Munn v. Dabrowski

• Decision Date: 28 November 1956
• Citation: 335 Mass. 41,138 N.E.2d 570
• Parties: John T. MUNN v. Fred DABROWSKI et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 570

138 N.E.2d 570

335 Mass. 41

John T. MUNN v. Fred DABROWSKI et al.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Sept. 18, 1956.

Decided Nov. 28, 1956.

Edmund R. St. John, Jr., Adams, for petitioner.

John N. Alberti, North Adams, Andrea F. Nuciforo, Pittsfield, for respondent Dabrowski.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN, and WHITTEMORE, JJ.

COUNIHAN, Justice.

This action comes here as the result of a dispute arising out of an election in the town of Adams on March 7, 1955, in which the petitioner Munn and the respondent Dabrowski were candidates for the office of selectman. There were four other candidates. The original count of ballots by the election officers gave Munn 1,656 votes and Dabrowski 1,654. The votes for other candidates were scattered. Following a recount pursuant to G.L. (Ter.Ed.) c. 54, § 135, as appearing in St.1943, c. 417, as amended, the registrars of voters declared that Dabrowski had received 1,652 votes and Munn 1,650 votes.

Thereupon Munn brought this petition for a writ of mandamus against Dabrowski, the town clerk, and the registrars of voters, seeking to have Munn declared the duly elected selectman. The petition was originally brought in the Supreme Judicial Court and by order was transferred to the Superior Court where it was tried before a judge of that court. In his answer Dabrowski, after denying allegations of the petition, by way of further answer asked the court to review the findings and rulings of the registrars of voters on certain ballots which he had protested at the recount.

After hearing the judge filed a memorandum of 'Findings, Rulings and Order for Judgment' in which he properly made rulings as matter of law on all of the disputed ballots. Kane v. Registrars of Voters of Fall River, 328 Mass. 511, 516-518, 105 N.E.2d 212. He ordered that judgment be entered directing writ of mandamus to issue commanding the registrars of voters to amend the records of the recount to show that Munn received 1,654 votes and Dabrowski 1,653 votes and that Munn be declared duly elected as a selectman. Both Munn and Dabrowski claimed exceptions to the ruling of the judge. The parties having been unable to agree upon a consolidated bill of exceptions, the action comes here upon two bills of exceptions, one filed by each of the principal parties.

The only evidence before us is the certificate of the town clerk and the registrars as to the result of the recount and forty-four protested ballots which were introduced as exhibits and are numbered 1 to 44, inclusive. These ballots will be hereinafter referred to by their respective numbers as exhibits. Of these ballots the judge ruled that thirty-four should have been counted for Munn, five for Dabrowski, and five as blanks. No exception was taken to the ruling of the judge that ballot numbered 24 was a blank, so this ballot is not before us. Munn has waived his exceptions to the rulings of the judge on ballots numbered 8 and 19 and Dabrowski has waived his exceptions to the rulings of the judge on ballots numbered 12 and 20. We need consider therefore only the remaining thirty-nine ballots which are the subject of the exceptions.

At the outset of our discussion of these exceptions we deem it appropriate to repeat what was recently said in Kane v. Registrars of Voters of Fall River, 328 Mass. 511, at pages 517-518, 105 N.E.2d at page 216: '* * * we are of opinion that only errors of law may be revised in cases of the sort here involved * * *. The question for the judge to decide was whether there was error of law in the manner in which the ballots were counted by the board. That question was to be determined from what appeared on the face of the ballots inasmuch as the only evidence before him consisted of the ballots. * * * Before discussing them [the exceptions] in more detail a statement of the general principles applicable to cases of this sort is appropriate. In the construction of the election laws the principle running through our decisions is that the will of the voters, if it can be determined with reasonable certainty, must be given effect. If the ballot, considered in the light of the character and location of the mark and conditions attendant upon the election, fairly indicates the voter's intent, the vote should be counted in accordance with that intent, provided the voter has substantially complied with the requisites of the election law. The voter is not to be disfranchised because of minor irregularities.' See cases cited.

Dabrowski challenged twenty-eight ballots, being numbered 1, 2, 3, 4, 5, 6, 9, 10, 11, 13, 14, 15, 16, 18, 21, 22, 27, 28, 29, 32, 35, 36, 37, 38, 39, 40, 41, and 42, because in each instance a cross had been made against the name of another candidate for selectman and then erased or obliterated and another cross appeared against the name of Munn. In twenty-two such instances the cross which was erased or obliterated appears to have been made against the name of one Mann, another candidate for selectman, which immediately preceded the name of Munn on the ballot. In three other instances the erased or obliterated cross appears to have been made against the name of one Williams, another candidate, which immediately followed the name of Munn on the ballot. In three other cases a cross had apparently been made against the name of other candidates and then erased or obliterated. The judge ruled that all of these ballots be counted for Munn. There was no error because we think that the intent of the voter was plainly expressed. Dabrowski, however, urges us to overrule Kane v. Registrars of Voters of Fall River, 328 Mass. 511, at pages 519-520, 105 N.E.2d at page 217, where it was said, 'On some ballots, there were crosses n the square opposite the name of one candidate and erasures or pencilled obliterations of marks in other squares. It could not be said that these ballots failed to indicate the intent of the voter with requisite clainty. See Coughlin v. Election Commission of [City of] Lowell, 294 Mass. 434, 437, 2 N.E.2d 461.' Counsel for Dabrowski would have us adopt a rule that where many ballots show signs of erasure or obliteration the court should conclude and rule that fraud has been perpetrated. We decline to adopt such a rule. We are unwilling to substitute for the presumption of regularity a presumption of fraud. Counsel in his brief concedes that a presumption exists that public officials are honest and discharge their duties with good faith and integrity. See Kelley v. School Committee of Watertown, 330 Mass. 150, 111 N.E.2d 749. There was no evidence before the judge except the ballots. In the absence of evidence to the contrary we must conclude that all markings on a ballot were made by the voter.

Ballot numbered 7 shows a cross opposite the name of Walter J. Donovan, the only candidate for moderator. In the box opposite the blank space for a write-in candidate there appears a small circle. In the box opposite the name of Dabrowski there is a cross, and a small circle appears opposite the name of Clermont, another candidate for selectman, whose name appears on the ballot just below the name of Dabrowski. Similar circles appear in the boxes opposite the names of candidates for other offices and in the box opposite the space for a write-in candidate where the voter had made a cross against the name of an unopposed candidate for that office. The judge ruled that this ballot was a blank. We are of opinion that this was error. Whatever may be thought of the voter's intelligence, we do not believe that the intent of the voter was left to conjecture or surmise. He made a clear unmistakable cross against the name of Dabrowski. The circle apparently was a zero by which he expressed his intention not to...