McRobbie v. Registrars of Voters of Ipswich
| Decision Date | 31 March 1948 |
| Citation | 78 N.E.2d 498,322 Mass. 530 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | STUART MCROBBIE v. REGISTRARS OF VOTERS OF IPSWICH. SAME v. REGISTRARS OF VOTERS OF IPSWICH & another. |
February 3, 1948.
Present: QUA, C.
J., LUMMUS, RONAN WILKINS, & WILLIAMS, JJ.
Elections.
To invalidate an election where illegal votes were received and counted, it must be proved that the illegal votes changed the result.
In proceedings in the Superior Court to determine the result of a contested election in a town, where it appeared that certain ballots issued to absentee voters because of physical disability and received and counted, were illegal under the provisions of Section 92 of G. L. (Ter. Ed.) c.
54, as appearing in St. 1945, c. 466, Section 4, and Section 95 as appearing in
St. 1936, c.
404, Section 6, as amended, because the voters had made the necessary affidavits before one of the contesting candidates as a notary public such voters on their own testimony properly were found to have cast their ballots for that candidate; and such ballots were ordered not to be counted for him.
PETITION, filed in the Superior Court on March 25, 1947, for a writ of mandamus, consolidated and considered by the court with a
BILL IN EQUITY, filed in the same court on April 18, 1947, and afterwards amended.
The consolidated proceeding was heard by Forte, J., upon a report by one appointed as both auditor and master, and was reported to this court without decision.
F. H. Magison, for the petitioner. W. F. Hayes, Town Counsel, for the Registrars of Voters.
The question in this case is whether one Wallace, or the petitioner McRobbie, was elected a selectman of Ipswich at an election held on March 10, 1947. That question depends upon the effect of certain ballots sent to the town clerk by mail by voters who were not present at the polls to cast their ballots in person. Wallace was declared elected, and the petitioner McRobbie contests the election.
This proceeding began as a petition for a writ of mandamus. Later the petitioner brought a bill in equity for the same cause, and this by decree of the Superior Court was, without objection "consolidated with and fused in said proceeding at law." Lumiansky v. Tessier, 213 Mass. 182 , 189. Katauskas v. Lonstein, 266 Mass. 29 , 32, 33. In O'Brien v. Election Commissioners of Boston, 257 Mass. 332 , and Hall v. Barton, 290 Mass. 476 , mandamus was employed to determine an election contest over the validity of ballots. By G. L. (Ter. Ed.) c. 54, Section 103, a bill in equity may be employed to enjoin the counting of any ballot "which was not cast in accordance" with Sections 86 to 102 of said chapter, which relate to voting by absent voters.
Amendment 76 to the Constitution of Massachusetts, adopted in 1944, provides that "The general court shall have power to provide by law for voting, in the choice of any officer to be elected or upon any question submitted at an election, by qualified voters of the commonwealth who, at the time of such an election, are absent from the city or town of which they are inhabitants or are unable by reason of physical disability to cast their votes in person at the polling places." The laws governing voting by absent or disabled voters were made applicable to town elections by G. L. (Ter. Ed.) c. 54, Section 103A, as appearing in St. 1937, c. 77, Section 1, as most recently amended by St. 1946, c. 118. It is not disputed that those laws were applicable to town elections in Ipswich. Those laws are found in G. L. (Ter. Ed.) c. 54, Sections 86-103A, as amended. By Section 92, as appearing in St. 1945, c. 466, Section 4, a voter who has received an official ballot and is not to be personally present at the polls "shall mark said ballot in the presence of an official authorized by law to administer oaths," and, after enclosing the ballot in an envelope for mailing to the town clerk, shall "execute before said official the necessary affidavit on said envelope," showing his right to cast such a ballot. It is provided by that section that "Any ballot which was applied for by a voter because he would be unable by reason of physical disability to cast his vote in person at the polling place at an election shall be defective if the official in whose presence it was marked and before whom the affidavit required was executed is a candidate for office at such election." By Section 95, as appearing in St. 1936, c. 404, Section 6, as amended by St. 1945, c. 466, Section 5, an envelope which bears "an affidavit executed in violation of section ninety-two before an official who is a candidate for election at the election," is not to be opened so as to reveal the ballot but is to be marked "Rejected as defective." Evidently the law contemplates that an unlawful affidavit before a candidate shall prevent the counting of the ballot contained in the envelope upon which the unlawful affidavit appears.
The same person was appointed auditor and master in the case as consolidated, and filed a single report as such, which was confirmed, and the judge found "such findings of fact as appear in the report of the auditor." The confirmation of the report impliedly overruled all exceptions to it. Fuller v.
Fuller, 228 Mass. 441 , 443. Simpson v. Bright, 257 Mass. 309 , 330. Untersee v. Untersee, 293 Mass. 132 , 135. De Angelis v. Palladino, 318 Mass. 251, 255, 256. Neither party contends that the report ought not to have been confirmed. The case comes here upon a report by the judge, without decision. G. L. (Ter. Ed.) c. 214, Section 30; c. 231, Section 111.
The report of the auditor and master shows the following facts. After the balloting was finished, the ballots were counted, and the original count showed one thousand two hundred eighty-five for McRobbie and one thousand two hundred ninety-two for Wallace. On a recount by the respondent registrars of voters on March 16, 1947, McRobbie and Wallace each lost a vote. There were sixty-six ballots sent in by mail under the absent voting law. Of these, forty-six voted for Wallace and twenty for McRobbie. Thirteen ballots were issued because of the physical disability of the voter. These were given to Wallace, and by him given to the voters. In each of these thirteen cases Wallace acted as notary public in the making of the required affidavit. For that reason, these ballots were invalid, and should not have been counted. But it is not enough to invalidate an election, that illegal votes were received. There must be proof that the reception of the illegal votes changed the result. First Parish in Sudbury v Stearns, 21 Pick. 148, 154....
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