290 Mass. 476 | Mass. | 1935
This is a petition for a writ of mandamus to compel the registrars of voters of Sudbury, hereafter called
The petition was heard by a single justice, who inspected the disputed ballot. Official ballots as defined in G. L. (Ter. Ed.) c. 50, § 1, were used at the election. The ballots were arranged in the form usual in this Commonwealth; the names of candidates were grouped under the titles of the several offices with a small square to the right of each name for the making of a cross to indicate the candidate voted for. One part of the ballot was in this form: “Selectmen, for three years, vote for one.” The names of three candidates were arranged in alphabetical order and the voter marked a cross in the square opposite the name of the petitioner. He also marked in the usual way the ballot indicating his choice of candidates for ten other offices. There was on the ballot the name of but one candidate for town clerk. No mark was made in the square opposite that name, but in the space below the name of the candidate, left blank to permit the writing of the name of a different candidate, the voter wrote: “Anyone else will do,” and made a cross in the square opposite that writing. The name of one candidate for assessor was printed on the ballot and in the blank space below that name the voter wrote “Mr. Punk” and placed a mark in the square opposite that writing. The names of three candidates for constable were printed with the instruction “Vote for three.” The voter marked in the proper square his preference for the first two candidates, but opposite the name of the third candidate he wrote “Nix” and made no mark whatever in the square opposite that name.
The findings of fact must be accepted as true since the evidence is not reported.
The pertinent provisions of statutes are these: G. L. (Ter. Ed.) c. 54, § 80: “Except as authorized by this chapter, no voter, election officer or other person shall place on a ballot any mark by which it may be identified; nor shall any person place a mark against any name upon a ballot not cast by himself”; § 106: “If the use of a state ballot box is required, no ballot shall be counted unless it has been deposited in and cancelled by such ballot box, or has been otherwise deposited in accordance with section sixty-six. Only official ballots shall be counted in any election for which they are provided. If a voter marks more names than there are persons to be elected to an office, or if his choice cannot be determined, his ballot shall not be counted for such office. Ballots cast but not counted shall be marked ‘defective’ on the outside thereof, and shall be preserved like other ballots”; c. 56, § 31: “Whoever, at a primary, caucus or election, places any distinguishing mark upon his ballot, or makes a false statement as to his ability to mark his ballot, or allows the marking of his ballot to be seen by any person for any purpose not authorized by law, or gives a false answer to or makes a false oath before a presiding officer, shall be punished by imprisonment for not more than six months or by a fine of, not more than one hundred dollars.”
The only statutory provision forbidding the counting of a ballot actually deposited by the voter in the ballot box
The precise point remaining for decision is whether as matter of law the marks upon this ballot in the light of the
Whether irregular markings on a ballot import a dishonest purpose commonly is a question of fact to be decided in connection with all the circumstances. Handwriting alone might be sufficiently distinctive in certain conditions, although if the name of a candidate is written in a blank space as expressly permitted by G. L. (Ter. Ed.) c. 54, § 42, it could not be an identifying mark within the meaning of said §§80 and 31. Ray v. Registrars of Voters of Ashland, 221 Mass. 223, 225. The finding of the single justice is that the writings in the case at bar were not made with an intent to identify or to distinguish the ballot of the voter. That finding must be accepted as final and cannot be reviewed or revised by us. Andrews v. Registrars of Voters of Easton, 246 Mass. 572, 576. Bianco v. Ashley, 284 Mass. 20, 26. The words written on the ballot here in question disclose a frivolous, puerile, or eccentric disposition; they manifest a tendency to trifle with one of the most important duties of citizenship. No other ballot, so far as appears, bore any markings or writings similar in kind or in class. However strong the circumstances might seem to a fact finding tribunal, they might be thought to indicate freakishness rather than knavishness on the part of the voter. In our opinion they cannot quite be said, as matter of law, to import a dishonest purpose. There are decisions in other jurisdictions doubtless going somewhat further in condemning ballots irregularly marked. For example, it was said in Stevenson v. Baker, 347 Ill. 304, 318: “Any deliberate marking of a ballot by a voter that
The case at bar is very close to the line. Doubtless, a slight element might have resulted in a different finding of facts. But our conclusion is that the ballot ought to be counted for the petitioner and that certificate of election ought to issue to him. This result seems in harmony with the general trend of our decisions as to the counting of ballots. Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 277-278. Parrott v. Plunkett, 268 Mass. 202, and cases there reviewed.
Writ of mandamus to issue.