Scannell v. State Ballot Law Comm'n

• Decision Date: 30 June 1949
• Citation: 324 Mass. 494,87 N.E.2d 16
• Parties: SCANNELL v. STATE BALLOT LAW COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 494

87 N.E.2d 16

SCANNELL

v.STATE BALLOT LAW COMMISSION.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1949.

Report from Supreme Judicial Court, Suffolk County; H. P. Williams, Judge.

Petition by David D. Scannell, Jr., for a writ of certiorari to quash a decision of the State Ballot Law Commission that a petition, seeking to have submitted to voters of Boston the question whether Plan A form of government as described in St.1948, c. 452 should be adopted, was valid and sufficient petition. Case reserved and reported by the single justice upon the petition and return as amended, without decision, for determination of the Supreme Judicial Court.

Petition dismissed.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

John J. Delaney, Jr., Arlington, for petitioner.

F. E. Kelly, Atty. Gen., H. W. Radovsky, Asst. Atty. Gen., and J. Bresnahan, Asst. Atty. Gen., for respondent.

RONAN, Justice.

This is a petition for a writ of certiorari to quash a decision of the respondent commission that a certain petition, seeking to have submitted to the voters of Boston at the next municipal election the question whether the Plan A form of government as described in St.1948, c. 452, should be adopted, was a valid and sufficient petition. The case was reserved and reported by the single justice upon the petition and the return as amended, without decision, for the determination of the full court.

The voters of Boston were afforded an opportunity by St.1948, c. 452, to decide whether they desired to change their existing charter and to substitute therefor one of the new forms of municipal government set forth in the statute as Plan A, Plan D and Plan E. The procedure for submitting the question to the voters is outlined in § 3 of this statute. A separate typewritten sheet in the statutory form, stating the question whether the city shall adopt one particular plan, designating the plan by name, and signed by not less than ten nor more than fifteen qualified voters of the city, shall, not earlier than the first Wednesday of February next preceding the regular municipal election at which the question is to be submitted to the voters, be presented to the board of election commissioners, hereinafter called the board. Upon certification of a sheet by the board, the board is required within ten days after the filing of the sheet to furnish blanks for subsequent signers. These blanks, when signed by at least ten per cent of the voters at the State election next preceding, are to be offered as one petition and, together with the typewritten sheet, may be filed with the board not later than the first Wednesday in July next preceding the regular municipal election at which the proposed question is to be submitted to the voters. The board shall examine the petition, certify the number of signatures which are the names of qualified voters up to twelve per cent of the registered voters at the last State election, and attach to the petition the results of such examination not later than thirty days after the filing of the petition.

Section 4 of said statute provides for an appeal to the State ballot law commission, hereinafter called the commission, by any registered voter if any question arises as to the validity or sufficiency of the petition. The commission shall render a decision, within thirty days after the petition has been submitted to it, which shall state its finding as to the validity and sufficiency of the petition. The decision of the commission shall be final. If the board shall have certified that the petition contains at least the required number of signatures and if, upon an appeal, the commission shall decide that the petition is valid and sufficient, the question shall be printed upon the ballots used at the next regular municipal election. The plan shall be adopted if a majority of the voters voting on said question vote in the affirmative.

The present controversy turns entirely upon the action of the board when four typewritten sheets were presented to it shortly after the opening of the office of the board on the morning of February 2, 1949, and the action of the board in issuing blanks for subsequent signers. It appears from the return filed by the commission that there was evidence that the chairman of the board arrived at his office at 7 o'clock in the morning of February 2, 1949, in response to a telephone call from the custodian of the city hall; that he found there one Mrs. McDonald, who informed him that she desired to file Plan A papers; that one Collins arrived at 7:15 a. m. to file papers for the Boston Committee for Plan E; that one Kaplan arrived at 7:30 a. m. to file papers for Plan D; and that one Ahearn arrived at 8:55 a. m. to file papers ‘for Plan E for Boston.’ The chairman gave a slip to each of these four persons bearing ‘a time stamp of their arrival’ and opened the office at 9 o'clock, and the four persons took their position in line in the order in which they arrived. The typewritten sheets for Plan A, for Boston Committee for Plan E, for Plan D, and for Plan E for Boston were filed at 9:01, 9:04, 9:05 and 9:08 a. m. respectively. The four typewritten sheets were certified by the board in the order in which they were filed. All were certified before noontime on the following date and were referred to the city printing department for the printing of the necessary blanks in the order in which the said sheets had been filed. Printing of blanks for Plan A began on the afternoon of February 2, 1949, and at 5 o'clock in the afternoon two thousand printed blanks for Plan A were delivered to the board, and all of the remaining Plan A blanks were printed and delivered on February 3, 1949. Two thirds of the total blanks for the Boston committee for Plan E were printed and delivered on February 3, 1949, and the remainder on February 4, 1949. Printing of the blanks for Plan D began on February 4, 1949, and some of these blanks were delivered to the board on February 4, 1949, and the balance on February 5, 1949. The city printing plant did not operate on Saturday, February 5, 1949, nor on Sunday, February 6, 1949. The printing of blanks for Plan E for Boston commenced on Monday, February 7, 1949, and was completed the next day when the blanks were transmitted to the board. The city plant had seven presses, each capable of printing one thousand blanks an hour, but not all of these presses could be used for printing the blanks as it was necessary to use some of them to turn out other work which had to be completed within a certain required time.

The petition for Plan A was filed with the board on February 14, 1949. The boare on March 15, 1949, certified that the petition contained forty-seven thousand four hundred seventy-seven signatures as the names of qualified voters of Boston, although only forty-one thousand sixty-eight signatures were required. The petitioner appealed to the commission. The petitioner admitted that the petition contained the necessary number of signatures. The commission found that all four typewritten sheets were certified by the board within forty-eight hours of their filing; that the necessary blanks were furnished within ten days of the filing of the typewritten sheets; and that the board complied ‘with all the provisions contained in § 3 of said c. 452, exercising good faith in all of its proceedings.’ It also found that the petition was valid and sufficient.

The principal contention of the petitioner is that the board was not authorized to issue blanks to the Plan A group six days prior to the issuance of blanks to the Plan E for Boston group and so to give to the former an advantage over the latter in their contest to secure signatures upon their respective blanks. Doubtless, the time available for procuring the necessary signatures was important, for the proposed plan mentioned in the petition which was first filed and found to be sufficient and valid was the only plan which could be submitted to the voters at the next municipal election. The only question now presented is whether the board committed an error of law in furnishing the blanks to the representatives of Plan E for Boston six days after it began to furnish them for signers for Plan A.

Although the statute provides, § 4, that ‘The decision of the state ballot law commission shall be final,’ this does not prevent a party, without remedy by appeal, exception or other mode of correcting errors of law, from resorting to a petition for a writ of certiorari in order to bring the record of the judicial or quasi judicial tribunal showing the principles of its decision before a superior court for an examination as to substantial and material errors of law apparent on the record which, if allowed to stand, will result in manifest injustice to the petitioner. Hough v. Contributory Retirement Appeal Board, 309 Mass. 534, 535, 36 N.E.2d 415;Commissioner of Corporations and Taxation v. Chilton Club, 318 Mass. 285, 287, 61 N.E.2d 335;Opinion of the Justices, 321 Mass. 759, 765, 73 N.E.2d 881.

The general and broad power of the Legislature to regulate the manner in which the voters of a city may proceed to secure the expression of the popular will upon the adoption of a new city charter has been recently discussed at great length with an ample citation of authorities in Moore v. Election of Commissioners of Cambridge, 309 Mass. 303, 35 N.E.2d 222. A somewhat different method is provided for by St.1948, c. 452. If after taking the necessary preliminary steps a petition is filed and certified by the board to contain the requisite number of signatures, or if the commission upon an appeal from the board determines the petition to be valid and sufficient, then the question contained in that petition is the only one that may be submitted to the voters at the next municipal election. §§ 3, 4, 5. We need not...