Hitchcock v. Board of Examiners of Hampshire County
| Decision Date | 14 September 1938 |
| Citation | 301 Mass. 170,16 N.E.2d 678 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | N. SEELYE HITCHCOCK v. EXAMINERS FOR HAMPSHIRE COUNTY& others. |
November 2, 1937.
Present: DONAHUE LUMMUS, QUA, & DOLAN, JJ.
Board of Examiners. Elections. The duties of a board of examiners are fixed by G L. (Ter. Ed.) c. 54,
Section 122, and are ministerial only: in determining to whom to issue a certificate of election the board has no power to ascertain whether election officers or town clerks properly performed their duties respecting the election.
PETITION, filed in the Supreme Judicial Court for the county of Hampshire on December 29, 1936, for a writ of mandamus.
A demurrer was sustained by Field, J., and the case reported to the full court.
The case was submitted on briefs. N. S. Hitchcock, pro se.
K. H. Hemenway, H.
L. Burns, for the respondent Bisbee.
This is a petition for a writ of mandamus. The petitioner was a candidate for election to the office of county commissioner for the county of Hampshire at a State election. The respondents are a majority of the board of county commissioners of Hampshire County; Charles A. Bisbee who was also a candidate for the office of county commissioner at the same election; and the judge and the register of the Probate Court and the clerk of courts of that county, who at the time of the election and of the filing of the petition constituted the board of examiners of the county (G. L. [Ter. Ed.] c. 54, Section 122). The board of examiners issued to the respondent Bisbee a certificate of election to the office of county commissioner. The petitioner alleges that he, and not Bisbee, was duly elected county commissioner and that the board of examiners erred in not so declaring and in not issuing to him a certificate of election to that office.
The petition contained prayers that the tabulations of the votes for county commissioner in the town of Cummington, in precinct B in the town of Williamsburg and in precinct A in the town of South Hadley, "be declared void and excluded in determining the result of the election"; that the board of examiners be ordered to recall its certificate of election issued to Bisbee and to issue a certificate of election to the petitioner; that the respondent county commissioners be ordered to recognize the petitioner as county commissioner; and that the respondent Bisbee refrain from "intruding himself as a county commissioner."
The case was heard by a single justice of this court on a demurrer filed by the respondent Bisbee. The single justice entered an order sustaining the demurrer, and reported the case to the full court at the request of the petitioner and on his agreement that, if the order was rightly entered, the petition should be dismissed.
The petition alleges in general terms the failure on the part of some of the election officers in precinct B of the town of Williamsburg and in precinct A of the town of South Hadley and of the clerks of those towns to perform their respective duties according to law. It also alleges in general terms that subsequent investigations disclosed irregularities and disregard of legal requirements in the conduct of the town clerk and election officers of the town of Cummington. These general allegations, stating conclusions as to the conduct of the public officials referred to, without any specification of acts or of facts, do not provide material for a judicial determination. They are not admitted by the demurrer. Boston v. Treasurer & Receiver General, 237 Mass. 403, 415. Berkwitz v. Dunham, 269 Mass. 65 . Wesalo v. Commissioner of Insurance, 299 Mass. 495 , 498.
The only specific allegations in the petition with respect to the conduct of election officers or town clerks in any of the three towns mentioned in the petition refer to officers in the town of Cummington. The petition alleges that, there, "the presiding officer" at the counting of the votes, after the polls were closed on election day, announced that the respondent Bisbee had received two hundred sixty-nine and the petitioner two hundred sixty-five votes, and that on the following morning the town clerk made the same statement to the petitioner, but later in the day told other persons that one hundred sixty-five and not two hundred...
To continue reading
Request your trial