281 Mass. 264 | Mass. | 1932
The petitioner seeks review of a recount made by the board of registrars of voters in the town of Milton, and an order that they be directed to reject certain ballots counted by them.
The relevant facts are these:. The petitioner was a candidate for the office of Lieutenant Governor at the State election held on November 8, 1932. The respondents constitute the board of registrars of voters of the town of
The ballots cast in the election when returned to the town clerk were not guarded from the possibility of unauthorized
The question for decision is the effect upon the recount and the result of the election in the town of Milton, so far as concerns the vote for Lieutenant Governor, of the accidental destruction of a part of the ballots cast in precinct 2 in the circumstances already narrated.
Proceedings for a recount of votes cast at an election are strictly statutory. They are of no effect unless authorized, begun and conducted as provided by the statute. Eldridge v. Selectmen of Chatham, 192 Mass. 409, 411. The function of the registrars under the governing statute, G. L. (Ter. Ed.) c. 54, § 135, in a case like the present is to make the recount and sign “a statement of their determination of the questions raised.” It then becomes the duty of the town clerk to “alter and amend, in accordance with such determination, such records as have been found to be erroneous.” The record originally returned, as examined and corrected under G. L. (Ter. Ed.) c. 54, § 111, stands as the correct statement of the vote except as changed by the report of the registrars under § 135. The registrars have made no change in the original return for precinct 2. They found no error in that return.
The main purpose of the election statutes is to provide a convenient method for the voter qualified according to law to express in secret his preference for persons to be elected to the several offices to be filled and on the questions to be answered at an election and to have that expression of preference counted fairly and honestly, all in conformity to reasonable regulations. The statutes of this Commonwealth contain in great detail requirements as to the preparation and distribution of ballots, the marking and deposit of them in ballot boxes, the counting of those ballots and the making of official returns of the results of the voting. Cole v. Tucker, 164 Mass. 486. O’Brien v. Election Commissioners of Boston,
The record in the case at bar discloses nothing irregular in connection with the election. The ballots were lawfully cast and counted and returned, and the results declared with all the safeguards required by the law and under all its presumptions as to correctness. Thereafter but before the petition for recount was filed, some of the ballots thus cast were innocently destroyed by accident and mistake. No fraud is disclosed. No intent on the part of anybody to interfere with a recount or to affect the operation and result of the election is revealed. To hold that these entirely guiltless acts invalidate the votes of precinct 2 would have the effect of disfranchising at least fifteen hundred six voters or, according to other suggestions made in argument, all the voters of that precinct or of the entire town. Such a result would be unnatural. It would violate fundamental conceptions as to the operation of democratic institutions and the safety of our form of government.
The statutes do not require any conclusion of that nature. The right to a recount is secured to specified numbers of voters under G. L. (Ter. Ed.) c. 54, § 135. That right must be given all the protection accorded to it by the General Court. But it does not mount higher than the election itself. It arises subsequently to the election. It has no essential connection with the election. The statutes cannot rightly be interpreted to accomplish the disfranchisement of hundreds and perhaps thousands of voters who have complied with every provision of the law, who are entitled to have force and effect given to their votes and whose votes have been once
The original count of the votes in the town of Milton as returned by the precinct officers and corrected will stand as true under G. L. (Ter. Ed.) c. 54, § 111, except as amended by the determination of the registrars of voters made under said § 135.
The respondents with respect to the recount acted in conformity to law and no error is disclosed on this record.
The petitioner brought a suit in equity and also a petition for a writ of mandamus, both to obtain the same relief. They have been consolidated for the purpose of being heard together. Lumiansky v. Tessier, 213 Mass. 182. It seems apparent that the appropriate proceeding for an inquiry such as is here raised is by mandamus and not in equity. Flanders v. Roberts, 182 Mass. 524, 529, and cases cited. Brewster v. Sherman, 195 Mass. 222, 225, and cases cited. Perry v. Hull, 180 Mass. 547, is there distinguished. Those cases
Bill dismissed.
Petition dismissed.