281 Mass. 271 | Mass. | 1932
This petition for a writ of mandamus raises questions touching the recount of ballots cast in the city of Quincy for Lieutenant Governor at the State election held on November 8, 1932.
1. One allegation in the petition is that a substantial number of ballots “were not cancelled as required by law.” The facts pertinent to this allegation are that when the ballot presented for deposit by the voter is inserted in the aperture on the top of the ballot box and the handle on the outside of the box is turned, rubber rollers within the box grasp the ballot and draw it into the' box. The rubber rollers are so constructed that one of them is intended to stamp upon the back of each ballot the name of the city, the ward number and precinct number in which the ballot is cast. The roller designed to do this stamping is inked from a pad incorporated into the mechanism in the top of the ballot box. The pad is also a roller which moves on a shaft and is so placed and designed that it is in constant contact with another roller upon whose surface are the stamping letters and figures. The rollers and inking device are in the same separate locked portion of the ballot box. There is no arrangement for the mechanical or automatic replenishment of ink on the inking roller and no replenishment is possible without opening the mechanical portion of the ballot box. During the voting period the amount of ink on the pad can be determined only by opening the upper part of the ballot box and inspecting the pad. The key for such opening is in the sole possession of the police officer on duty at each precinct. The only means of ascertaining whether the cancelling device is in fact stamping the ballots as deposited in the box is by examination of the ballots after they have passed into the box or by examining the cancelling device after opening the mechanical portion of the ballot box. Each ballot box contains on its face a numbering device designed to record the number of ballots passing into the box as deposited by the voters, which operates by means
The election law, G. L. (Ter. Ed.) c. 54, contains ample safeguards as to the count of those who receive ballots and of those who deposit ballots'. It is provided by § 67 that one voting list shall be delivered to the ballot clerks and another to the officers in charge of the ballot box. When a ballot is delivered to a voter, his name shall be checked on the first list and when he deposits his ballot it shall be checked on the second list. Each voter on receiving his ballot, § 76, and again on depositing it in the ballot box, § 83, is required to give his name and, if requested, his address to an election officer, who shall distinctly announce such name. The ballot box is required to have mechanical devices for registering the number of ballots cast. § 33. As soon as the polls are closed, the clerk is required to record the number shown by the register on the ballot box. The election officers are required to count audibly the number of names checked on each voting list and announce the same. Then the presiding officer shall open the ballot box, the ballots are counted audibly, one by one, and the whole number is publicly announced. § 105. All these acts precede the counting of the votes cast for the several candidates. The voting lists, records and ballots must be carefully preserved. § 107. Thus there are four separate and independent methods of ascertaining the number of votes cast. Provision is made for equal representation of both the major political parties in the appointment of election officers and their participation in vital steps in the conduct of the election and the counting of ballots. §§ 13, 14, 67, 105. Nothing in this record suggests any disparity between the number of ballots in the ballot box and the number of names of voters checked on the lists and the number registered by the ballot box. There is no basis for a suggestion that the uncancelled ballots were not actually deposited in the ballot box by duly qualified voters in compliance with all the requirements of the election laws. Manifestly each of these ballots passed through the cancelling device and was subject to its operation.
It is provided by G. L. (Ter. Ed.) c. 54, § 33, that “Ballot boxes shall . . . contain mechanical devices for receiving, registering and cancelling every ballot deposited therein.” There are minute provisions as to the approval of ballot boxes and their purchase, care, custody, repair and inspection by public officers. §§ 26, 28, 29, 31, 32, 33, 37, 38. They must be inspected at the opening of the polls and before the beginning of the balloting by the election officers and publicly shown, as assurance that they are empty, and then immediately be locked or fastened and not thereafter removed from public view until after the polls are closed. It is further provided by said § 66 that thereafter “The ballot box shall not be opened . . . until the polls are closed . . . but in order to make room for ballots, the presiding officer may, in the presence of all the election officers, open the box and pack and press down the ballots therein.” Further provision is made if it becomes impossible to use the ballot box. Thus it appears that there is no statutory provision to enable or permit the election officers to ascertain during the progress of the voting whether the internal mechanism of the ballot box is working. The cancelling device might fail to cancel the ballots and the most careful voter and the most alert election officers have no knowledge of the fact. They are deprived by the statute of any possibility of knowing of such defect in the operation of the
Whether an election statute couched in positive words of command is to be construed as intended to invalidate ballots actually cast under all the sanctions of the law must be determined from a broad view of the end and aim of elections and election law rather than from resort to strict logomachy and syntax. It was said by Chief Justice Shaw in Torrey v. Millbury, 21 Pick. 64, 67, respecting the meaning of “shall” in several sections of a statute as to the assessment of taxes, that “many regulations are made by statute . . . intended to promote method, system and uniformity in the modes of proceeding, the compliance or non-compliance with which, does in no respect affect the rights of . . . citizens.” The word “shall” as used in statutes, although in its common meaning mandatory, is not of inflexible signification and not infrequently is construed as permissive or'directory in order to effectuate a legislative purpose. Cheney v. Coughlin, 201 Mass. 204. Rea v. Aldermen of Everett, 217 Mass. 427, 430. In almost every section of our present election law the word “shall” is used. Manifestly, it could not have been intended that noncompliance with any one of these provisions should invalidate an election. The designation “mandatory” or “directory” often is convenient in discussing the meaning of “shall” and “may” in statutes. It is an aid to interpretation to establish tests by which to measure legislative intent. But all such tests must yield to the underlying .aim of all statutory interpretation, which is to discern the legislative intent disclosed by the enactment as an entirety in the light of its dominant purpose and to declare its appropriate application to particular facts. The regnant design of all election laws is to provide expeditious and convenient means for expression of the will of the voters free from fraud. The right to vote is a precious personal prerogative to be ¡sedulously guarded. Arts. 4, 7, 8, 9 of the Declaration of Rights. The public welfare demands that elections be pro
Cases have arisen where the voter has failed on his own part to conform to prerequisites of the law essential to express his preference, and has thereby by his own act disfranchised himself. Flanders v. Roberts, 182 Mass. 524. Brewster v. Sherman, 195 Mass. 222. Andrews v. Registrars of Voters of Easton, 246 Mass. 572. Madden v. Election Commissioners of Boston, 251 Mass. 95. Those are instances where the voter failed to make clear his purpose or tried to express an impossible purpose. The plaintiff in Cole v. Tucker, 164 Mass. 486, although given the opportunity to use the official ballot, insisted upon using a privately prepared ballot, thus trying to set up his own will against the plain terms of the statute. He was attempting to make a disorderly expression of his preference. All these decisions but illustrate the rule we have stated.
This review of our decisions affords plenary examples where the word "shall” in the election laws has not been given such imperative effect as to circumvent the intent of a voter casting a ballot expressive of his purpose in accordance with the provisions of law.
It is plain that in the present case the presence of uncancelled ballots in the ballot box was due solely to the failure of the mechanisms within the ballot box to operate as they were designed, to operate. The voters and election officers conformed to the requirements of the election statutes in every particular. They did everything in their power to make every ballot effective. All their conduct was in order. The voters were blameless. They were and doubtless still are unconscious of the defective mechanism in respect to their particular ballots. The same is true of the election officers. No human being has intermeddled in the matter. The only thing contrary to the statute was that an inanimate mechanism, concerning the care and repair of which nothing appears to have been omitted, commonly and so far as appears theretofore invariably set in motion by the turn of a handle accompanying the act of deposit of the ballot by the voter, did not make the stamp on the ballot which it was designed to
The decision on this point does not rest upon the provisions of art. 9 of the Declaration of Rights securing the right to vote, nor upon art. 38 of the Amendments to the Constitution as to voting machines. It is an interpretation of the statutes as to elections applied to the facts here disclosed. Constitutional questions which might arise from a rigid and inflexible construction of said § 106 need not be considered. This conclusion is reached having in mind the principle that statutes ought to be so applied as to avoid grave doubts as to their constitutionality. Kennedy v. Commissioner of Corporations & Taxation, 256 Mass. 426, 430. Blodgett v. Holden, 275 U. S. 142, 148.
Adjudications from other jurisdictions have been cited in argument. Some of them contain expressions more or less at variance with what is here decided. Most, if not
2. A substantial number of absentee ballots were duly delivered to the election officers of the several precincts of Quincy on election day before the hour for closing the polls in the envelopes in which they were received, each envelope containing a notarial certificate. No contention is made that there was not compliance with all the formalities required of election officers by G. L. (Ter. Ed.) c. 54, § 95. After these ballots were counted, they were returned to the city clerk by the election officers, but the envelopes in which they were received were not so returned. These ballots were delivered by the city clerk to the board of registrars for recounting; but no envelopes were so delivered and it is not known where they are. It is provided by § 91 that the city clerk shall mark upon the voting list opposite the name of each person registered as an absent voter the letters in capitals A. V. By said § 95 it is required that all envelopes “shall be retained” with the ballots cast at the election, and preserved and destroyed in the manner provided by law for the retention, preservation or destruction of official ballots, and that the tally sheets in use at elections shall provide in convenient form for the recording thereon of all envelopes of absent voters. There is nothing in the record to indicate fraud or tampering. This failure on the part of election officers to perform the precise duty imposed on them with respect to the envelopes does not invalidate the votes or afford any ground for nullifying the count. This branch of the case falls within the authority of several decisions. O’Connell v. Mathews, 177 Mass. 518. Blackmer v. Hildreth, 181 Mass. 29. Ray v. Registrars of Voters of Ashland, 221 Mass. 223. Swift v. Registrars of Voters of Milton, ante, 264.
3. At the hearing before the single justice there were introduced in evidence eighteen papers agreed to be facsimile reproductions of such portions of eighteen ballots cast at
Petition dismissed.