Ross v. Crane
| Decision Date | 06 May 1935 |
| Citation | 291 Mass. 28,195 N.E. 884 |
| Parties | ROSS v. CRANE (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report from Supreme Judicial Court, Norfolk County.
Petitions for mandamus by Charles A. Ross against Emery L Crane, City Clerk of Quincy. On report by the single justice without decision.
Petitions dismissed.
W. P. Murray and W. P. Kelley, both of Davis, for petitioner.
H. S. Davis, of Boston, for respondent.
These are petitions for mandamus against the city clerk of Quincy; in the first the petitioner seeks to restrain the respondent from striking his name from the roll of registered voters of Quincy, and, in the second, to compel the respondent to receive and file nomination papers appropriate to place the name of the petitioner upon the ballot as a candidate for mayor at an election to be held in Quincy, on May 21, 1935. At the hearing parties agreed upon the material facts as disclosed by pleadings and the case was reported by the single justice without decision. The question thus presented is whether on those facts the writs ought to issue as matter of law. School Committee of City of Lowell v. Mayor of Lowell, 265 Mass. 353, 354, 164 N.E. 91; Cochran v. Roemer (Mass.) 192 N.E. 58; Clancy v. Wallace (Mass.) 193 N.E. 546.
The relevant facts are these: The petitioner, prior to the events here in issue, was a registered voter in Quincy. He was elected mayor of Quincy at an election held on December 4, 1934. Thereafter, in conformity to G. L. (Ter. Ed.) c. 55, § 37, an election petition was instituted against the petitioner and hearing was had before three judges of the superior court. During that hearing the petitioner, who was voluntarily present and upon whom no process to compel his testimony had been served, was called as a witness by counsel for the petitioners and took the witness stand without objection and testified at length concerning the matters then in issue. He did not suggest that his testimony might incriminate him or subject him to any penalty or forfeiture, and did not ask to be excused from testifying on any ground. As a result of that hearing, findings were made that the petitioner committed corrupt practices in that (1) in order to promote his election as mayor he expended a sum of money in excess of the amount permitted by law (G. L. [Ter. Ed.] c. 55, § 1) and (2) he made a false return in the statement made and filed by him pursuant to G. L. (Ter. Ed.) c. 55, §§ 16 and 19, and that the defenses allowed by G. L. (Ter. Ed.) c. 55, § 37 (e), (1), (2), (3) and (4) were not established. A final decree in the election petition was entered on March 21, 1935, declaring the election of December 4, 1934 void, ousting the petitioner from the office of mayor and declaring that office vacant. G. L. (Ter. Ed.) c. 55, § 37(g). A copy of this decree was sent to the respondent by the state secretary and the petitioner was then notified that the respondent in the performance of what he believed to be his official duty, unless restrained by legal proceedings, would strike the name of the petitioner from the roll of registered voters of Quincy on April 16, 1935. G. L. (Ter. Ed.) c. 56, § 55. The petitioner has seasonably presented to the respondent for filing nomination papers appropriate to place his name upon the ballot for election as mayor at the election to be held on May 21, 1935. The respondent has refused to receive such papers on the grounds that the petitioner (1) is not qualified to vote for a candidate for that office and (2) is ineligible for that office because of the final decree entered on March 21, 1935, in the election petition and the findings on which it was based.
It is not now contended that the petitioner was not ousted from the office of mayor and that that office was not declared vacant in conformity to the provisions of G. L. (Ter. Ed.) c. 55, § 37(g). Other pertinent provisions of section 37 are as follows: In G. L. (Ter. Ed.) c. 56, § 54 are these words: ‘ Whoever is found by final judgment upon an election petition, as provided in section thirty-seven of chapter fifty-five, to have committed a corrupt practice, and, in accordance with such finding, forfeits the office to which he has been elected * * * shall be disqualified as a voter for a period of three years following the date of such judgment * * * and shall be ineligible to hold public office for said period.’ Provision is made by section 55 of said chapter 56 for striking the name of a person found upon an election petition to have committed a corrupt practice from the roll of registered voters for a period of three years.
The petitioner states in his brief that ‘ the single issue in both cases is whether the disqualification created by the foregoing provisions, particularly those contained in paragraphs numbered (g) and (j) [of said section 37] and said section 54, chapter 56, do not attach to the petitioner because of his having been called to testify upon the trial of said election petition in which he was respondent, and having testified as a witness therein.’ This is based on the provision of paragraph (h) of said section 37 giving certain immunity to a witness ‘ called to testify upon an election petition.’ The constitutional guaranty in art. 12 of the Declaration of Rights, to the effect that ‘ No subject shall * * * be compelled to accuse, or furnish evidence against himself,’ is invoked. That provision is one of the fundamental rights of a citizen. That provision, however, does not prevent the examination of a witness ‘ where his answers will not expose him to criminal prosecution, or tend to subject him to a penalty or forfeiture, although they may otherwise adversely affect his pecuniary interest.’ Bull v. Loveland, 10 Pick. 9, 14. That provision does not deprive the General Court of power to compel the giving of testimony which might incriminate the witness provided immunity be accorded to him commensurate with the constitutional protection. Brown v Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; Glickstein v. United States, 222 U.S. 139, 141, 32 S.Ct. 71, 56 L.Ed. 128; Emery's Case, 107 Mass. 172, 185,9 Am.Rep. 22; Attorney General v. Brissenden, 271 Mass. 172, 171 N.E. 82. The petitioner does not fall within the terms of paragraph (h) for the reason that he was not ‘ called to testify upon an election petition’ within the meaning of those words as there used. The constitutional guaranty which he invokes is a protection against being compelled to testify. It is a personal privilege. It...
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