Scott v. Board of Election Com'rs of Newton

• Decision Date: 18 October 1963
• Citation: 346 Mass. 388,193 N.E.2d 262
• Parties: Wellington F. SCOTT et al. v. BOARD OF ELECTION COMMISSIONERS domestic use is being fluoridated by such Harold M. BAND et al. v. BOARD OF ELECTION COMMISSIONERS OF NEWTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 262

193 N.E.2d 262

346 Mass. 388

Wellington F. SCOTT et al. v. BOARD OF ELECTION COMMISSIONERS domestic use is being

fluoridated by such

Harold M. BAND et al. v. BOARD OF ELECTION COMMISSIONERS OF NEWTON.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 14, 1963.

Decided Oct. 18, 1963.

Frederick G. Fisher, Jr., Boston (S. Donald Gonson, Buffalo, with him), for petitioners.

Matt B. Jones, Boston, for respondent.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

WILKINS, Chief Justice.

These two cases are directed against the ascertainment of the will of the voters of the city of Newton as to the discontinuance of fluoridation of the public water supply for domestic use. The first case is a petition for a writ of mandamus by five citizens and residents of the city to command the respondent board of election commissioners to refrain from placing upon the ballot at a municipal election to be held on November 5, 1963, the question prescribed by G.L. c. 40, § 41C, inserted by St.1962, c. 485, § 1. ¹ The second case is a petition by not less than ten taxable inhabitants of the city to restrain the respondent board from incurring any obligations or expending any moneys for checking or certifying the signatures on a petition of registered voters seeking to have the question placed upon the official ballot, from printing the question on the ballot, from giving notice of the question to the voters, and from paying for the counting of the votes. G.L. (Ter.Ed.) c. 40, § 53.

The cases were heard upon similar statements of agreed facts meeting the requirements of a case stated. The judge decided in favor of the respondent board. In the first case the judge entered an 'order for final judgment,' which provided 'that final judgment be entered for the respondents dismissing the petition without costs and with prejudice.' The petitioners appealed. In the second case a 'final decree' was entered in which the judge stated, 'I find and declare that the respondents, as members of the Board of Election Commissioners of the City of Newton, have acted in accordance with G.L. c. 40, § 41C, in preparing to place upon the ballot at the next municipal election the question set out in said section.' The petitioners filed a claim of appeal 'from the final decree dismissing the petition.'

In November, 1961, at a municipal election a majority of the voters of Newton voted in the affirmative on the question, 'Shall the public water supply for domestic use in this city be fluoridated?' Thereafter the board of aldermen appropriated about $180,000, and installation of equipment commenced in February, 1963. Because of unavoidable delays the installation did not become complete and none of the public water supply actually contained fluorine until September 12, 1963, on which date the water from one of the three pumping stations of the city contained fluorine. The water commissioner stated that the water supply for the entire city would contain fluorine by October 1. The respondent board determined that September 10 should be the last day for filing petitions to place upon the official ballot to be used at the election on November 5 the question, 'Shall the fluoridation of the public water supply for domestic use in this city be discontinued?' Between August 30 and September 10 petitions purporting to be signed by approximately 5,000 voters were filed with the respondent board, which by September 10 had certified as correct approximately 2,800, which is more than five per cent of the registered voters plus one...