257 Mass. 332 | Mass. | 1926
These are petitions for writs of mandamus brought against the Board of Election Commissioners of the City of Boston, the Board of Registrars of Voters of the City of Chelsea, and the Board of Registrars of Voters of the City of Revere. At the hearing in this court the questions raised by the petition of Charles G. Keene v. Board of Election Commissioners of the City of Boston were waived, and, therefore, that petition need not be considered. The re«maining three petitions present for determination questions touching the counting of ballots cast at the State primary with respect to the republican nomination for the office of district attorney for Suffolk County. For convenience, Thomas C. O’Brien will be referred to as the petitioner, and Charles G. Keene as the intervener. The cases were referred to an auditor, who made findings of fact, and later, on his report, were heard before a single justice. The- disputed ballots were offered and received in evidence without objection. The evidence of the intervener, reported by the auditor for a limited purpose, was received by the single justice for every competent purpose with additional evidence which all counsel agreed would have been given by the intervener if he had been further examined. All the evidence including the auditor’s report was considered by the single justice who followed the classification of votes adopted by the auditor, having found it to be a reasonable and comprehensive method for examination of the disputed ballots. He found the facts with respect to the description of the ballots, the markings thereon, the posters, and the enumeration of ballots to be the same as found by the auditor. The single justice found the facts and conclusions of fact to be as stated in the auditor’s report and reserved the petitions, on the facts thus found and the pleadings, for determination by this court.
The relevant facts thus found are, that the name of the petitioner and of one William J. Patron appeared upon the official ballots as candidates for the office of district attor
Another group of ballots had a paster, accompanied or unaccompanied by a cross, located outside the space designated for candidates for district attorney or had a paster unaccompanied by a cross within the district attorney space, where a cross had been made in the square opposite the name of the petitioner. The finding as to these ballots is, that the voter had done everything necessary or proper for him to do to express his choice for the petitioner and that the use of the paster, as described, did not show a purpose to vote for two candidates, but indicated more probably that, after applying the paster by mistake, the voter changed his mind. Such ballots were found to express an intent to vote for the petitioner.
After making these general findings, the different classes of ballots were dealt with in detail by the auditor and the single justice: Class A consists of ballots with posters unaccompanied by a cross and located upon the ballot in some place other than under the designation district attorney, there being no cross in the district attorney space. These ballots were found not to express any ascertainable intent on the part of the voter and to be blank votes as to
It is not necessary to consider the votes under the group of ballots entitled on the record Miscellaneous Class, because they are few in number and do not affect the general result, and we do not understand that any special argument has been directed to overturning the findings with respect to them.
These petitions are proceedings at law. Therefore, these findings of fact, if warranted upon any view of so much of the evidence as appears in the record, must be accepted as true. They can be set aside only if without support in the report. Brewster v. Sherman, 195 Mass. 222, 226. Moss v. Old Colony Trust Co. 246 Mass. 139, 143.
The cardinal rule for guidance of election officers and courts in cases of this nature is that if the intent of the voter can be determined with reasonable certainty from an inspection of the ballot, in the light of the generally known conditions attendant upon the election, effect must be given to that intent and the vote counted in accordance therewith, provided the voter has substantially complied with the requisites of the election law; if that intent cannot thus be fairly and satisfactorily ascertained, the ballot cannot rightly be counted. Strong, petitioner, 20 Pick. 484. Flanders v. Roberts, 182 Mass. 524. Ray v. Registrars of Voters of Ashland, 221 Mass. 223, 225. Beauchemin v. Flagg, 229 Mass. 23, 24. Of course the right to vote is a sacred privilege. Every rational intendment is to be made in favor of its rightful exercise. But the Legislature is clothed with power to enact appropriate laws to regulate the orderly conduct of elections and to facilitate the counting of votes. Where reasonable statutes have been enacted to this end, the voters must observe their terms and exercise the franchise under the law. Blackmer v. Hildreth, 181 Mass. 29.
The findings of the auditor and the single justice upon the facts disclosed on this record were warranted under this rule.
The crucial finding underlying the determination of the auditor and single justice is that it was impossible for them to ascertain the intent of the voter to vote for the intervener for district attorney unless the paster was under the designation district attorney and was marked with a cross or other sign disclosing a purpose to vote. That finding has support in reason. It cannot be said that the placing of the paster on some other part of the ballot than under the designation district attorney is a manifestation of purpose to vote for district attorney. Thus placing the sticker may be by mis
The findings as to the ballots where a name or portion of a name was written under the designation district attorney cannot be pronounced erroneous in law. The name of a person is the distinctive characterization in words or words and initials by which he is known and distinguished from others. The use of the name commonly identifies a person. Where a description other than his name is used it generally is a question of fact whether such description identifies the particular person. Discriminative abbreviations may or may not be sufficient. Certain descriptions may leave no doubt as to the person intended. That is illustrated in the case at bar by the use of the surname together with an official title unmistakable in signification. But it cannot be said as matter of law that a surname alone, a surname with a different Christian name, or other incorrect or incomplete naming such as appeared upon the disputed ballots, identifies the intervenor as the. specified individual intended by the voter. There is .nothing inconsistent with this conclusion in Strong, petitioner, supra. Where the name written was idem sonans with that of the intervenor the
The auditor and single justice each made his determination in the light of all the extraneous evidence presented. Giving full weight to that evidence, no sound ground appears for overturning their determination on this point. It is not necessary to consider further questions of evidence, even if it be assumed that they are rightly before us on this record.
All questions of law which have been argued have been considered, but need not be discussed further. No reversible error of law appears on the record.
It follows that the conclusions of the auditor affirmed and adopted by the single justice as to the vote in Boston, Chelsea and Revere must be adopted by the respondents. In the case against the Board of Election Commissioners of the City of Boston there should be added two hundred and thirty-three votes to the vote of the petitioner as found by the respondent board, namely, ten thousand, six hundred and twenty-one, making his total vote ten thousand, eight hundred and fifty-four. From the total vote for the intervenor, as determined by the respondent board, namely, twelve thousand, four hundred and ninety-one, there should be deducted five hundred and fifty-one votes, leaving his total vote eleven thousand, nine hundred and forty. In the case against the Board of Registrars of Voters of the City of Chelsea the vote for the petitioner should be nine hundred and sixty instead of nine hundred and forty-three; and for the intervenor five hundred and thirty-five instead of five hundred and sixty-nine. In the petition of Charles G. Keene v. Board of Registrars of Voters of the City of Revere, the vote for Mr. O’Brien should be two thousand, one hundred and one, being the number determined by the respondent
Peremptory writs of mandamus to issue accordingly.