Madden v. Bd. of Election Com'rs of City of Boston

• Decision Date: 30 January 1925
• Parties: MADDEN v. BOARD OF ELECTION COM'RS OF CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 95

146 N.E. 280

MADDEN

v.BOARD OF ELECTION COM'RS OF CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 30, 1925.

Mandamus by William Madden against the Board of Election Commissioners of the City of Boston and others to compel respondents to certify petitioner's election to office. Peremptory writ to issue.A. D. Hill and F. Adams, both of Boston, for petitioner.

RUGG, C. J.

This is a petition for a writ of mandamus of compel the respondents to certify the election of the petitioner to the office of a representative in the General Court for the Fifteenth Suffolk district. The case is submitted on agreed facts. They show that the voters of the Fifteenth Suffolk district were entitled at the election on November 4, 1924, to elect two representatives to the General Court. The names of William A. Canty and Joseph M. Ward and no others were printed on the official ballot, each name being followed by the word ‘Democratic.’ William A. Canty died early in the morning of the day before election. That fact was generally known throughout the district and notices of his death were prominently printed in the newspapers of that day. The specimen annexed to the record shows that there was headline announcement covering six of the eight columns of the first page of the newspaper and that an obituary filled more than one-fourth of a column of the first page, running onto a later page. On election day stickers carrying the name of the petitioner were distributed. He was a member of the Democratic party and was generally known to be such by the voters and residents of said district. The supporters of the petitioner, knowing that the name of William A. Canty was still on the official ballot and for the purpose of making cartain that no votes should be cast for him in ignorance of the fact that he was not living, stationed two persons near each of the 11 polling places in the district. These persons were instructed to inform each voter approaching the polling booth of the fact that William A. Canty had died. These persons would testify that each voter going to the polls was so informed. The result of the balloting was that 5,317 votes were cast for Joseph M. Ward, 2,942 votes for William A. Canty, 1,165 votes for the petitioner, and a much smaller number of votes for several others. The petitioner, who contends that Joseph M. Ward and himself were elected representatives, caused the respondents to be notified of the fact that William A. Canty died on November 3, 1924, the day before election. The respondents, knowing of the fact of Mr. Canty's death, refused to certify that the petitioner was elected, but did file a certificate with the secretary of the commonwealth to the effect that at the election on the 4th day of November, 1924, ‘William A. Canty, 430 Centre St., Boston, and Joseph M. Ward, 38 School St., Boston, were elected’ as representatives to the General Court from the Fifteenth Suffolk district.

It is plain from these agreed facts that in general the voters of the district knew and those who went to the polls had in addition specific notice that William A. Canty had died on the day before election. He had ceased to exist before election day. He had vanished as a possible participant in human affairs.

[1][2] One who has died before election cannot be a candidate for an office or elected to an office. Valid votes for election to an office cannot be cast for one who is no longer alive. It is equivalent to throwing away a vote knowingly to cast it for one who has passed from earth to the great beyond. It is of no more effect than to deposit a blank ballot, or one marked with a fictitious or historic name. This is not a doubtful question. It requires no discussion of legal principles. No process of reasoning is necessary to convince the intelligence. It is exiomatic. It is not open to debate. It is obvious to everybody.

[3] It is equally plain that the respondents were doing a vain thing and asserting an impossibility in certifying that William A. Canty was elected to the office of representative in the General Court. They were required to make a certificate to the secretary of the commonwealth of ‘election of the persons appearing to be elected.’ G. L. c. 54, § 128. The word ‘persons' means living human beings. Sawyer v. Mackie, 149 Mass. 269, 21 N. E. 307. The respondents ought to have stated in their certificate to the secretary the fact as to the decease of Mr. Canty before the day of election as they knew it indisputably to be.

[4] The question is whether the election for the second representative from the Fifteenth Suffolk district was a nullity or whether the petitioner was elected. It was said in the opinion in People ex rel. Furman v. Clute, 50 N. Y. 451, 461 (10 Am. Rep. 508):

‘It is the theory and the general practice of our government that the candidate who has but a minority of the legal votes cast does not become a duly elected officer. But it is also the theory and practice of our government, that a minority of the whole body of qualified electors may elect to an office, when a majority of that body refuse or decline to vote for any one for that office. Those of them who are absent from the polls, in theory and practical result are assumed to assent to the action of those who go to the polls; and those who go to the polls, and who do not vote for any candidate for an office, are bound by the result of the action of those who do; and those who go to the polls and who vote for a person for an office, if for any valid reason their votes are as if no votes, they also are bound by the result of the action of those whose votes are valid and of effect. As if, in voting for an office to which one only can be elected, two are voted for, and their names appear together on the ballot, the ballot so far is lost. The votes are as if for a dead man or for no man. They are thrown away; and those who cast them are to be held as intending to throw them away, and not to vote for any person capable of the office. And then he who receives the highest number of earnest valid ballots, is the one chosen to the office. * * * They who, knowing that a person is ineligible to office by reason of any disqualification, persistently give their ballots for him, do throw away their votes, and are to be held as meaning not to vote for any one for that office. * * *’

At page 466:

‘We think that the rule is this: the existence of the fact which disqualifies, and of the law which makes that fact operate to disqualify, must be brought home so closely and so clearly to the knowledge or notice of the elector, as that to give his vote therewith indicates an intent to waste it.’

This is a succinct and clear statement of the law. Amplification will not elucidate it. It is precisely applicable to the facts here disclosed. It is agreed that the death of Mr. Canty on November 3, 1924, was on that day generally brought home to the knowledge of the voters of the Fifteenth Suffolk district. That is a district in the city of Boston, where numerous daily papers are printed and widely circulated. The attention of every voter who went to the polls on election day was directed specifically to the fact of the death of Mr. Canty. Therefore there is no room for doubt that the votes nominally cast for Mr. Canty were deposited in the ballot box with the knowledge that he had died the day before the election day. The motives of those who thus cast ballots are not revealed on this record. We assume that they were unexceptional as humane sentiments. It may have been done as a tribute of respect to his memory or as some expression of sorrow for his decease. Elections are not held for any such purpose. Purity of motive cannot clothe with vitality an act which is in its very nature a nullity. Elections are held at great public expense for the single purpose of selecting those who are to hold public office and of enabling voters to express their preference as to questions concerning government lawfully placed upon the ballot. Those who attempt to use the machinery of election to any other end, whatever it may be, are acting contrary to the whole theory of elections. They cannot complain if those who resort to the polls and act in conformity to the theory and right practice of elections accomplish the aim of the election by choosing the officers required by law to be chosen.

No one would contend, if the votes cast for Mr. Canty had been blank ballots or had contained three names for representative properly marked, two only being capable of election, that the petitioner would not have been elected. The same result follows on the facts here disclosed. The petitioner received the second largest number of votes cast for any candidate capable of being voted for. He was elected by a plurality of the votes susceptible of being counted under the law. Article 14 of Amendments to the Constitution. Any other...