Moore v. Election Com'rs of Cambridge

• Decision Date: 23 June 1941
• Citation: 35 N.E.2d 222,309 Mass. 303
• Parties: ANDREW L. MOORE v. ELECTION COMMISSIONERS OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 303

35 N.E.2d 222

ANDREW L. MOORE v. ELECTION COMMISSIONERS OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

June 23, 1941

March 3, 1941.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Constitutional Law Elections, Legislative control of political subdivisions Republican form of government. Elections. Municipal Corporations, City charter. Jurisdiction, Justiciable question. Practice, Civil, Report. Cambridge. G. L. (Ter Ed.) c. 231, Section 111; St. 1939, c. 257, gave a judge of the

Superior Court no power to report to this court a mandamus case without decision and merely "upon the pleadings" although the answer admitted all facts alleged in the petition and alleged no further fact.

Although a report by a judge of the Superior Court of a mandamus case was ordered discharged as beyond the power of the judge to make it and the case was remanded for further hearing, this court, specifically stating that no general rule of practice was intended to be established by such action, considered and determined the case upon the merits for the guidance of the Superior Court since the case had been fully argued and it appeared that the public interest required its speedy disposition and that but one conclusion could be reached upon the record.

There is no constitutional objection to the Plan E form of government providing for proportional representation involving limited and preferential voting (G. L. [Ter. Ed.] c. 43, Sections 93-116, added by

St. 1938, c.

378, Section 15; c. 43, Sections 31, 36, amended respectively by Sections 12, 13, of said c. 378; c. 54A, Sections 9-16, excepting Section 16[b] in the form appearing in St. 1938, c. 341,

Section 1) on the ground that its adoption by a city results in inequality among the several cities in the right of duly qualified voters to elect municipal officers.

Plan E, as applied to Cambridge, is not unreasonable either in providing for limited voting and preferential voting or in its provisions respecting counting of ballots, although some element of chance may be involved, and is not in conflict with any specific provision of the

Constitution of this Commonwealth or of the Federal Constitution.

Article 9 of the Declaration of Rights is not to be construed as granting a right to vote for all officers to be elected in a city, treated as a single election district; it goes no farther than to guarantee equality among all duly qualified voters of the right to elect officers. Whether a statute violates the provision of art. 4, Section 4, of the

Constitution of the United States that the United States shall guarantee every State a republican form of government is not a justiciable question.

PETITION, filed in the Superior Court on November 29, 1940, for a writ of mandamus.

The case purported to be reported by Forte, J.

J. A. DeGuglielmo, (A.

L. Moore with him,) for the petitioner.

G. A. McLaughlin & R.

H. Davison, (L.

Wheeler, Jr., J. F. Farr, & J. M. Capron with them,) for the respondents.

FIELD, C.J. This is a petition for a writ of mandamus brought in the Superior Court. G. L. (Ter. Ed.) c. 213, Section 1A (see St. 1941, c 180); c. 249, Section 5. The petitioner is a resident and legal voter of the city of Cambridge. The respondents are the duly appointed and qualified board of election commissioners of said city. See St. 1921, c. 239, as finally amended with respect to Section 3 thereof by St. 1939, c. 432; Kidder v. Mayor of Cambridge, 304 Mass. 491 . The petitioner seeks an order that the respondents conduct the municipal election in Cambridge in 1941 in accordance with the provisions of G. L. (Ter. Ed.) c. 43, as amended, particularly Sections 56-63 thereof, describing the present form of government of said city and known as Plan B, on the ground that the form of government adopted by said city in 1940, known as Plan E, described in G. L. (Ter. Ed.) c. 43, Sections 93-116, added to said chapter by St. 1938, c. 378, Section 15, and referring therein to G. L. (Ter. Ed.) c. 54A, inserted in the General Laws by St. 1938, c. 341, Section 1, involving proportional representation, is in violation of the Constitution of the Commonwealth and of the Constitution of the United States and therefore an election conducted in accordance with such plan would violate and interfere with the "petitioner's right to vote and have his vote counted."

Rightly no contention is made that the petitioner is not a proper party to bring the petition. See Brewster v. Sherman, 195 Mass. 222; Brooks v. Secretary of the Commonwealth, 257 Mass. 91 , 94-95, and cases cited; Cape Cod Steamship Co. v. Selectmen of Provincetown, 295 Mass. 65 , 69; Fitzgerald v. Selectmen of Braintree, 296 Mass. 362 . Compare Police Commissioner of Boston v. Boston, 279 Mass. 577 , 585-586. And the petition is properly brought against the respondents, since by statute the duty of conducting a municipal election in the city of Cambridge is committed to the board of election commissioners. St. 1921, c. 239, as finally amended by St. 1939, c. 432. G. L. (Ter. Ed.) c. 50, Section 1; c. 54, Section 11 (as amended by St. 1938, c. 341, Section 6), Sections 31, 40, 48, 53, 65 as amended. See Fitzgerald v. Selectmen of Braintree, 296 Mass. 362 .

The case comes before us upon a report of the trial judge at the request of the parties without decision by him. The report is irregular. Such a judge, unlike a justice of this court (see G. L. [Ter. Ed.] c. 211, Section 6; Liggett Drug Co. Inc. v. License Commissioners of North Adams, 296 Mass. 41, 44), has power to report a case at law without decision only "after verdict, or after a finding of the facts by the court," or "where there is agreement as to all the material facts." G. L. (Ter. Ed.) c. 231, Section 111; St. 1939, c. 257. Scaccia v. Boston Elevated Railway, 308 Mass. 310 . The report in the present case purports to be made "upon the pleadings." Obviously there has been no "verdict," and there has been no "finding of the facts by the court," though, since all the allegations of fact in the petition are admitted by the answer and there are no allegations of fact in the answer, a finding of facts by the court would have been largely, if not wholly, perfunctory. Compare Attorney General v. Loomis, 225 Mass. 372 , 373. And there is not in form an "agreement as to all the material facts," although there is in substance an agreement upon the facts alleged in the petition. The "agreement as to all the material facts" that can be the basis of a report without decision, however, is an agreement constituting a case stated. Frati v. Jannini, 226 Mass. 430 , 431. And in view of the principles particularly applicable to a case stated (see Bartlett v. Tufts, 241 Mass. 96 , 99; G. L. [Ter. Ed.] c. 231, Section 126; United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105 , 108-109; compare Everett v. Canton, 303 Mass. 166 , 167) -- however unimportant in the present case -- a report "upon the pleadings," even in the circumstances of this case, cannot be treated as a report upon an "agreement as to all the material facts" in accordance with the principle that the "character of a pleading or other paper put upon the files of the court must be determined from its essential substance and not from the title, name or description attached to it." E. S. Parks Shellac Co. v. Jones, 265 Mass. 108 , 110. Boston v. Santosuosso, 302 Mass. 169 , 175. Nor, in accordance with this principle, can the report be treated as made "after a finding of the facts by the court." The report, therefore, must be discharged and the case stand for further hearing in the Superior Court. Atlantic Maritime Co. v. Gloucester, 228 Mass. 519 , 523, 528. However -- as was done in the case last cited -- since the case has been fully argued on the merits and the public interest requires a speedy disposition thereof, and since as matter of law upon the facts appearing in the record but one conclusion can be reached -- without intending to establish any general rule of practice -- we deem it "appropriate that a statement . . . [of this conclusion] be made now for the guidance of the Superior Court upon its further hearing." Page 524. The present case in this aspect is materially different from John Gilbert Jr. Co. v. C. M. Fauci Co., ante, 271, where a judge of the Superior Court attempted to report an interlocutory ruling made by another judge of that court in an equity case. See G. L. (Ter. Ed.) c. 214, Section 30. Compare c. 214, Section 31; c. 231, Section 112.

The present form of government of the city of Cambridge is in accordance with Plan B as described in G. L. (Ter. Ed.) c. 43, Sections 56-63, inclusive, as amended. See Cunningham v. Mayor of Cambridge, 222 Mass. 574; Mayor of Cambridge v. Cambridge, 228 Mass. 249; Ellis v. Civil Service Commission, 229 Mass. 147; Shannon v. Mayor of Cambridge, 231 Mass. 322; School Committee of Cambridge v. Mayor & City Council of Cambridge, 233 Mass. 6; McLaughlin v. Mayor of Cambridge, 253 Mass. 193; Duggan v. Third District Court of Eastern Middlesex, 298 Mass. 274 .

These facts appear from the record: On "the fifth day of November, A.D 1940, there was conducted in the city of Cambridge a referendum upon the question of a proposed change of city charter from the present Plan B form of government to the Plan E form of government as promulgated under the provisions of G. L. (Ter. Ed.) c. 43, Sections 93 to 116 and G. L. (Ter. Ed.) c. 54A." As "a result of said referendum 25,873 votes were cast in favor of the proposed change and 18,310 votes were cast against said proposal and 7,505 exercised no choice." As "a result of said vote the respondents, acting in their capacity as the election commissioners of the ...