322 Mass. 530 | Mass. | 1948
The question in this case is whether one Wallace, or the petitioner McRobbie, was elected a selectman of Ipswich at an election held on March 10, 1947. That question depends upon the effect of certain ballots sent to the town clerk by mail by voters who were not present at the polls to cast their ballots in person. Wallace was declared elected, and the petitioner McRobbie contests the election.
This proceeding began as a petition for a writ of mandamus. Later the petitioner brought a bill in equity for the same cause, and this by decree of the Superior Court was, without objection, “consolidated with and fused in said proceeding at law.” Lumiansky v. Tessier, 213 Mass. 182, 189. Katauskas v. Lonstein, 266 Mass. 29, 32, 33. In O’Brien v. Election Commissioners of Boston, 257 Mass. 332, and Hall v. Barton, 290 Mass. 476, mandamus was employed to determine an election contest over the validity of ballots, By G. L. (Ter. Ed.) c. 54, § 103, a bill in equity may be employed to enjoin the counting of any. ballot “which was not cast in accordance” with §§ 86 to 102 of said chapter, which relate to voting by absent voters.
Amendment 76 to the Constitution of Massachusetts, adopted in 1944, provides that “The general court shall have power to provide by law for voting, in the choice of
The same person was appointed auditor and master in the case as consolidated, and filed a single report as such, which was confirmed, and the judge found “such findings of fact as appear in the report of the auditor.” The confirmation of the report impliedly overruled all exceptions to
The report of the auditor and master shows the following facts. After the balloting was finished, the ballots were counted, and the original count showed one thousand two hundred eighty-five for McRobbie and one thousand two hundred ninety-two for Wallace. On a recount by the respondent registrars of voters on March 16, 1947, McRobbie and Wallace each lost a vote. There were sixty-six ballots sent in by mail under the absent voting law. Of these, forty-six voted for Wallace and twenty for McRobbie. Thirteen ballots were issued because of the physical disability of the voter. These were given to Wallace, and by him given to the voters. In each of these thirteen eases Wallace acted as notary public in the making of the required affidavit. For that reason, these ballots were invalid, and should not have been counted. But it is not enough to invalidate an election, that illegal votes were received. There must be proof that the reception of the illegal votes changed the result. First Parish in Sudbury v. Stearns, 21 Pick. 148, 154. Trustees of School District Number Three in Blandford v. Gibbs, 2 Cush. 39, 45.
The only evidence as to the candidate for whom illegal votes were cast in a number sufficient to affect the result of the election was the testimony of some of the voters themselves. The auditor and master recounted the ballots, and found one thousand two hundred eighty-seven for Mc-Robbie and one thousand two hundred ninety-one for Wallace. We have been referred to no case in this Commonwealth, and have found none, which deals with the right or duty of voters to testify for whom they voted. But in other jurisdictions the great weight of authority supports the following propositions. A voter has a privilege not to testify for whom he voted, but may waive that privilege.. A voter
A final decree is to be entered, declaring the petitioner McRobbie duly elected, enjoining the respondent board not to count in favor of Wallace the six ballots cast in his favor by the six voters whose ballots were enclosed in envelopes upon which the affidavit was made before him as a notary public, and enjoining the respondent board to amend their certificate of election so as to show that the petitioner McRobbie was duly elected selectman of Ipswich.
So ordered.
Black v. Pate, 130 Ala. 514. Dennis v. Chilton County, 192 Ala. 146. Robinson v. McAbee, 64 Cal. App. 709. People v. Turpin, 49 Colo. 234, 243. Eggers v. Fox, 177 Ill 185. Sorenson v. Sorenson, 189 Ill. 179, 183. Buckingham v. Angell, 238 Ill. 564. Stevenson v. Baker, 347 Ill. 304. State v. Lockwood, 181 Iowa, 1233. Powers v. Harten, 183 Iowa, 764. Glenn v. Gnau, 251 Ky. 3, 90 A. L. R. 1355, and note. Hogg v. Caudill, 254 Ky. 409. Little v. Alexander, 258 Ky. 419. Gaiennie v. Druilhet, 143 La. 662. Gardner v. Board of School District No. 6, Township of Leoni, 248 Mich. 134. Hanson v. Adrian, 126 Minn. 298. Trahan v. Simmons, 191 Miss. 353. Lane v. Bailey, 29 Mont. 548, 561. People v. Wintermute, 122 App. Div. (N. Y.) 349. Torkelson v. Byrne, 68 N. D. 13. State v. Kraft, 18 Ore. 550. Horton v. Sullivan, 35 R. I. 242. Ex parte Henry, 132 Texas, 575. State v. Hilmantel, 23 Wis. 422. Wigmore, Evidence (3d ed. 1940) § 2214. 18 Am. Jur., Elections, § 308. 29 C. J. S., Elections, § 281.