Moore v. Election Comm'rs of Cambridge

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

309 Mass. 303
35 N.E.2d 222

MOORE
v.
ELECTION COMMISSIONERS OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

June 23, 1941.

Report from Superior Court, Middlesex County; F. Forte, Judge.

Mandamus proceeding by Andrew L. Moore against the Election Commissioners of Cambridge, to compel defendants to conduct municipal election in Cambridge in 1941 in accordance with particular statutory provisions. On report of the trial judge at request of the parties without decision by him.

Report discharged; case to stand for further hearing in Superior Court in accordance with opinion.

[35 N.E.2d 226]

Argued before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.

J. A. DeGuglielmo and A. L. Moore, both of Cambridge, for petitioner.

G. A. McLaughlin, R. H. Davison, L. Wheeler, Jr., and J. F. Farr, all of Boston, and J. M. Capron, of Cambridge, for respondents.

FIELD, Chief Justice.

This is a petition for a writ of mandamus brought in the Superior Court. G.L. (Ter.Ed.) c. 213, § 1A (see St.1941, c. 180), c. 249, § 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, 24 N.E.2d 151. 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 §§ 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, §§ 93-116, added to said chapter by St.1938, c. 378, § 15, and referring therein to G.L.(Ter.Ed.) c. 54A, inserted in the General Laws by St.1938, c. 341, 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, 80 N.E. 821,11 Ann.Cas. 417;Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 94, 95, 153 N.E. 322, and cases cited; Cape Cod Steamship Co. v. Selectmen of Provincetown, 295 Mass. 65, 69, 3 N.E.2d 244;Fitzgerald v. Selectmen of Braintree, 296 Mass. 362, 5 N.E.2d 838. Compare Police Commissioner of Boston v. Boston, 279 Mass. 577, 585-586, 181 N.E. 790. 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, § 1; c. 54, § 11 (as amended by St.1938, c. 341, § 6), §§ 31, 40, 48, 53, 65 as amended. See Fitzgerald v. Selectmen of Braintree, 296 Mass. 362, 5 N.E.2d 838.

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, § 6; Liggett Drug Co., Inc. v. License Commissioners of North Adams, 296 Mass. 41, 44, 4 N.E.2d 628), 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, § 111; St.1939, c. 257, § 1. Scaccia v. Boston Elevated Railway, 308 Mass. 310, 32 N.E.2d 253. 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

[35 N.E.2d 227]

Attorney General v. Loomis, 225 Mass. 372, 373, 114 N.E. 676. 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, 115 N.E. 746. And in view of the principles particularly applicable to a case stated (see Bartlett v. Tufts, 241 Mass. 96, 99, 134 N.E. 630;G.L. (Ter.Ed.) c. 231, § 126; United States Fidelity & Guaranty Co. v. English Construction Co., 303 Mass. 105, 108, 109, 20 N.E.2d 939; compare Everett v. Canton, 303 Mass. 166, 167, 21 N.E.2d 269), 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, 163 N.E. 883, 884;Boston v. Santosuosso, 302 Mass. 169, 175, 18 N.E.2d 1009. 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, 117 N.E. 924. 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 of 228 Mass.,page 926 of 117 N.E. The present case in this aspect is materially different from John Gilbert Jr. Co. v. C. M. Fauci Co. 309 Mass. 271, 34 N.E.2d 685, 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, § 30. Compre c. 214, § 31; c. 231, § 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, §§ 56-63, inclusive, as amended. See Cunningham v. Mayor of Cambridge, 222 Mass. 574, 111 N.E. 409, Ann.Cas.1917C, 1100; Mayor of Cambridge v. Cambridge, 228 Mass. 249, 117 N.E. 312;Ellis v. Civil Service Commission, 229 Mass. 147, 118 N.E. 231;Shannon v. Mayor of Cambridge, 231 Mass. 322, 121 N.E. 31;School Committee of Cambridge v. Mayor & City Council of Cambridge, 233 Mass. 6, 122 N.E. 873;McLaughlin v. Mayor of Cambridge, 253 Mass. 193, 148 N.E. 458;Duggan v. Third District Court of Eastern Middlesex, 298 Mass. 274, 10 N.E.2d 61.

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, §§ 93 to 116 and G.L.(Ter.Ed.), c. 54A.’ As ‘a result of said referendum 23,873 votes were cast in favor of the proposed change and 18,310 votes were cast against said proposal and 7505 exercised no choice.’ As ‘a result of said vote the respondents, acting in their capacity as the Election Commissioners of the city of Cambridge, propose to conduct an election in November of 1941 in accordance with the provisions of the Plan E form of charter as contained in G.L.(Ter.Ed.), c. 43, together with the attendant proportional representation method of voting, as contained in G.L.(Ter.Ed.), c. 54A.’ There is no contention that the Plan E form of charter was not adopted in accordance with the applicable statutory provisions, or that, if such adoption is not ineffective for the reasons urged by the petitioner, an election in accordance therewith should not be held in November, 1941. See G.L.(Ter.Ed.) c. 43, §§ 2-15, 45; St.1938, c. 378, §§ 2-5; G.L.(Ter.Ed.) c. 54A, § 2, as appearing in St.1938, c. 341, § 1, and as amended by St.1938, c. 378, § 17.

The Plan E form of government is particularly described in G.L.(Ter.Ed.) c. 43, §§ 93-116, added to G.L.(Ter.Ed.) c. 43 by St.1938, c. 378, § 15. See also §§ 31, 36, as amended by said c. 378, §§ 12, 13. Said section 31 provides that the ‘school committee shall consist of the mayor, who

[35 N.E.2d 228]

shall be the chairman, and six members elected at large. * * * After the adoption of Plan E by a city, the six members other than the mayor shall be elected at large for terms of two years each by proportional representation as hereinafter provided.’ Section 96 provides that in a city having more than seven wards at the time of the adoption of the plan the city council shall consist of nine members. Cambridge then had more than seven wards. See St.1939, c. 507. This section provides also that all of the members of the council ‘shall, at each regular municipal election, be elected at large for terms of two years each by proportional representation as hereinafter provided.’ Section 115 provides that, ‘except as otherwise provided in sections ninety-three to one hundred and sixteen, inclusive, of this chapter, the provisions of sections nine to sixteen, inclusive, of chapter fifty-four A relative to proportional representation shall apply with respect to municipal elections in any city adopting this plan.’ Section 115 (see...