318 Mass. 748 | Mass. | 1945
The petitioner appeals from a judgment of the Superior Court dismissing her petition for a writ of mandamus to compel the respondent registrars of voters to count certain ballots in favor of the petitioner at a recount of votes cast at an election for school committee in Milford.
One Mary E. A. Murray, the petitioner’s nearest competitor, who appeared to have been elected upon the original count, was brought in to defend as the real party in interest. G. L. (Ter. Ed.) c. 249, § 5, as last amended by St. 1943, c. 374, § 2. Mary E. A. Murray filed an answer wherein she alleged “by way of plea in abatement” that the written statement filed with the town clerk as a basis for the recount was not “sworn to by one of the subscribers” as required by G. L. (Ter. Ed.) c. 54, § 135, as appearing in St. 1943, c. 417, and that the registrars had no jurisdiction to make any recount. At the hearing the petitioner admitted that which also appears from the face of the papers comprising the “statement” filed with the clerk, which were admitted in evidence, to wit, that none of the subscribers to any paper in any of the precincts made oath to it.
Although the answer seems to have been called by everybody at the hearing a plea in abatement, it did not aim merely at abatement of the present proceeding. If the matter set up in the answer and proved at the hearing was a" valid defence at all it was a complete bar to the cause of action for a writ of mandamus. The court would not in this or in any subsequent proceeding direct the registrars how to conduct a recount which they had no jurisdiction to make. The so called plea in abatement was an answer in bar.
It is well settled that recounts are wholly a matter of statute, and that they are of no validity unless the foundation required by statute is laid. Eldridge v. Selectmen of Chatham, 192 Mass. 409, 411. Swift v. Registrars of Voters of Milton, 281 Mass. 264, 268. Clancy v. Wallace, 288 Mass. 557, 563. Fitzpatrick v. Pope, 307 Mass. 611. See Fritz v. Crean, 182 Mass. 433. The burden was upon the petitioner to allege and to prove that the recount which she seeks to control by judicial action was a genuine and lawful recount which the registrars had power to make. Since she did not allege in any form of words that the recount was held under § 134 or under any provision of law, unless it be § 135, and since it was proved both by the incontrovertible evidence of the statement filed with the town clerk and by admission of the petitioner at the hearing that a condition precedent to a valid recount under § 135, to wit, the swearing of one of the subscribers to the statement, had not been performed, there was nothing for the trial judge to do but to dismiss the petition for mandamus.
If the recount by the registrars was without authority, which so far as appears was the fact, the respondent Murray could not give it validity on any principle of waiver or estoppel, even if, as the petitioner asserts, said Murray attended at the recount and challenged ballots to protect her interests. Fritz v. Crean, 182 Mass. 433, 436. Lack of notice to a party might be held immaterial or to have been waived if the party in fact attended. Clancy v. Wallace, 288 Mass. 557, 564-565. But lack of jurisdiction of the board to act is a different matter. Eaton v. Eaton, 233 Mass. 351, 364. Jones v. Jones, 297 Mass. 198, 202.
When it appeared as matter of law that this petition could in no event be maintained, there was no error in the
Judgment affirmed.
St. 1871, c. 40, § 2. St. 1874, c. 376, § 47. St. 1884, c. 299, § 29. St, 1890, c. 423, § 103. St. 1893, c. 417, § 206. Opinion of the Justices, 117 Mass. 599. For corresponding sections of other earlier statutes in which this provision was omitted see St. 1876, c. 188, § 2; Pub. Sts. c. 7, § 35; Opinion of the Justices, 136 Mass. 583. The provision was restored by St. 1884, c. 299, s 29.