Thacher v. Cook

• Decision Date: 22 October 1924
• Citation: 145 N.E. 256,250 Mass. 188
• Parties: THACHER v. COOK, Secretary of Commonwealth.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 188

145 N.E. 256

THACHER

v.COOK, Secretary of Commonwealth.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 22, 1924.

Report from Supreme Judicial Court, Middlesex County.

Petition by Frank G. Thacher for writ of mandamus to be directed against Frederic W. Cook, as Secretary of Commonwealth, to compel him to place name of petitioner on ballot as candidate of Republican party for election to office of County Commissioner for County of Barnstable. On report. Petition dismissed.H. F. R. Dolan and J. H. Morson, both of Boston, for petitioner.

A. Lincoln, Asst. Atty. Gen., for respondent.

RUGG, C. J.

This is a petition for a writ of mandamus to compel the secretary of the commonwealth to place upon the official ballot, to be used in the county of Barnstable at the state election on the 4th of November next, the name of the petitioner as a candidate of the Republican party for the office of county commissioner, and to desist from placing upon that ballot the name of Benjamin F. Bourne as such candidate. The essential facts are that the petitioner is a resident of the town of Barnstable in the county of Barnstable. At the primaries held on the 9th day of September last, the name of the petitioner appeared upon the official ballot as a candidate for the Republican nomination for the office of county commissioner of the county of Barnstable, as did also the names of John D. W. Bodfish of said Barnstable, Benjamin F. Bourne of Bourne and Arthur Underwood of Falmouth, all within said county. As a result of the primary as certified to the secretary of the commonwealth Bodfish received 1,945 votes, the petitioner 1,887 votes, Bourne 1,769 votes, and Underwood 1,127 votes. Thereupon the respondent determined to place upon the official ballot for the state election in Barnstable county as candidate of the Republican party for the two vacancies in office of county commissioners the names of Bodfish and Bourne and to omit from the official ballot the name of the petitioner.

The pertinent provisions of the statutes are that two persons are this year to be elected county commissioners for the county of Barnstable. G. L. c. 54, § 158. The same section provides that ‘not more than one of the county commissioners * * * shall be chosen from the same city or town.’ By G. L. c. 50, §§ 1, 2, in elections of county officers, ‘the person receiving the highest number of votes for an office shall be deemed and declared to be elected to such office; and if two or more are to be elected to the same office, the several persons, to the number to be chosen to such office, receiving the highest number of votes, shall be deemed and declared to be elected. * * *’ That statute governs primaries, G. L. c. 53, § 24. These words are found in G. L. c. 53, § 1:

‘At any primary, caucus or convention held...