to the secretary of the commonwealth and a copy was sent or delivered to the intervenor. The present petition was filed on November 18, 1932. Hearings were had on it before an auditor and before a single justice wherein certain facts have been found, based chiefly on comparison of the markings and erasures on certain ballots, to the effect that at some time before thirty-seven minutes past five o'clock in the forenoon of the day following the election certain crosses were made, after the ballots had been deposited, on some of the ballots by a person other than the voters who marked and deposited the ballots and that these crosses were made for the purpose of aiding by fraud in procuring for the intervenor election to the office of representative in the general court; and that enough ballots were so marked to change the result of the election, according to the findings made, and to show that the petitioner and not the intervenor was elected as representative to the general court.
On January 10, 1933, final findings of fact were made and the case was reserved upon the facts found for determination by the full court. It came on for argument before us on February 7, 1933.
In the meantime the general court convened on January 4, 1933. By reason of the notoriety attaching to events of such public interest, it has become matter of general knowledge, of which the court take cognizance, that the certificate issued showing the election of the intervenor has been presented to the House of Representatives (G. L. [Ter. Ed.] c. 3, §§ 1, 2, and c. 54, §§ 128, 129, 135) and that the petitioner has taken action to contest the election of the intervenor, that before a committee of the House of Representativeshearings have been held, witnesses have testified and arguments have been made, and that the subject is now being considered by the committee.
It is provided by the Constitution of the commonwealth, part 2, c. 1, § 3, art. 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. * * *’ It is also provided by part 2, c. 1, § 3, art. 11: ‘And the senate and house of representatives may try and determine all cases where their rights and privileges are concerned, and which, by the constitution, they...
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Reif v. Barrett
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