268 Mass. 202 | Mass. | 1929
This is a petition for a writ of mandamus. The petitioner seeks to compel recognition of himself as member of the board of selectmen of the town of Adams by the two undoubted members of that board and to stop the third respondent from pretending to be such member. The case was reserved for the determination of the full court. The material facts are these: The town of Adams, in 1891, accepted the provisions of law providing for the printing and distribution of ballots for town elections at public expense. In November, 1894, the town voted that at its next annual meeting one selectman be chosen for one year, one for two years and one for three years, and thereafter at each annual meeting one for three years. At the annual meeting in 1895, and at each succeeding annual meeting including that for 1928, the town has elected one selectman for the term of three years in compliance with this vote. At the annual town meeting of 1926, the respondent Groves was elected a selectman for three years; he qualified and served as such selectman and still claims to hold that office as a holdover because of alleged failure to elect his successor in 1929. The respondents Plunkett and Davis have been duly elected and qualified as selectmen of the town and their terms have not expired. The official ballots used at the annual town meetings since 1896 up to and including 1928 have been in standard form and contained the following: “Selectman for Three Years Mark One.” Underneath this heading were listed the names of candidates and their party designations. The warrant for the annual town meeting in 1929 was in proper form and amongst other matters called upon the voters “To bring in their votes on one ballot for the following officers; . . . one Selectman for three years” and for other named town officers. The official ballot furnished for that meeting was in usual and regular form except that it contained this:
The record of the annual town meeting for 1929 shows that the petitioner Parrott received a majority of all the ballots cast for selectman, and that the printing on the official ballot of the term “one year” instead of “three years” was an error. The petitioner has duly taken the oath of office as selectman. “It is agreed by all parties-to these proceedings; that the warrant, calling said annual town meeting for 1929, was, among other things, to elect a selectman for the term of three years; that the town clerk submitted a form to the printer of an official ballot signed by her, on which form the term of office for selectman was designated as three years; that, through error of said printer, the official ballot, was, as used by the voters in said election, printed 'Selectman for one year,’ . . . This error was not discovered by the town officials until late in the afternoon of the day-of voting. That each candidate, by their political advertisement, asked to be elected for the term of three years, and, at the caucuses and the nomination papers each candidate was nominated for said office for the term of three years. That each candidate and each political party, by political advertising, circulated among the voters and also published in the North Adams Transcript on the evening of March first and March second, prior to said election, respectively asked the voters of Adams to vote for their respective candidates ‘for Selectman for the term of three years.’ ”
In these circumstances the petitioner contends that he has been elected selectman, at the annual town meeting for 1929. The respondent Groves contends that there was no election of a selectman at that meeting and that hence he holds over as selectman in default of such election; and the two respond-
Mandamus is the appropriate remedy. No question has been raised on this point. Luce v. Dukes County, Board of Examiners, 153 Mass. 108, 111. Keough v. Aldermen of Holyoke, 156 Mass. 403. Sevigny v. Bussell, 260 Mass. 294.
The purpose of election laws is to afford opportunity for the orderly expression of preferences by the voters for those to be elected to public office, and not to thwart or suppress such orderly expression. The election laws of this Commonwealth providing for official ballots have uniformly been interpreted to the end that the will of the voter if ascertainable is to be given effect even though there may have been omission to observe some subsidiary and directory provisions of the law. In O’Connell v. Mathews, 177 Mass. 518, ballots prepared and delivered by the designated public officers and cast by voters were received and counted which did not have on the back and outside of them when folded the printed words “Official Ballot of” followed by the designation of the voting precinct, the date of the election and a facsimile of the signature of the city clerk as required by the election law. There was a further provision of that law (St. 1898, c. 548, § 230) to the effect that no ballot without the required official indorsement should be deposited in the ballot box. In passing upon proceedings to challenge the validity of those ballots actually deposited by voters in the ballot box, it was held that they were rightly counted because otherwise the voter would be disfranchised and that this “result is not to be admitted without very clear words, and such words would raise a constitutional question which we do not decide.” In Wheeler v. Carter, 180 Mass. 382, there was under review an election in a town which had accepted the provisions of law requiring members of the board of selectmen to be elected for three years. The warrant for that election contained the article “to choose all necessary town officers for the ensuing year.” It was held that the article “To choose officers for
• In the case at bar the only term for which a selectman could have been elected under the law at the annual town meeting in Adams in 1929 was for a term of three years. The warrant for that town meeting correctly stated that it was to be held for the election of one selectman for the term of three years. Thus the statute and the warrant declared and bounded the power of the voter on that subject. The ballot was prepared under the authority of law by public officers and furnished to the voters. They could usé no other ballots. The intention of the voter must be expressed upon the piece of paper prepared and handed to him by public officials. There was a clerical error on that ballot. It was unnecessary that the term of office for the selectman should be printed on the ballot. If nothing as to the term had been upon the ballot the statute and the warrant would have made plain that the term for which the selectman was to be elected was three years. The voter was not responsible for the fact that the official ballot contained this clerical error. The clerical error stating the term to be one year could in
There is nothing at variance with this conclusion in the decision in Attorney General v. Hutchinson, 185 Mass. 85. That case is obscurely reported. An examination of the original papers shows that in the town of Lexington, where that controversy arose, official ballots were used in elections
The conclusion follows that under well settled principles of election law the petitioner was lawfully elected selectman of the town of Adams at the annual town meeting of 1929 for the term of three years.
Peremptory writ of mandamus to issue requiring the respondent Groves to desist from pretending to he selectman and requiring the other two respondents to recognize the petitioner as selectman.