Digitized by the Internet Archive in 2010 with funding from Boston Library Consortium Member Libraries http://www.archive.org/details/reportsofcontest0322mass Public Document No. 37 REPORTS of CONTESTED ELECTION CASES in the SENATE AND HOUSE OF REPRESENTATIVES of THE COMMONWEALTH OF MASSACHUSETTS FOR THE YEARS 1903-1922 TOGETHER WITH THE OPINIONS OF THE SUPREME JUDICIAL COURT RELATING TO SUCH ELECTIONS Compiled and edited by PAUL D. HOWARD For the Special Legislative Committee on Con- tested Election Cases under Authority of a Joint Order of the Senate and House of Representatives BOSTON WRIGHT & POTTER PRINTING COMPANY. STATE PRINTERS 32 DERNE STREET Cfje Commontoealtft of Qiaggacjmgettsi To the General Court of Massachusetts. The Special Recess Committee on Contested Election Cases, authorized in accordance with a joint order of the Senate and House of Representatives, adopted May 27, 1921, has the honor to transmit the following report. ANDREW A. CASASSA, Chairman. frank h. putnam, william h. McDonnell. LLOYD MAKEPEACE, V ice-Chairman. JOHN C. BRIMBLECOM. WALTER S. HALE. ALFRED H. WHITNEY. CARL J. ROLANDER. WILLIAM H. WINNETT. WILLIAM H. GRADY. PAUL D. HOWARD, Clerk. Cfje Commontoealti) of Q&a$wtt)umt$ The Joint Special Recess Committee on Contested Election Cases was established under the following order: ■ — Ordered, That a joint special committee, to consist of three members of the Senate and seven members of the House committee on Elections, sit during the recess of the General Court for the purpose of preparing and publishing an edition of the reports of such contested elections of the Legislature, from the year nineteen hundred and three to the year nineteen hundred and twenty-one, inclusive, as may be of value as prece- dents, with a suitable index thereto. The committee shall be furnished with a room in the State House, and shall have the service of a clerk who shall be allowed such compensation as may be approved by the Governor and Council. Members of the committee shall receive no com- pensation for their services, but may be allowed for necessary expenses such sums as may be approved by the Governor and Council. The com- mittee shall report to the next annual session of the General Court not later than the second Wednesday in January. CASES REPORTED. PAGE Aldrich (Riley v.) . House, 1904 . 28 Apportionment Commissioners (Attorney-Gen- eral v.) . Sup. Jud. Ct., 1916 . . 165 Apportionment Commissioners (Brophy v.] . Sup. Jud. Ct., 1916 . . 189 Apportionment Commissioners (Donovan d.) . Sup. Jud. Ct., 1916 . . 179 Ashley v. Three Justices of Superior Court . Sup. Jud. Ct., 1917 . 194 Attorney-General v. Apportionment Commis- sioners . Sup. Jud. Ct., 1916 . 165 Attorney-General v. Campbell . Sup. Jud. Ct., 1906 . 123 Attorney-General v. Hutchinson . . Sup. Jud. Ct., 1904 . 119 Attorney-General v. McOsker . Sup. Jud. Ct., 1908 . 142 Attorney-General v. Stearns . . Sup. Jud. Ct., 1908 . 142 Beauchemin v. Flagg .... . Sup. Jud. Ct., 1918 . 217 Blackmer v. Hildreth .... . Sup. Jud. Ct., 1902 . 95 35 58 53 Brewster v. Sherman .... . Sup. Jud. Ct., 1907 . 132 Brophy v. Apportionment Commissioners . Sup. Jud. Ct., 1916 . 189 73 73 73 73 . House, 1921 ... 69 Campbell (Attorney-General v.) . . Sup. Jud. Ct., 1906 . 123 , House, 1911 . 44 Carter (Wheeler v.) . . . ■' . . Sup. Jud. Ct., 1902 . 87 . Senate, 1912 47 Cobb (Whitney v.) 56 15 Commonwealth v. Edgerton . . Sup. Jud. Ct., 1909 . 147 Commonwealth v. Rogers . Sup. Jud. Ct., 1902 . 99 County Commissioners (McGlue v.) . . Sup. Jud. Ct., 1916 . 183 Crean (Fritz v.) . Sup. Jud. Ct., 1903 . 109 . House, 1910 . 40 Dinan v. Swig . Sup. Jud. Ct., 1916 . 160 Donovan v. Apportionment Commissioners . Sup. Jud. Ct., 1916 . 179 73 73 Edgerton (Commonwealth v.) . Sup. Jud. Ct., 1909 . 147 Eldridge v. Selectmen of Chatham . Sup. Jud. Ct., 1906 . 129 Election Commissioners (Nichols v.) . . Sup. Jud. Ct., 1907 . 136 Fisher (McGlue v.) .... Flagg (Beauchemin v.) . . . . House, 1913 . 52 . Sup. Jud. Ct., 1918 . 217 Flanders v. Roberts .... . Sup. Jud. Ct., 1903 . 113 32 Fritz v. Crean . Sup. Jud. Ct., 1903 . 109 CASES REPORTED. Harvey v. Bradbury House, 1920 . Hildreth (Blackmer v.) Sup. Jud. Ct., Hull (Perry v.) Sup. Jud. Ct., Hutchinson (Attorney-General v.) Sup. Jud. Ct., Kiernan (Carleton v.) House, 1911 Lambert v. Forristall . .' . . . House, 1907 Lattimore v. Burke House, 1921 . Lattimore v. Driscoll House, 1921 . Mansfield v. Secretary of Commonwealth . . Sup. Jud. Ct., McGlue v. County Commissioner . . . Sup. Jud. Ct., McGlue v. Fisher House) 1913 . McOsker (Attorney-General v.) . . . . Sup. Jud. Ct., Moore v. Booth House» 1910 . Naphen v. Brennan House. 1914 . Newell v. Coffin House, 1903 . Nichols v. Election Commissioners . . . Sup. Jud. Ct., Perry v. Hull Sup. Jud. Ct., Pratt v. Sargent House, 1912 . Ray v. Registrars of Voters of Ashland . . Sup. Jud. Ct., Registrars of Voters of Ashland (Ray v.) . . Sup. Jud. Ct., Riley v. Aldrich House, 1904 . Roberts (Flanders v.) Sup. Jud. Ct., Rogers (Commonwealth v.) Sup. Jud. Ct., Sargent (Pratt v.) House, 1912 . Secretary of Commonwealth (Mansfield v.) . Sup. Jud. Ct., Selectmen of Chatham (Eldridge v.) . . . Sup. Jud. Ct., Sherman (Brewster v.) Sup. Jud. Ct., Stearns (Attorney-General v.) Sup. Jud. Ct., Sullivan (Dennett v.) House, 1910 . Sweeney (Callahan v.) House, 1921 . Swig (Dinan v.) Sup. Jud. Ct., Three Justices of Superior Court (Ashley v.) . Sup. Jud. Ct., Vinson (Clarkson v.) Senate, 1912 Wheeler v. Carter Sup. Jud. Ct., Whitney v. Cobb House, 1915 . PAGE 58 1902 . 95 1902 . 93 1904 . 119 44 32 73 73 1917 . 213 1916 . 183 52 1908 . 142 35 53 15 1907 . 136 1902 . 93 . 45 1915 . 155 1915 . 155 28 1903 . 113 1902 . 99 . 45 1917 . 213 1906 . . 129 1907 . . 132 1908 . . 142 . 40 . 69 1916 . . 160 1917 . 194 . 47 1902 . 87 56 CASES CITED. PAGE Adams v. Lanadon, 18 Idaho, 483 211 Adams v. Moore, Mass. Election Cases, 1886-1902 (Russell's ed.) , 79 . 37, 38 Ames v. Kansas, 111 V. S. 449 204,206 Apple v. Barcroft, 158 111. 649 157 Attorney-General v. Apportionment Commissioners, 224 Mass. 598 . 179, 181, 186, 187, 190 Attorney-General v. Boston, 123 Mass. 460 134, 176 Attorney-General v. Campbell, 191 Mass. 497 68 Attorney-General v. City Council of Lawrence, 111 Mass. 90 176 Attorney-General v. Crocker, 138 Mass. 214 91 Attorney-General v. Drohan, 169 Mass. 534 116 Attorney-General v. Jochin, 99 Mich. 358 ...... . 203 Attorney-General v. Provident Institution for Savings, 201 Mass. 23 . 184 Attorney-General v. Sullivan, 163 Mass. 446 202, 204, 206 Attorney-General v. Tillinghast, 203 Mass. 539 209 Austin v. Sweet, Mass. E. C. L. & R. 189-190 20 Bailey v. Marden, 193 Mass. 277 215 Baird v. Supervisors of King's County, 138 N. Y. 95 . . . . 173 Beauchemin v. Flagg, 229 Mass. 23 68 Berea College v. Kentucky, 211 V. S. 45 . . . . . . . . 210 Beremyer v. Kreitz, 135 111. 591 64 Blackmer v. Hildreth, 181 Mass. 29 127, 134, 159 Bogin v. Perotti, 224 Mass. 152 208 Boston, petitioner, 221 Mass. 468 . ' 164 Boston v. Chelsea, 212 Mass. 127 . . ... . . . . . 163 Boston Supply v. Rubin, 214 Mass. 217 158 Bothwell v. Boston Elevated Railway, 215 Mass. 467 209 Bowers v. Smith, 111 Mo. 45 106,128 Brayton v. Fall River, 124 Mass. 95 164 Brewster v. Sherman, 195 Mass. 222 ... 37, 38, 43, 68, 176, 184, 218 Brien v. Commonwealth, 5 Met. 508 201 Bromberg v. Haralson,, 44th Congress, Smith, 355 83 Brooks v. State, 162 Ind. 568 192 Brown's Case, 173 Mass. 498 . 206, 209 Brown v. McCollum, 76 Iowa, 479 63, 157 Burt v. Babbitt, Mass. E. C. L. & R. 174-175 20 Capen v. Foster, 12 Pick. 485 . 100, 169 Carleton v. Rugg, 149 Mass. 550 204 Case of Supervisors of Elections, 114 Mass. 247 163 Cheney v. Barker, 198 Mass. 356 176 Cheney v. Coughlin, 201 Mass. 204 200 Claflin v. Wood, L. & R. E. C. 353 26 Clark v. Board of Examiners, 126 Mass. 282 117 Cleland v. Porter, 74 111. 76 128 Coffin v. Coffin, 4 Mass. 1 162 10 CASES CITED. Cole v. Tucker, 164 Mass. 486 Collins v. Cogswell, L. & R. 390 .... Commonwealth v. Anthes, 5 Gray, 185 Commonwealth v. Bingham, 158 Mass. 169 Commonwealth v. Bishop, 165 Mass. 148 Commonwealth v. Boston & Northern Street Railway, Commonwealth v. Brown, 14 Gray, 419 . Commonwealth v. Connelly, 163 Mass. 539 Commonwealth v. Coy, 157 Mass. 200 Commonwealth v. Dill, 160 Mass. 536 Commonwealth v. Donovan, 170 Mass. 228 Commonwealth v. Gagle, 147 Mass. 576 . Commonwealth v. Harley, 7 Met. 506 Commonwealth v. Hoxey, 16 Mass. 385 . Commonwealth v. Hunton, 168 Mass. 130 Commonwealth v. Hunt, Thach. Crim. Cas. 609 Commonwealth v. Ingraham, 7 Gray, 46 . Commonwealth v. Ismahl, 134 Mass. 201 Commonwealth v. Kellogg, 7 Cush. 473 . Commonwealth v. Leach, 156 Mass. 99 . . . Commonwealth v. Libbey, 216 Mass. 356 Commonwealth v. McConnell, 162 Mass. 499 Commonwealth v. McHale, 97 Penn. St. 397 . Commonwealth v. Meserve, 154 Mass. 64 Commonwealth v. Moody, 143 Mass. 177 Commonwealth v. Moore, 214 Mass. 19 . Commonwealth v. National Contracting Co., 201 Mass Commonwealth v. O'Brien, 12 Cush. 84 . Commonwealth v. Petranich, 183 Mass. 217 . Commonwealth v. Phelps, 210 Mass. 78 . Commonwealth v. Poisson, 157 Mass. 200 Commonwealth v. Scott, 123 Mass. 222 . Commonwealth -a. Shaw, 7 Met. 52 . Commonwealth v. Silsbee, 9 Mass. 417 Commonwealth v. Smith, 132 Mass. 289 . Commonwealth v. Smith, 163 Mass. 411 . Commonwealth v. Sullivan, 165 Mass. 183 Commonwealth v. Waterman, 122 Mass. 43 . Commonwealth v. Wilson, 152 Mass. 12 . Connecticut River Railroad v. County Commissioners, Coughlin v. McElroy, 72 Comm. 99 . County Commissioners, petitioners, 140 Mass. 181 County of Berkshire v. Caude, 222 Mass. 87 . Cox v. Segee, 206 Mass. 380 Crafts v. Sikes, 4 Gray, 194 Cunningham v. Mayor of Cambridge, 222 Mass. 574 Dartmouth v. County Commissioners, 153 Mass. 12 Dearborn v. Ames, 8 Gray, 1 Denney v. Mattoon, 2 Allen, 361 Denney v. State, 144 Ind. 503 . Detroit v. Inspectors of Elections, 139 Mich. 548 DeWalt v. Bartley, 146 Penn. St. 529 Diehl v. Totten, 32 No. Dak. 131 . . Dinan v. Swig, 223 Mass. 516 .... Donohue v. County of Will, 100 111. 94 . 101, 157, 159, 212 Mass. 82, S6 248 127 Mass. 50 PAGE 206, 208 21 209 107 108 181 107 104 108 104 104 153 105 103 107 104 107 103 105 103 208 107 103 105 105 181 214 105 210 201 108 107 104 103 45, 127 107 106 104, 107 107 211 157 164 210 176 199 209 199 201 164 180 141 102 210 63, 210 203 CASES CITED. 11 PAGE Donovan v. Apportionment Commissioners, 225 Mass. 55 . . 186, 187, 190 Dowdell, Petitioner, 169 Mass. 387 205, 209 Drogheda Election Petition, 9 Jr. L. T. R. 161 106 Electric Welding Co., Ltd., v. Princo, 200 Mass. 386 170, 214 Elwell ». Comstock, 99 Minn. 261 141 Ewing v. Filley, 43 Penn. St. 384 202 Ex parte Harrison, 212 Mo. 88 211 Ex parte Oklahoma, 220 U. S. 191 211 Ex parte Wilson, 114 U. S. 417 . . . 206 Fitzgerald v. Mayor of Boston, 220 Mass. 503 175 Flanders v, Roberts, 182 Mass. 524 . . . 37, 42, 63, 134, 135, 157, 176, 218 Fletcher v. Wall, 172 111. 426 157 Foster v. Boston Elevated Railway, 214 Mass. 61 170 French v. Bacon, E. C. 1853-1885, p. 184 ....... 61 Fritz v. Crean, 182 Mass. 433 117 Giddings v. Secretary of State, 93 Mich. 1 180 Goodrich v. Lunenberg, 9 Gray, 38 180 Graham v. Roberts, 200 Mass. 152 206 Gray v. McLendon, 134 Ga. 224 203 Green v. Corey, 210 Mass. 536 64 Green v. Holway, 101 Mass. 243 159 Guinn v. United States, 238 U. S. 347 . . 210 Halleck v. Boylston, 117 Mass. 469 92 Harrison v. Davis, 1 Bartlett, 341 ......... 92 Haskell v. Clossom, L. & R. E. C. 233 . 26 Hatch v. Reardon, 204 U. S. 152 . . . 184 Hawkins v. Roberts & Son, 122 Ala. 130 203 Hays v. Missouri, 120 U. S. 68 209 Hill v. McKim, 168 Mass. 100 94 Hillman v. Flanders, Mass. E. C. L. & R. 338 ...... 46 Hingham & Quincy Bridge Corporation v. County of Norfolk, 6 Allen, 353 184 Hiss v. Bartlett, 3 Gray, 468 162 Howes v. Turner, L. R. 1 C. P. D. 670 98 Hoxie v. Edwards, 24 R. I. 338 128 Hyde Park v. Wiggin, 157 Mass. 94 211 International Text Book Co. v. Pigg, 217 U. S. 91 210 In re Baird, 142 N, Y. 523 .... , 187, 193 In re Flynn, 181 Penn. St. 457 114 In re Metropolitan Park Commissioners, petitioners, 209 Mass. 381 . . 164 In re Voting Machine, 19 R. I. 729 141 Jaquith v. Wellesley, 171 Mass. 138 100 Jeffrey Manufacturing Co. v. Blagg, 235 U. S. 571 184 Jones v. Loring, L. & R. El. Cases, 36 38, 219 Kansas v. Ziebold, 123 U. S. 623 204 Keller v. Robertson, 27 Mich. 116 67 Kelly v. Adams, 183 111. 193 157 Kelso v. Wright, 110 Iowa, 560 158 Keogh v. Alderman of Holyoke, 156 Mass. 403 134 12 CASES CITED. Keogh v. Holyoke, 156 Mass. 403 Kimball v. Til ton, R. & R. 315 . Kinneen v. Wells, 144 Mass. 497 Kirk v. Rhoades, 46 Cal. 398 Lampasas v. Bell, 180 U. S. 276 Larcom v. Olin, 160 Mass. 102 . Lamed v. Wheeler, 140 Mass. 390 Locke v. Lexington, 122 Mass. 290 Lothrop, petitioner Mass. Elec. Cases (L. & R.) , 49 Louisville & Nashville Railroad v. Finn, 235 U. S. 571 Luce v. Board of Examiners, 153 Mass. 108 Luce v. Parsons, 192 Mass. 8 Lynch v. Chase, 55 Kans. 367 . Lynch v. Malley, 215 111. 574 . . Mallett v. North Carolina, 181 U. S. 589 Marchant v. Pennsylvania Railroad, 153 U. S. 380 Mason v. State, 58 Ohio St. 30 . Mather v. Brown, L. R. 1 C. P. D. 596 May v. Wood, 172 Mass. 11, 15 Mayor of Somerville v. Justices of the Police Court McGibbons v. Walden, L. & R. 289 . McGlue v. County Commissioners, 255 Mass. 59 McPherson v. Secretary of State, 146 U. S. 1 Miner v. Olin, 159 Mass. 487 Minor v. Happersett, 21 Wall. 162 . Moneyweight Scale Co. v. McBride, 199 Mass. 503 Monks v. Jackson, L. R. 1 C. P. D. 683 Montana Co. v. St. Louis Mining & Milling Co., 152 U Moore v. Booth, 1910, House Document 259 Moore v. Strickling, 46 W. Va. 515 . Morgan, petitioner, Mass. Election Cases (L. & R Moyer v. Van De Vanter, 12 Wash. 377 Mulchinock v. Jenkins, L. & R. 319 . Myers v. Anderson, 238 U. S. 368 Niblack v. Walls, 2 Hinds, sec. 891 . Nichols v. Nichols, 136 Mass. 256 . Norris v. Handley, 42d Congress, Smith, p. 68 Northampton Bridge Case, 116 Mass. 442 Ocampo v. United States, 234 U. S. 91 . O'Connell v. Mathews, 177 Mass. 518 63, 68, 92 O'Donnell v. Pollock, 170 Mass. 441 O'Driscoll v. Lynn & Boston R.R., 180 Mass. 187 Old Colony Railroad v. Fall River, 147 Mass. 455 Oliver v. Washington Mills, 11 Allen, 268 Opinion of the Justices, 7 Mass. 523 Opinion of the Justices, 10 Gray, 613 Opinion of the Justices, 117 Mass. 599 Opinion of the Justices, 136 Mass. 583 Opinion of the Justice, 138 Mass. 601 Opinion of the Justices, 142 Mass. 601 Opinion of the Justices, 157 Mass. 595 Opinion of the Justices, 178 Mass. 605 Opinion of the Justices, 201 Mass. 609 , 220 Mass. 393 ,85 106 114 S. 160 134 PAGE 176 21, 26, 39 100, 169, 203 62 184 134 169 117 170 184 117 64, 176 202 141 209 209 203 98 103 211 21, 24, 25 190, 211 169 102 210 176 98 209 68, 2-19 203 114, 115 106 21 210 84 153 83 164 135, 157 162. 168, 209 159, 218 64 107 117 207 206 169, 173 111, 116 25 208 172 172 138 164 CASES CITED. 13 PAGE Paine, Elections, c. 17 106 Parker v. State, 133 Ind. 178 180 Peabody v. School Committee of Boston, 115 Mass. 383 ... . 117, 161 Pearsons v. Runlett, 110 Mass. 118 T . . .133,184 People v. Ammenwerth, 197 N. Y. 340 176 People v. Carlock, 198 111. 150 188 People v. Coler, 173 N. Y. 103 203 People v. Hartwell, 12 Mich. 508 128 People v. Kilduff, 15 111. 492 61 People v. Kipley, 171 111. 44 206 People v. Neil, 91 Cal. 465 104 People v. Peck, 11 Wend. 604 128 People v. Shaw, 133 N. Y. 493 157 People v. Wilson, 62 N. Y. 186 128 People v. Wood, 148 N. Y. 142 97, 98, 128, 135 Perry v. Hull, 180 Mass. 547 135 Pettes v. Commonwealth, 126 Mass. 242 103 Pevey v. Aylward, 205 Mass. 102 200 Prescotttf. Crossman, El. Cases (1853 Ed.), 303 67,83 Price v. Lush, 10 Mont. 61 98 Prince v. Skellin, 71 Me. 361 ....... ^ .. . 203 Putnam v. Langley, 133 Mass. 204 Ill Rail & River Coal Co. v. Industrial Commission of Ohio, 236 U. S. 338 . 211 Ransom v. Black, 25 Vioom, 446 . 105 Ray v. Ashland, 221 Mass. 223 63, 66, 67, 218 Rea v. Aldermen of Everett, 217 Mass. 427 176, 200 Red River Valley Bank v. Craig, 181 U. S. 548 184 Regina v. Brittain, 3 Cox C. C. 76 107 Regina v. Miller, 1 Australian Jus. 156 . . 98 Regina v. Parkinson, L. R. 3 Q. B. 11 . 98 Renado v. Lummus, 205 Mass. 155 206 Rex v. Cumberland, 1 M. E. S. 190 . . 134 Rex v. Kent, 14 East, 395 134 Rex v. Westmoreland, 1 Wels. 138 134 Rice v. James, 193 Mass. 458 64 Rice v. Welch, Mass. L. & R. 128 22 Riley v. Aldrich, 1904 House 38, 68, 219 Rounds v. Smart, 71 Maine, 380 106 Rutter v. White, 204 Mass. 59 200 Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371 . 210 Sewall v. Jones, 9 Pick. 412 159 Shepard v. Sears, Mass. Election Cases (L. & R.) 30 . . . 37, 68, 117, 219 Sherrill v. O'Brien, 188 N. Y. 185 192 Simons v. People, 119 111. 617 106 Spoiza v. German Savings Bank, 192 N. Y. 8 205 Stackpole v. Hallahan, 16 Mont. 40 98 Stanley v. Mauley, 35 Ind. 275 . 62 State v. Campbell, 48 Ohio St. 435 187 State v. Doherty, 16 Wash. 382 . 128 State v. Douglas, 7 Iowa, 413 104, 203 State v. Eagan, 115 Wis. 417 63,157 State v. Goetze, 22 Wis. 363 128 State v. Hawkins, 44 Ohio St. 98 202 State d. Lewis, 51 Conn. 113 202 14 CASES CITED. PAGE State v. Markham, 160 Wis. 431 ... . 206 State v. Marshall, 45 N. H. 281 103, 104 State v. Mason, 14 La. Ann.' 505 84 State v. Moore, 3 Dutcher, 105 104 State v. Moores, 56 Neb. 1 . . ... 204 State v. Pierce, 163 Wis. 615 211 State v. Smith, 14 Wis. 497 ' 206 State v. Thompson, 91 Minn. 279 204 State j). Tweed, 3 Dutcher, 111 104 State v. Van Beek, 87 Iowa, 569 206 State v. Weatherill, 125 Minn. 336 188 Stimson v. Boardmon, L. & R. 171 . 83, 84 Stockbridge v. Mixer, 215 Mass. 415 206 Stone v. Bean, 15 Gray, 42 . 180 Stone v. Charlestown, 114 Mass. 214 169 Stone v. Smith, 159 Mass. 413 209 Stoughton School District v. Atherton, 12 Met. 105 Ill Strong, petitioner, 20 Pick. 484 37, 114, 115, 127, 218 Sullivan v. Allen, Mass. Election Cases (L. & R.) 99 114 Supervisors of Du Page County v. People, 65 111. 360 128 Supervisors of Houghton County v. Secretary of State, 92 Mich. 638 . 180 Swan v. Justices of the Superior Court, 222 Mass. 542 170 Taft v. Adams, 3 Gray, 126 202 Tandy v. Lavery, 194 111. 372 157 Taunton v. County of Bristol, 213 Mass. 222 159 Tax Commissioner v. Putnam, 227 Mass. 522 208 Taylor v. Beckham, 178 U. S. 548 209 Taylor v. Carr, 125 Tenn. 235 .203 Tehan v. Justices of the Municipal Court, 191 Mass. 92 . . . . 211 The King v. Severn & Wye Railway, 2 B. & Aid. 646 134 Torrey v. Millbury, 21 Pick. 64 159 Tucker v. Fisk, 154 Mass. 574 199 Union Pacific Railroad v. Hall, 91 U. S. 343 134 United States v. Cruikshank, 92 U. S. 542 103, 210 United States v. Waddell, 112 U. S. 76 206 Van Winkle v. Crabtree, 34 Ore. 462 157 Voorhees v. Arnold, 108 Iowa, 77 158 Wade ». Smith, 213 Mass. 34 215 Wales v. Belcher, 3 Pick. 508 201 Walker v. Sauvinet, 92 U. S. 90 ■ . 209 Warren v. Mayor & Aldermen of Charlestown, 2 Gray, 84 . . 134, 169, 210 Washburn v. Phillips, 2 Met. 296 211 Welch v. Fox, 205 Mass. 113 211 Wellington, petitioner, 16 Pick. 87 133, 176, 1S4 Wheeler v. Carter, 180 Mass. 382 .. 134 Whittam v. Zahorik, 91 Iowa, 23 . 157 Williamson v. Lane, 52 Texas, 335 . 202 Woodward v. Sarsons, L. R. 10 C. P. 733 37, 114, 218 Worcester Color Co. v. Henry Wood's Sons Co., 209 Mass. 105 . . . 204 Young v. Blaisdell, 138 Mass. 344 202, 206 Young v. Duncan, 218 Mass. 346 208 MASSACHUSETTS ELECTION CASES, 1903-1922 House — 1903. Committee on Elections. — Messrs. J. Franklin Batchelder of Haverhill, chairman; Robert Rogerson of Mansfield, Edmund C. Shepardson of Athol, Thomas E. Begley of Holyoke, clerk, Daniel J. Donnelly of Boston, Dwight T. Lane of Dighton and James R. Entwistle of Fram- ingham. Richard Newell v. Samuel F. Coffin. House Document, No. 1121. Feb. 16, 1903. Report by Messrs. Rogerson, Lane, Entwistle, Begley and Donnelly; Messrs. Batchelder, chairman, and Shepardson dissenting. Recount of Votes. — The mere closeness of the vote does not in and of itself justify a recount by the House of Representatives. Same. — A change in the vote of one part of a district by a recount, in the absence of evidence of fraud or mistake, cannot be used to discredit the accuracy of the count of election officials in other parts of the district. Same. — Where the vote in the district is close and a recount has been refused by the registrars of voters on account of a formal defect in the petition for a re- count, though the petition was signed by the requisite number of voters, filed within the time required by law, and notice that the recount would be held had been sent to the petitioner by the registrars; the House of Representatives will recount the vote. (This in the minority report and the one accepted by the House, a recount being ordered.) The petition referred to the committee in this case, for its action, is as follows: — To the Honorable House of Representatives of the Commonwealth of Massachusetts, in General Court assembled. The undersigned petitioner, Richard Newell of West Newbury, in the Second Essex Representative District, respectfully represents that he was a candidate for representative to the General Court at the last annual ejection, held Nov. 4, 1902, for the Second Essex Representative District; that Samuel F. Coffin of West Newbury was also a candidate for the same office; that said Coffin was declared elected by a plurality of four votes; that your peti- tioner asked for a recount by the Board of Registrars in the city of Newbury- port, the town of Salisbury and the town of Merrimac (owing to an alleged informality in the petition for a recount, the registrars in the city of Newbury- 16 MASSACHUSETTS ELECTION CASES — 1903. port ruled that they could not act on the petition) ; that in the town of Salis- bury the petition was granted, and your petitioner gained one vote which was originally counted as a blank; that in the town of Merrimac the recount was refused, on account of alleged informality in the petition. And your petitioner, believing that a recount of the votes cast in the Second Essex Representative District would change the result of the election as declared, duly notified the city and town clerks of the district of his intention to contest the election of Samuel F. Coffin, as provided in section 266 of chapter 11 of the Revised Laws, and respectfully requests that your honorable body may order a recount of the votes cast for Representative to the General Court on November 4 last, as provided in section 266. chapter 11 of the Revised Laws, that the true result may be known; and, if any change is found, that the record may be amended in conformity with the true result; and, if so found, that your petitioner should be declared elected. Richard Newell. The following statement of facts is agreed upon by all the members of the committee on Elections: — The Second Essex Representative District comprises the towns of Salisbury, Merrimac and West Newbury and Ward 6 of the city of Newbury port. On Nov. 4, 1902, the petitioner, Richard Newell of West Newbury, was a candidate for election to the House of Repre- sentatives from the said Second Representative District. The vote in said district for Representative for the Republican, Dem- ocratic and Socialist candidates, as returned by the election officers, was as follows : — Newell (R.). Coffin (D.). Bailey (S.). Newburyport, Ward 6 . . . West Newbury .... 212 148 104 96 101 202 99 162 61 65 10 13 Total 560 564 149 — i Mr. Newell, within three days of the date of the State election (the time allowed by statute), filed with the town clerks of Merri- mac and of Salisbury, and with the city clerk of Newburyport, petitions asking for a recount of votes cast for representative in their respective towns, and in Ward 6 of Newburyport. Mr. Newell was duly notified in writing, as the statute requires, that the several boards of registrars would give him a recount NEWELL 0. COFFIN. HOUSE, 1903. 17 of the ballots cast on Nov. 4, 1902, for representative in the Second Essex Representative District for their respective towns, and in Newburyport for Ward 6 of said city. On Friday evening, Nov. 7, 1902, the time appointed by the board of registrars of Newburyport for a recount of votes for representative cast in Ward 6 of Newburyport for the Second Essex Representative District, both parties being represented, the said board of registrars refused to recount the votes, upon objection being raised by counsel for Mr. Coffin, for the reason that the petition was defective. The following is a certified copy of the petition filed with the board of registrars of New- buryport. To the Honoarable Board of Registrars of the City of Newburyport. Gentlemen: — The undersigned, legal voters in the Second Essex Repre- sentative District, respectfully petition your honorable board to make a recount of the votes cast for representative to the General Court in the sixth ward of your city, on the fourth day of November, A.D. 1902, at the annual State election, for the reason that we believe that the return of the votes made by the election officers in said ward for the office of Representative to the General Court may be erroneous, and thereby affect the result of the election as returned. Richard Newell, Main Street, West Newbury. Henry T. Bailey, Main Street, West Newbury. Walter B. Hopkinson, Spring Lane, Newburyport. Somerby N. Noyes, West Newbury. E. N. Chan, West Newbury. Joseph S. Noyes, West Newbury. Joseph O. Noyes, West Newbury. Herbert N. Carleton, West Newbury. Geo. H. Bailey, West Newbury. Robert S. Brown, West Newbury. Essex, ss. Nov. 6, 1902. Personally appeared Richard Newell, and made oath in due form that the above statement by him subscribed is true. Before me, George H. Stevens, (Seal.) Justice of the Peace. True copy of petition. Attest. George H. Stevens, City Clerk. On Saturday evening, Nov. 8, 1902, the time appointed by the board of registrars of the town, of Salisbury for a recount of the votes for representative for the Second Essex Representative 18 MASSACHUSETTS ELECTION CASES — 1903. District, cast in Salisbury, both parties being represented and no objection being raised, a recount was had, in which the petitioner gained one vote. This vote was originally counted as a blank, but upon the recount it was counted for Mr. Newell without ob- jection from either party. The following is a certified copy of the petition filed with the Board of Registrars of Salisbury : — Commonwealth of Massachusetts. Essex, ss. To the Honorable Board of Registrars of the Town of Salisbury. * We, the undersigned legal voters in the Second Essex Representative Dis- trict, respectfully petition your honorable board to make a recount of the votes cast on Tuesday, Nov. 4, A.D. 1902, in your town for the office of repre- sentative to the General Court, for the Second Essex Representative District, for the reason that we believe that the returns made by the election officers of that vote may be erroneous, and, if so, might change the result of the election as returned Richard Newell, West Newbury. J. Q. A. Pettengill, Salisbury. Perkins Merrill, Salisbury. Geo. A. McLucas, Salisbury. S. W. Weare, Salisbury. R. B. Currier, Salisbury. J. S. Merrill, Salisbury. Wm. Henry French, Salisbury. George A. Dow, Salisbury. O. F. Files, Salisbury. C. B. Frost, Salisbury. Commonwealth of Massachusetts. Essex, ss. Salisbury, Nov. 7, 1902. Then personally appeared Richard Newell, and made oath that the fore- going statement is true. Before me, Wm. H. Greenleaf, Justice of the Peace. A true copy. Attest. Wm. H. Greenleaf, (Seal.) Town Clerk of Salisbury. On Monday evening, Nov. 10, 1902, the time appointed by the board of registrars of Merrimac for a recount of the votes for representative for the Second Essex Representative District, cast in Merrimac, both parties being represented, the said board of registrars refused to recount the votes, upon objection being NEWELL V. COFFIN. HOUSE, 1903. 19 made by counsel for Mr. Coffin, for the reason "that the petition is not sufficient, under the statutes, to authorize the registrars to make the recount." The following is a certified copy of the petition filed with the board of registrars of Merrimac : — ■ Commonwealth of Massachusetts. Essex, ss. To the Honorable Board of Registrars of the Town of Merrimac. Gentlemen: — We, the undersigned, legal voters in the Second Essex Representative District, respectfully petition your honorable board to make a recount of the votes cast for the office of representative to the General Court at the annual election held on Tuesday, Nov. 4, A.D. 1902, in your town, for the reason that we believe that the returns made by the election officers of that vote may be erroneous, and, if so, might change the result of the election as returned. Richard Newell, West Newbury. Frank E. Walker, Merrimac, Mass. Chas. A. Lancaster, Merrimac, Mass. Harland G. Little, Merrimac, Mass. Charles H. Judkinp, Merrimac, Mass. Fred B. Judkins, Merrimac, Mass. Fred A. Loud, Merrimac, Mass. J. Henry Ollis, Merrimac, Mass. D. M. Means, Merrimac, Mass. D. W. Gould, Merrimac, Mass. Chas. E. Welch, Merrimac, Mass. Commonwealth of Massachusetts. Essex, ss. Then personally appeared Richard Newell, and made oath that the fore- going petition by him subscribed is true. Before me, Bailey Sargent, Justice of the Peace. Received at 10 o'clock a.m., Friday, Nov. 7, 1902. Bailey Sargent, Town Clerk. A true copy. Attest. Bailey Sargent, (Seal.) Town Clerk, Merrimac, Mass. In West Newbury, where the petitioner was one of the select- men, and as such acted as an election officer, there was no re- count asked for or had. Mr. Newell testified before the committee that he was satis- fied with the correctness of the count in West Newbury, as re- 20 MASSACHUSETTS ELECTION CASES — 1903. turned by the election officers, and also of the recount in Salisbury, but had no objection to a recount by the committee of the votes cast in these towns if the committee granted his petition. The petitioner expressly stated that he did not allege any fraud or illegal action on the part of any of the election officers in said district, nor was there any evidence of such fraud or il- legality, nor of any mistake or informality on the part of the election officers, except as appears from the recount in Salisbury. As the returns to the Secretary of State now stand, Mr. Newell has 561, Mr. Coffin 564, and Mr. Bailey 149 votes. Mr. Newell duly notified the city and town clerks of the dis- trict, as provided in section 266 of chapter 11 of the Revised Laws, of his intention to contest the election of Samuel F. Coffin. Report of the Majority of the Committee. The committee on Elections, to whom was referred the peti- tion of Richard Newell of West Newbury for a recount of the votes cast for representative in the Second Essex Representative District, submit the following report: — The committee gave a hearing to the parties, at which the petitioner appeared pro se, the sitting member being represented by counsel. The petitioner contends that he should be given a recount: — 1. Because of the closeness of the vote, there being but three votes between the petitioner and the sitting member. 2. Because, in the recount which was had in Salisbury, the petitioner gained one vote over the sitting member. 3. Because the petitioner has been deprived of a recount in Ward 6 of the city of Newburyport and in the town of Merrimac by reason of the decision of the boards of registrars of Newbury- port and Merrimac that the petitions filed by him with the city clerk of Newburyport and the town clerk of Merrimac were not in conformity with chapter 11, section 267 of the Revised Laws. The first of these contentions may be disposed of very shortly, it being the unanimous opinion of the committee that mere close- ness of vote does not in and of itself justify a recount by the House of Representatives, ■ — ■ a rule which has repeatedly been followed by former committees, and endorsed by former Houses. See Burt v. Babbitt, Mass. E. C, L. & R. 174-175; Austin v. Sweet, Mass. E. C, L. & R. 189-190. As to the second ground relied upon by the petitioner, the NEWELL V. COFFIN. HOUSE, 1903. 21 fact that the recount in Salisbury differed from the original count, the petitioner gaining one vote over the sitting member by said recount, cannot be used to discredit the accuracy of the count of the election officers in other parts of the district; in other words, it does not follow that, because there was a mistake in the count of the election officers in Salisbury, there were also mistakes in Newburyport or Merrimac. In the absence of evi- dence to the contrary, the presumption is that the count of the election officers is correct {McGibbons v. Walden, L. & R. 289- 291); and the better rule is that "a recount of a portion of the district by the properly constituted tribunal, in the absence of any allegation tending in the slightest degree to throw suspicion upon the other portions of the district, affords no reasonable ground for this House to permit the recounting of the balance of the district." Kimball v. Tilton, L. &. R. 315-318; Collins v. Cogswell, L. & R. 390. The third and main contention of the petitioner is that inas- much as he made an honest but unsuccessful attempt to secure a recount by the registrars of voters in Ward 6 in the city of Newburyport and in the town of Merrimac, — unsuccessful because of his ignorance of or mistake in the law, — it now becomes the duty of this House to impose upon your committee the task of recounting the votes in the Second Essex Representative District. Revised Laws, chapter 11, section 267, sets forth in clear and explicit language the conditions upon which recounts by the registrars of voters shall be granted. With these condi- tions the petitioner did not comply, as appears from the copies of the petitions which are made a part of the statement of facts agreed upon by all the members of the committee, and he was therefore refused a recount except in Salisbury, where no ob- jection was raised. In the opinion of the committee, the action taken by the registrars in this matter was correct; and, even were it otherwise, we do not conceive it to be within the province of a committee on elections to review the actions of other boards or tribunals. See McGibbons v. Walden, supra, Mulchinock v. Jenkins, L. & R. 319. Still less is it the duty of this committee to relieve candidates from the consequences of their own errors. For these reasons, the majority of your committee are of the opinion that to grant a recount in the present case would be to place a premium upon carelessness, and to establish a precedent not in line with the decisions of former committees on elections. The committee therefore recommend that the petitioner have leave to withdraw. 22 MASSACHUSETTS ELECTION CASES — 1903. Minority Report. The committee on Elections of the House, to whom the peti- tion of Richard Newell, who contests the seat of Samuel F. Coffin, was referred, report "leave to withdraw," with two dis- senting members of the committee. The dissenting members of the committee respectfully submit the following minority report, in which they set forth their reasons for dissenting from the opinion of the majority of the committee, and also report recom- mending the adoption of a resolution to request the committee to recount the votes cast in the Second Essex Representative District. Upon an examination of the election cases which have been before the Legislature since 1853, it appears that there is not one like the present case. Therefore we have at the start no precedent to follow. The majority of the committee seem to base their decision upon the principle laid down in the case of Rice v. Welch (L. & R. Election Cases, 128), which is that, in order to justify the committee in going behind the returns of the election officers, there must be some "satisfactory preliminary proofs of such substantial facts or well-founded causes of suspicion as would in- duce strong conviction that fraud or mistake, prejudicial to the contestant, might appear upon such examination;" and also from the principle, with which the minority fully agree, that the committee should not recount when the only reason alleged is that the vote is close. If this were all there was in this case, the minority of the committee would without any hesitation have joined with the majority in reporting "leave to withdraw;" but we think that this is not a case of mere closeness of votes, and that it does not belong in that class of cases which hold that the petitioner must allege fraud or mistake, and show some "satisfactory preliminary proof of such facts." Previous to 1886 there was no provision for the recount of votes in towns by the boards of registrars or selectmen. At that time (1886) the Legislature passed a law, which is almost the same as the present law, giving a right of recount upon the petition of ten or more voters if filed within six days. The present case comes under sections 266 and 267 of chapter 11 of the Revised Laws. The first paragraph of section 267 (the only part of said section which concerns this case) is as follows: — NEWELL V. COFFIN. HOUSE, 1903. 23 If, on or before five o'clock on the third day next succeeding the day of an election in a ward of a city or in a town, ten or more voters of such ward or town shall sign, adding thereto their respective residences on the first day of May of that year, swear to and file with the city or town clerk, or in Boston with the election commissioners, a statement that they have reason to believe and do believe that the records, or copies of records, made by the election of- ficers of certain precincts in such ward or town, or in case of a town not voting by precincts, by the election officers of such town, are erroneous, specifying wherein they deem them to be in error, and that they believe a recount of the ballots cast in such precincts or town will affect the election of one or more candidates voted for at such election, specifying the candidates, or will affect the decision of a question voted upon at such election, specifying the question, the city or town clerk shall forthwith transmit such statement and the enve- lopes containing the ballots, sealed, to the registrars of voters, who shall, without unnecessary delay, open the envelopes, recount the ballots and deter- mine the questions raised; but upon a recount of votes for town officers in a town in which the selectmen are members of the board of registrars of voters, the recount shall be made by the moderator, who shall have all the powers and perform all the duties conferred or imposed by this section upon registrars of voters. It will be noticed that the section provided that, in order to obtain a recount by a board of registrars, the petitioner must get ten voters of the town or ward in which he seeks a recount to sign and swear to the petition. In the present case Mr. Newell drew up his petition upon the advice of a person " whom he thought to be a responsible party." It appears by the certified copies of the petitions presented to the committee that each petition was signed by ten voters of the Second Essex Repre- sentative District, and in the cases of Merrimac and Salisbury, by ten voters of each town. It also appears, by said certified copies of the petitions for recounts, that Mr. Newell made oath to all of the petitions, and that in the case of the city of New- buryport the city clerk took Mr. Newell's oath to the petition filed for a recount of the votes cast for representative in Ward 6 of Newburyport. In Salisbury the town clerk took Mr. Newell's oath to the petition filed for a recount of the votes cast for repre- sentative in that town; and in Merrimac the town clerk took Mr. Newell's oath to the petition filed for a recount of the votes cast for representative in Merrimac. The petitions were all duly filed, and the several boards of registrars duly notified Mr. Newell that they would give him a recount of the votes cast in their respective places, and informed him of the time and place when and where said recount would take place. The town clerk of Merrimac is a member of the board of registrars of that town; the town clerk of Salisbury is a member of the board of 24 MASSACHUSETTS ELECTION CASES — 1903. registrars of Salisbury; and the city clerk of Newburyport is a member of the board of registrars of the city of Newburyport. At the time and place appointed, the board of registrars of Newburyport refused to recount the votes cast in Ward 6 of Newburyport, for the reason that the petition was defective, upon objection being raised by counsel for Mr. Coffin, although they had notified Mr. Newell that they would recount said votes. At Salisbury, at the time and place appointed, Mr. Coffin being represented by counsel, a recount was had of the votes cast in Salisbury, without any objection being raised on the part of any one, and the petitioner gained one vote. This vote was originally counted as a blank, the voter having made a mark instead of a cross; and it was the unanimous opinion of all present that it ought to have been counted for Mr. Newell. The petitions for a recount to the board of registrars of Salisbury and Merrimac were alike in all essential respects. At Merrimac, at the time and place appointed for a recount, upon objection being raised by counsel for Mr. Coffin, the board of registrars refused to recount the votes cast in Merrimac, after having notified Mr. Newell that they would recount the votes, for the reason "that the petition is not sufficient, under the statutes, to authorize the registrars to make the recount." Mr. Newell duly notified the city and town clerks of his intention to contest the election of Samuel F. Coffin, as provided in section 266 of chapter 11 of the Revised Laws. The question is simply this: whether or not Mr. Newell, having done what, in his judgment, acting upon the advice of some one whom he deemed a responsible person, was all that was necessary; having filed his petitions within the proper time; having received notices that he was to have his recounts; having had a recount in part of the district (to wit, in Salisbury, upon a petition which is identical with that filed in Merrimac in all essential respects), which showed a material change; and having complied with the law as laid down in section 266 of chapter 11 of the Revised Laws, should have a recount of the votes cast in said district, by the committee on Elections, in order to deter- mine who is entitled to the seat now held by Mr. Coffin. As has been stated, there is not a similar case to be found in the election cases. The nearest one in point is the case of McGibbons v. Walden, decided in 1877 (L. & R. Election Cases, 289), before the time of giving recounts to towns. This case, NEWELL V. COFFIN. HOUSE, 1903. 25 which arose in the city of Lynn, might, at a first glance, be considered as identical with the one in question. In McGibbons v. Walden, a petition for a recount was filed with the mayor and aldermen, and they refused to recount, upon the advice of the city solicitor, upon grounds which the committee thought were technical. In commenting upon this the majority of the committee say: — It would undoubtedly have been much better, so far as the committee are able to judge, for the mayor and aldermen to have granted the petition, and not have inquired too closely into the form of the petition, thus following the practice of nearly all, if not all, the cities in the Commonwealth in such matters. The committee, however, did not consider that it was a part of its duty to supply the omission of other bodies, or avenge or redress the grievances which parties may have sustained at their hand, considered simply as such. In this case the votes were actually recounted four times by the election officers before the petition was made to the mayor and aldermen; and the case differs in this respect from the one before us, and also in the fact that the mayor and aldermen did not first send notices to the petitioner that they would recount the votes, and then, after the time allowed by law for filing petitions for recounts had expired, refuse to recount. Recount was refused in the case just cited, and a report "leave to with- draw" made, with three dissenting members. From an opinion given by the justices of the Supreme Judicial Court (quoted below), it would seem that a liberal construction should be given to the requirements of the law in this respect. 136 Mass. 583. (1883.) If a statement in writing is filed within three days of an election by ten or more voters of a ward, and it is accepted and acted upon by the board of aldermen, who make a recount, and the city clerk transmits this amended return to the Secretary of the Commonwealth, it may well be doubted whether it would be competent for the Governor and Council to investigate the regularity of the action of the board of aldermen and city clerk, and reject the return upon the ground of some formal defect existing in the original statement in writing. But, however this may be, we are of opinion that the statement in this case was sufficient. The statute contemplates that the statement is to be made by plain people, and technical and narrow rules of construction 26 MASSACHUSETTS ELECTION CASES — 1903. ought not to be applied to it. It is sufficient if it specifies with reasonable clearness in what respect the returns of the ward officers are supposed to be erroneous. The statement, of which a copy is given in the third question, states that the returns of the ward officers of the votes cast are believed to be erroneous in regard to the officers of sheriff and district attorney. Everybody would understand this to mean that there was believed to be a miscount of the votes for these officers. It is impossible in the nature of things to specify the particular errors in detail, and we are of opinion that the state- ment referred to was sufficient, and required the aldermen to make a recount. Having had a recount in part of the district, the petitioner is entitled to a recount in the whole district, as the recount, so far as it was had, changed the original count. In the case of Haskell v. Closson (L. & R. Election Cases, 233), a recount was granted by the House of Representatives even after a recount of a part of the district had been im- properly taken. Upon a recount being had, the petitioner was found to be elected. In the case of Kimball v. Tilton (L. & R. Election Cases, 315) by the returns of the ward officers of Haverhill, Kimball was elected. By a recount of Haverhill, the election was given to Tilton. The petitioner then asked for and received a recount by the committee on Elections of the whole district. Claflin v. Wood (L. & R. Election Cases, 353) was another case where part of the district had been recounted; and upon a recount by the committee on Elections there was a change in the vote of part of the district. "It seemed to the committee not improbable that a mistake might have been made, and especially as the majority in the whole district was so small, they decided to recount the votes of the district." The result of the recount in this case was that the petitioner received more votes than the seated member, and the committee reported a resolution declaring that the petitioner was elected; but the resolution was rejected by the House. Thus we see that in several cases the recounts, where there has been a partial recount, have resulted in a plurality vote for the petitioner. In conclusion, we declare that we are utterly unable to find a case in which the committee of the House of Representatives has refused to recount the votes of a representative district where the petitioner had asked for recounts in the various places of NEWELL V. COFFIN. HOUSE, 1903. 27 his district, had been notified that the recounts would be granted, and had then been thrown out on technical grounds. It has been established by the opinion of the Supreme Court, quoted above, that the statute contemplates "that the statement is to be made by plain people, and technical and narrow rules of construction ought not to be applied to it." It will be admitted by all that it is, in a sense, immaterial, so far as the merits of this case are concerned, whether the district is represented by Mr. Coffin or Mr. Newell, as both are men of the highest integrity; but it seems to the minority of the committee that the voters of the district should have a right to know who is entitled to the seat now held by Mr. Coffin, and there is no way to determine this except by re- counting the ballots. This, as the minority view the matter, is the only course which would result in justice to all the parties concerned; and there- fore they recommend the passing of the following resolution: — Resolved, That the committee on Elections be and hereby is instructed to send for and recount the ballots cast for representatives to the General Court from the Second Essex Representative District at the election held in said district Nov. 4, 1902, and to report the result of such recount to the House of Representatives . [Report of committee negatived, February 18, and resolve, instructing committee to recount the ballots, substituted. — House Journal, p. 405. After recount, resolution declaring Newell elected adopted March 2. — House Journal, p. 482.] 28 MASSACHUSETTS ELECTION CASES — 1904. House — 1904. Committee on Elections. — Messrs. Frank Sieberlich of Boston, chairman; William H. J. Hayes of Lowell, Peter F. Ward of Fitchburg, Horace R. Drinkwater of Braintree, clerk, Alfred S. Hall of Revere, Otto Mueller of Lawrence and Edward E. Clark of Cambridge. Herbert S. Riley v. Henry M. Aldrich. House Document, No. 343. Jan. 25, 1902. Report by all the committee. Marking of Official Ballot. — Ballots where cross marks in the squares opposite the names of the candidates were not so clearly defined as the rest of the ballot, in absence of evidence of erasure, will be counted. Same. — Ballot marked with two oblique strokes in the square' opposite the name of the candidate, forming a rude letter Y, will be counted. Same. — Ballot marked with two oblique strokes in the square opposite the name of the candidate, which, if they had intersected would have formed a letter Y, will be counted. , Same. — Ballot where intersection of cross marks was upon lower line of square, opposite the name of the candidate, a blank space being next below, will be counted. Same. — Ballots with single stroke in the square will be counted. Same. — Ballots with two single strokes in the square, like the figure 11, will be counted. Same. — Ballot with caret, or inverted V, in the square will be counted. Same. — Ballots with cross mark between residence and political designation will be counted. Same. — Ballot where pencil had injured paper in marking, mark being in the proper place, will be counted. Same. — A ballot having crosses in the squares opposite the names of the two Democratic candidates, and another cross in the space above the heading "Rep- resentative to General Court." the cross above the space was ignored and the ballot counted. Same. — Ballot with mark in square opposite the name of the candidate, re- sembling an inverted Y, will be counted. Same. — Ballot with cross in the square opposite the name of the candidate, marked over with the figure 2, will be counted. Voter, Intention of. — If the intention of the voter can be determined from an inspection of the ballot, that intention must prevail. In other words, if it be reasonably clear for whom the voter intended to vote, the ballot must be so counted. The committee on Elections, to whom was referred the petition of Herbert S. Riley "that he may be declared duly elected member of the House of Representatives from the Twenty- eighth Middlesex district" in place of the present sitting mem- ber, submits the following report: — The above petition was received Jan. 8, 1904, referred to the committee on the same date, and a hearing given January 12. RILEY V. ALDRICH. HOUSE, 1904. 29 The above district is composed of the city of Woburn and the town of Reading, and is entitled to two representatives. The petitioner alleged that — At an election, held Nov. 3, 1903, in the city of Woburn and the town of Reading, comprising the Twenty-eighth Middlesex Representative District, your petitioner was one of the candidates for the General Court from said district. The return of the votes cast at said election, made by the election officers in said city of Woburn and said town of Reading, gave your petitioner 1,385 votes, and Henry M. Aldrich 1,374 votes. Upon a recount of the votes cast for representative to the General Court in said district by the registrars of voters in said city of Woburn and in said town of Reading the vote was declared to be as follows: Henry M. Aldrich, 1,383 votes, and Herbert S. Riley, 1,382 votes. At said recount a sufficient number of votes were wrongly counted for said Henry M. Aldrich, and a sufficient number of votes were wrongly counted as blanks which should have been counted for said Herbert S. Riley, to have given your petitioner a majority of the votes cast and have elected him. Wherefore your petitioner prays that such action may be taken as may be necessary so that he may be declared elected as representative to the General Court from said Twenty-eighth Middlesex Representative District, and be seated in the place of said Henry M. Aldrich. Herbert S. Riley. It is provided by the Constitution of the Commonwealth, chapter 1, section III, Article X, that "The House of Repre- sentatives shall be the judge of the returns, elections and quali- fications of its own members;" and as evidence was received showing that the decision of the registrars of Woburn upon cer- tain ballots had been in direct opposition to the decision of the registrars of Reading upon the same type of ballot, the commit- tee decided that the proper course to pursue was to see the ballots and determine the question for itself. A count of all the ballots was made, during which count all informal ballots were thrown out, to be considered separately. Of the properly marked ballots, it was found that Woburn had given Henry M. Aldrich 1,251 votes and Herbert S. Riley 838, while Reading had given said Aldrich 122 votes and said Riley 534. The ballots which had been put to one side as informal, num- bering thirty-one, were next considered, and were counted as follows : — Nos. 1, 10, 18 were ballots where cross marks in the squares opposite the names of Aldrich and Riley were not so clearly de- 30 MASSACHUSETTS ELECTION CASES — 1904. fined as the rest of the ballot, but without evidence of erasure. Aldrich, 2; Riley, 1. No. 19 was a ballot consisting of two oblique strokes in square, forming a rude letter Y. Riley, 1. No. 14 was a ballot consisting of two oblique strokes in square, which, if they had intersected, would have formed a letter Y. Riley, 1. Nos. 17, 30, 31 were ballots where intersections of the cross marks were just above the lower line of square, but so close as to appear to be on the line, except upon close scrutiny. Aldrich, 1; Riley, 2. No. 12 was a ballot where intersection of cross marks was upon lower line of square, a blank space being next below name of candidate. Riley, 1. Nos. 2, 3, 4, 20, 28 were ballots with a single stroke in square. Aldrich, 1; Riley, 4. Nos. 7, 27 were ballots with two parallel strokes in square, like figure 11. Riley, 2. Nos. 8, 16, 24, 25, 26 were ballots which upon inspection were so clearly erasures that neither side cared to enter claim. No. 29 was a ballot with caret, or inverted V, in the square. Riley, 1. Nos. 9, 15 were ballots with cross in square opposite name of Aldrich, and an erasure in square opposite name of Riley. Counted Aldrich, 2. Nos. 5, 11 were ballots with cross between residence and polit- ical designation. Aldrich, 2. No. 21 was a ballot where pencil had injured paper in marking, mark being in proper place. Riley, 1. No. 23 was a ballot having crosses in squares opposite names of Aldrich and Flint, the two Democratic candidates, and another cross in the space above the heading "Representative to General Court." Following the precedent established in Morgan et al., peti- tioners, House, 1896, the cross made above the space was ignored and the ballot counted Aldrich 1. No. 6 was a ballot with mark in square, somewhat resembling an inverted Y. Aldrich, 1. No. 13 was a ballot containing in the square a cross which had been marked over with a figure 2. Aldrich, 1. No. 22 was a ballot with single oblique stroke between resi- dence and political designation of Herbert S. Riley, no other mark appearing anywhere upon the ballot. Not counted, as RILEY V. ALDRICH. HOUSE, 1904. 31 the fact that the petitioner had a plurality of two votes without it made it unnecessary for the committee to take action re- garding this ballot. This count of the informal ballots shows Aldrich to have received 11 votes and Riley 14, making the total vote in the district for each candidate to appear as follows : — ■ Aldrich. Riley. Woburn Reading . . . . . . . Informal ballots 1,251 122 11 838 534 14 Total 1,384 1,386 The principle upon which the committee based its decisions regarding the different ballots is a principle which has become well established in this Commonwealth, and briefly is as follows: "If the intention of the voter can be determined from an in- spection of the ballot, that intention must prevail." In other words, if it be reasonably clear for whom the voter intended to vote, the ballot must be so counted. The committee, therefore, finds that at an election held Nov. 3, 1903, in the city of Woburn and the town of Reading, Henry M. Aldrich received 1,384 votes and Herbert S. Riley received 1,386 votes. They therefore unanimously recommend that the petitioner be declared duly elected representative from the Twenty-eighth Middlesex Representative District. [The report of the committee was accepted. 1904, p. 125.] House Journal, 32 MASSACHUSETTS ELECTION CASES — 1907. House — 1907. Committee on Elections. — Messrs. William M. Dean of Taunton, chairman; David P. Keefe of Fall River, Ernest H. Pierce of Revere, Melvin S. Nash of Hanover, clerk, Samuel H. Holman of Attleboro, William F. Murray, Jr., of Boston and Andrew F. Healy of Holyoke. George M. Lambert v. Herbert M. Forristall. House Document, No. 884. Jan. 22, 1907. Report by all the committee. Recount by House of Representatives. — The House of Representatives will exer- cise the right to recount the ballots upon satisfactory preliminary proof of such substantial facts or well-grounded causes of suspicion as would induce strong conviction that fraud or mistake prejudicial to the contestant might appear upon such examination. The committee on Elections, to whom was referred the peti- tion of George M. Lambert "that he may be declared elected a representative to the General Court from the Fifteenth Essex District" in the place of Herbert M. Forristall, the present sitting member, submits the following report: — The above petition was received Jan. 4, 1907, and referred to the committee on the same date; and on Jan. 8, 1907, it was ordered by the House of Representatives that the committee on Elections be authorized to send for persons and papers in the consideration of the foregoing petition. Pursuant to the afore- said order Joseph W. Atwill, the city clerk of Lynn; Joseph W. Haines, Philip Smith, Joseph D. A. Healey, the registrars of voters of Lynn; Henry A. Parker, the town clerk of Saugus; J. Wesley Paul, Daniel S. Bannon and Peter J. Flaherty, the board of registrars of Saugus; the petitioner, Mr. George M. Lambert, and the respondent, Mr. Herbert M. Forristall, were duly summoned to appear before the committee at a hearing which was accordingly held Jan. 15, 1907. Mr. Forristall was represented by Benjamin N. Johnson, Esq., of Lynn, and Mr. Lambert was represented by Henry C. Atwill, Esq., of Lynn, and afterward by H. Heustis Newton, Esq., of Everett. The Fifteenth Essex Representative District is composed of Ward 6 in the city of Lynn, and the town of Saugus, and is a double district. The petitioner alleged "that on the sixth day of November, LAMBERT V. FORRISTALL. HOUSE, 1907. 33 1906, and for more than a year preceding said sixth day of November, he was an inhabitant and a qualified voter of Ward 6 in the city of Lynn, in said county and Commonwealth, and that he has since continued and now is an inhabitant and qualified voter of said ward; that at the annual State election held on said sixth day of November, 1906, in said Ward 6 of the city of Lynn, and the town of Saugus, comprising the Fifteenth Essex Representative District, your petitioner was one of the candidates for representative to the General Court from said district; that the return of the votes cast at said election made by the election officers in said ward and town of Saugus gave your petitioner 1,403 votes, Herbert M. Forristall 1,409 votes, James A. Halliday 1,368 votes, and Philip A. Kiely 1,573 votes, and upon a recount of the votes so cast at said election in said district by the regis- trars of voters in said city of Lynn and the registrars of voters in said town of Saugus the vote was declared to be as follows: Herbert M. Forristall 1,402, James A. Halliday 1,368, Philip A. Kiely 1,577 and George M. Lambert 1,400; that at said recount of the votes in Saugus a ballot with a mark in the square at the right of the name of the petitioner, which clearly indicated an intention of the voter to vote for your petitioner, was thrown out and not counted by the said registrar of voters in said town of Saugus, and that two ballots where a cross had been placed in the square at the side of the name of said Philip A. Kiely and erased by the voter and a cross marked in the square at the side of the name of your petitioner, which clearly indicated in each case an intention of the voter to vote for your petitioner, were thrown out and not counted by said registrars in the town of Saugus, and that other votes were wrongly counted as blanks, by the said registrars of voters in the city of Lynn and the said registrars of voters in the town of Saugus, which should have been counted for your petitioner; and that said ballots so thrown and counted as blanks, counted for your petitioner, would give him a plurality of votes over the said Herbert M. Forristall and would elect him." At the aforesaid hearing the committee proceeded to hear the evidence relative to the aforesaid allegations, and it appearing that those ballots where the choice of the voter could not be determined, and where a voter had marked more names than there were persons to be elected, had not been separated from the others and marked "defective" in the manner prescribed by statute, and there being such satisfactory preliminary proof of such substantial facts and well-grounded causes of suspicion as 34 MASSACHUSETTS ELECTION CASES 1907. would induce strong conviction that mistake, prejudicial to the petitioner, might appear upon examination, the committee voted to proceed to count the ballots. A count of all the ballots was made, and during the recount any ballot objected to by the petitioner or the respondent was laid aside as an informal ballot to be acted upon by the com- mittee after hearing the arguments of counsel upon the same. The result of the recount is as follows : — Forristall. Lambert. Saugus . . 1,041 369 949 454 Total i ■ 1,410 1,403 Informal or defective ballots, 8. No action was taken by the committee on these ballots, for the reason that Mr. Forristall's plurality is sufficient to elect, in spite of any decision that might be reached concerning them, and counsel for petitioner and respondent agreed to the same. The committee, therefore, finds that at an election held Nov. 6, 1906, in Ward 6 of the city of Lynn, and in the town of Saugus, Herbert M. Forristall received 1,410 votes and George M. Lambert received 1,403. They therefore unanimously recommend that the petitioner have leave to withdraw. [The report of the committee was accepted. — House Journal, p. 209.] MOORE V. BOOTH. HOUSE, 1910. 35 House — 1910. Committee on Elections. — Messrs. Clarence A. Warren of Chelsea, chair- man; Amos T. Saunders of Clinton, Charles C. Mellen of Braintree, David T. Montague of Boston, clerk, Timothy F. Callahan of Boston, David Mancovitz of Boston and David B. Shaw of Boston. Fred Moore v. William Booth. House Document, No. 259. Jan. 18, 1910. Report by all the committee. Recount by House of Representatives. — Where there is evidence that a mistake has been made in a recount in determining the result of a vote for representative the House of Representatives will recount the ballots. Same. — The House of Representatives will not recount the ballots in a dis- trict, where the petitioner has not availed himself of his statutory rights in respect to a recount, unless he was prevented from doing so by the fraud of his opponent or by some cause beyond his control. Marking of Official Ballot. — A ballot where the lines of intersection run in opposite directions but intersect in the square opposite the name of a candidate, although the cross is not complete and one line does not pass the point of inter- section, will be counted for that candidate. Same. — Where the ballot was marked with a perfect cross throughout, except for one candidate, in the square opposite whose name appeared a line like the second stroke of a cross, around and upon a part of which appeared a circle, the ballot will not be counted for such candidate, as such an unusual mark will be deemed to have some significance and might have been intended for a mutilation of the cross which had been made, and therefor the intention of the voter is not clear. The committee on Elections, to whom was referred the peti- tion of Fred Moore that he may be declared a duly elected representative from the Ninth Bristol Representative District, report as follows : — The petition referred to the committee is as follows: — To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General Court assembled. The undersigned petitioner, a citizen of Fall River in this Commonwealth, respectfully represents that at an election held Nov. 2, 1909, in Wards 1 and 2 in Fall River, and in the town of Westport, comprising the Ninth Bristol Representative District, the petitioner was one of the candidates for the office of representative to the General Court from said district. The count of votes by the election officers cast at said election from the said district gave to the petitioner, Fred Moore, 1,587, to William Gifford, 1,720, to William Biltcliffe 1,116, and to William Booth 1,579 votes. Upon a recount of Wards 1 and 2 in Fall River by the registrars of voters for the city of Fall River upon the petition of William Booth, the vote was 36 MASSACHUSETTS ELECTION CASES — 1910. declared to be 1,523 votes for William Booth and 1,526 votes for the peti- tioner, giving the said William Booth a lead of one vote, over the petitioner, Fred Moore, in the entire district without recounting the votes cast in the town of Westport. The said William Booth took out a petition for a recount in the town of Westport, and represented to the petitioner that a recount will be held in said town, but the petition was never returned, and no recount was held. The registrars of voters thereupon declared the said William Gifford and William Booth to be the successful candidates, basing their decision upon the recount in Wards 1 and 2 in Fall River, and the original vote in the town of Westport, and certified to the same. In said recount in Wards 1 and 2 in Fall River there were a sufficient number of votes wrongly counted for said William Booth, and a sufficient number of votes wrongly counted as blank by said registrars of voters, which in each case should have been counted for the petitioner, to have given him a majority of votes and elected him. At said recount the said petitioner, Fred Moore, duly excepted to the wrongly counted ballots, alleging that three of the ballots counted as blank should have been counted for the petitioner, in that said ballots contained crosses to the right of the name of the petitioner, but not in the square; and the said petitioner further excepted to ballots counted for Booth, which ballots were mutilated or spoiled. Said ballots are found in Ward 1, Pre- cinct A, blocks 8 and 13; Ward 1, Precinct B, blocks 9, 10 and 11; Ward 2, Precinct A, block 7; and in Ward 2, Precinct B, block 17. Wherefore your petitioner prays that such action may be taken as may be necessary so that he may be declared elected as representative to the General Court from said Ninth Bristol Representative District, and be seated in place of said William Booth. Fred Moore. The Ninth Bristol Representative District is composed of Wards 1 and 2 of Fall River, and the town of Westport, and is entitled to two representatives. At the State election, held Nov. 2, 1909, William Biltcliffe, Democrat; William Booth, Republican; William H. Gifford, 3d, Democrat; and Fred Moore, Republican, were candidates for representative, and each received, according to the returns made to the Secretary of State, after a recount had been held of the votes cast in Wards 1 and 2 of Fall River, the number of votes appearing under their respective names. Biltcliffe. Booth. Gifford. Moore. Fall River, Wards 1 and 2 . Westport 1,099 18 1,523 61 1,502 214 1,526 57 Total 1,117 1,584 1,716 1,583 MOORE V. BOOTH. HOUSE, 1910. 37 William Booth and William H. Gifford were declared elected, and a certificate of election was issued to each of them. The sitting member was apparently elected by a majority of one vote, and the committee found, upon the evidence offered, the truth of which was admitted by Booth, that at the recount of the votes cast in Wards 1 and 2 of Fall River, the registrars of voters had refused to count for Moore a sufficient number of votes upon which a cross appeared opposite his name, but between his name and the square provided therefor, to have given him a majority. The committee were of opinion that a mistake had probably been made in determining the result of the vote for representative in Wards 1 and 2 of Fall River by the registrars of voters, and ruled that the petitioner was en- titled to have the votes cast in said wards recounted, which the committee proceeded to do in the presence of the parties and their respective counsel. During the progress of the recount by the committee, ballots to the number of 12 were set aside and not then counted at the request of one party or the other. Exclusive of the 12 ques- tioned ballots, the vote in said wards, as between the petitioner and the sitting member, is Booth 1,522 and Moore 1,521, which is the total found by the committee and by each of the parties, who have agreed with the committee that those figures are correct. It is the opinion of the committee that none of the 12 ques- tioned ballots should be rejected in whole or in part for any technical non-compliance with statute requirements, and that if from an examination of the face of the entire ballot the intent of the voter can be fairly ascertained, effect should be given to that intent and the vote counted in accordance therewith. Strong, Petitioner, 20 Pick. 484; Flanders v. Roberts, 182 Mass. 524; Brewster v. Sherman, 195 Mass. 222; Woodward v. S arsons, R. L. 10, C. P. 733; Shepard v. Sears, Mass. Election Cases (Ed. 1885-1902), p. 30; Adams v. Moore, Mass. Election Cases (Ed. 1885-1902), p. 79. Counsel for the seated member claimed that the decisions sustaining this doctrine were all rendered prior to the passage of the present election law (chapter 560 of the Acts of the year 1907), and that the construction of the later act differed from that of the law which was in force at the time of those decisions. This act was not the enactment of new law, but, as its title states, " An Act to codify the laws relating to caucuses 38 MASSACHUSETTS ELECTION CASES — 1910. and elections," and sections, 231, 260 and 271 are exactly the same in substance and phraseology, so far as they affect matters now in question, as the earlier statutes, which were in force when the later of the foregoing decisions were rendered. The committee have accordingly counted for the petitioner three crosses opposite his name but between his name and the square, where the entire ballot was marked in the same way. Jones v. Loring, Mass. Election Cases (Ed. 1885-1902), p. 36; Adams v. Moore, ubi supra; Riley v. ; Aldrich, Mass House of Representatives, 1904. Two votes were counted for Moore and two for Booth which were marked for them by an oblique line at an angle of about 45 degrees in the square opposite the name of the candidate, where each ballot was marked in the same manner throughout or in so far as they were marked at all. In each case it is per- fectly clear that the mark was intended to express the choice of the voter, and should be counted accordingly. Riley v. Aldrich, ubi supra; Brewster v. Sherman, 195 Mass. 222. On two ballots the voters had made a cross opposite the names of more candidates for representative than were to be elected, but one of the marks had been clearly obliterated on each ballot, and the cross opposite the name of the petitioner on each ballot was counted for him. On another questioned ballot the intersection of the lines of the cross was clearly in the square provided therefor, and opposite the name of Moore, and was counted for him. On the eleventh questioned ballot the lines ran in opposite directions and intersected opposite the name of Moore and in the square provided therefor. The cross is not complete, as one line reached but did not pass the point of intersection. The lines appear to have been intended for a cross, but to have been hastily made and therefore somewhat imperfectly, but never- theless clearly expressing an intent to vote for the petitioner, and we have accordingly counted it for him. The twelfth questioned ballot was marked with a perfect cross throughout, except for Mr. Booth, in the square opposite whose name appeared a line like the second stroke of a cross, around and upon a part of which appeared a circle. Certainly this unusual mark had some peculiar significance; the circle may have been intended for a mutilation of a part of the cross which had been made. Where the ballot was marked perfectly throughout the committee cannot say that the intent of the voter, as expressed by this mark, is plain, and we therefore can- MOORE V. BOOTH. HOUSE, 1910. 39 not count the mark for Booth. The perfect cross opposite the name of Moore was counted for him without objection. Of the 12 questioned ballots, the committee have counted two votes for Booth and ten for Moore, which makes a total vote of the district for Booth and Moore, as determined by us, as follows: — Booth. Moore. Fall River, Wards 1 and 2 (agreed) Fall River, Wards 1 and 2 (disputed) 1,522 2 1,521 10 Fall River total Westport ..... 1,524 61 1,531 57 Total in district .... , .... 1,585 1,588 A recount of the votes cast in Westport was denied by the committee on the ground that the petitioner had not sought to take advantage of his statutory right to have the votes re- counted by the proper officers of the town, in accordance with the provisions of the Acts of 1907, chapter 560, section 300. It seems clear that the committee on Elections ought not to recount the vote of a town where the petitioner has not availed himself of his statutory rights, unless he was prevented from doing so by the fraud of his opponent or by some cause beyond his con- trol. Kimball v. Tilton, Loring & Russell, Mass. Election Cases (Ed. 1885-1902), p. 315. From the foregoing tabulation of the votes cast, it appears that the petitioner, Fred Moore, received a plurality of three votes over the seated member, William Booth, and the commit- tee therefore recommend the adoption of the following reso- lution: — Resolved, That Fred Moore of Fall River was duly elected one of the repre- sentatives to the General Court from the Ninth Bristol Representative Dis- trict, at the election held Nov. 2, 1909, and that he is entitled to and is hereby given the seat now occupied by William Booth. [Resolve seating Moore reported Jan. 18, adopted Jan. 29, 1910. House Journal, p. 108.] 40 MASSACHUSETTS ELECTION CASES - — 1910. House — 1910. Committee on Elections. — Messrs. Clarence A. Warren of Chelsea, chair- man; Amos T. Saunders of Clinton, Charles C. Mellen of Braintree, David T. Montague of Boston, clerk, Timothy F. Callahan of Boston, David Mancovitz of Boston and David B. Shaw of Boston. Charles E. Dennett v. Lynde Sullivan. House Document, No. 434. Jan. 21, 1910. Report by all the committee. Marking of Official Ballot. — Ballots marked with what may be termed double crosses in the square opposite the name of a candidate will be counted. Same. — Ballot marked with a diagonal mark in the square opposite the name of a candidate, where the rest of the ballot is properly marked with crosses, will not be counted as a vote. Same. — Ballots marked with diagonal marks in the square opposite the name of the candidate will be counted where the rest of the ballot is similarly marked. Same. — Check marks will be counted as votes where the rest of the ballot is similarly marked. Same. — Ballot marked with a cross in the space between the name of the candidate and the name of the political designation will be counted. Recount by the House of Representatives. — Where a candidate was declared elected by one vote at a recount, the closeness of the vote; evidence that the recount was conducted in an irregular manner; that the tally sheets were loosely handled; that the result of the tabulation was prematurely announced; that outsiders were permitted to verify the tabulation and had access to the tally sheets thereby affording an opportunity for fraud and mistake, — ■ taken collectively will warrant the House of Representatives in recounting the ballots. The committee on Elections, to whom was referred the petition of Charles E. Dennett for a recount of the votes cast for himself and for Mr. Lynde Sullivan for representative in the Twenty- third Middlesex District, having heard the parties, present the following report: — The said district comprises twelve precincts in the city of Maiden, entitled to three representatives. No recount is asked for as to two of the three. The contest is between Dennett and Sullivan. On election day, Nov. 2, 1909, as declared by the proper officers, Charles E. Dennett had 2,322 votes and Lynde Sullivan had 2,318, Mr. Dennett winning by 4 votes, and he was duly declared elected as a representative from said district. A recount was asked for and had by the board of registrars for said district in said city of Maiden, and as a result thereof the registrars reported that Mr. Sullivan had 2,323 votes and Mr. Dennett and 2,322 votes, and Mr. Sullivan was declared duly DENNETT V. SULLIVAN. HOUSE, 1910. 41 elected as representative for said district by 1 vote, and a cer- tificate of election was issued to him in due form. The petitioner claimed in his petition and specifications that he was entitled to a recount for the following reasons: — 1. Because he was credited with less and Mr. Sullivan with more votes than they were respectively entitled to. 2. That the recount of the votes by the board of registrars of Maiden was improperly conducted, and said board's report was incorrect. 3. That he had reason to believe that a recount would show that he, Charles E. Dennett, received more votes than Mr. Sullivan, and was therefore entitled to be declared and seated as the representative from said district for the year 1910. At the hearing there was evidence tending to show that on election day Mr. Dennett was elected by 4 votes; that upon a recount by the registrars in Maiden Mr. Dennett lost and Mr. Sullivan was declared elected by 1 vote; that at the recount in Maiden the registrars made public declaration of the count of each block of votes as counted, a block consisting usually of 50 votes, but sometimes of a less number; that the contestants were present at the recount, and kept account of the votes as declared as the recount proceeded; that when the physical counting of all the ballots ended, about 5.30 o'clock in the afternoon, it was generally talked and discussed in the room where the recount took place that it was a tie vote, but no public declaration of the total vote for each candidate was made by the registrars; that tally sheets were kept of the results of the count of each block of votes, there being 111 of such sheets, and from these tally sheets the tabulation was to be made to determine the total vote for each candidate, and notice was given that the tabulation was to be made by the registrars at 11 o'clock the next day; that in fact the tabulation was made the same night of the recount by the chairman and clerk of the registrars, in the absence of the other members of the board and without notice to the contestants, and the count then made from the tally sheets was verified by the janitor; that the ballots after being counted were sealed up about 5.30 p.m. on the day of the recount, and remained so up to the time of this hearing; that the tally sheets were placed in an envelope un- sealed, put into the safe and the latter locked; that these tally sheets were thereafter removed from the safe about 7 o'clock the same evening, and the tabulation made as before set forth; that one other person had access to the safe besides the citv 42 MASSACHUSETTS ELECTION CASES — 1910. clerk; that it was known about the city the evening of the day of the recount that Mr. Sullivan had received 1 more vote than Mr. Dennett; that the formal tabulation and record was made the next day, but no public declaration of the result of the re- count was then made other than what the tabulation itself then showed. No evidence was introduced of any actual fraud or intentional mistake on the part of the chairman of the board of registrars or the city clerk in what they did. The foregoing covers substantially the evidence considered by the committee. The closeness of the vote at the recount; the irregular manner of conducting the recount, as above set forth; the premature or unusual giving out or permitting to be given out of the result of the tabulation; the loose way in which the tally sheets were handled; the permitting of an outsider to verify the tabulation; the access of still another person to the tally sheets; the oppor- tunity afforded whereby the change of one mark on a tally sheet might change the result of the election; and the making of the tabulation in the absence of the other members of the board of registrars, and without notice to the petitioner, — taken together, while bringing the case close to the line of what will or will not justify a recount, yet on the whole satisfied the committee that there were substantial and good reasons for believing that a mistake had or might have been made in ascertaining the result of the vote for representative sufficiently large to change the result of the election. In addition, it appeared that the only possible way to verify the figures on the tally sheets from which the tabulation was made was to recount the ballots. Your committee, therefore, for the foregoing reasons, decided upon a recount and recounted the ballots. The result of the recount by your committee was as follows: of the undisputed ballots, Mr. Dennett had 2,312 votes and Mr. Sullivan 2,312. There were in addition 15 disputed ballots, and these for con- venience are numbered from 1 to 15, inclusive. In dealing with the disputed ballots your committee followed the rule as laid down in numerous cases, namely: — If the intent of the voter can be fairly determined, effect shall be given to that intent, and the vote counted in accordance there- with. See Flanders v. Roberts, 182 Mass. 525. Where it appears hereinafter that the committee counted bal- DENNETT V. SULLIVAN. HOUSE, 1910. 43 lots for or against Dennett or Sullivan, it means that the com- mittee decided that such was the intent of the voter. It should be kept in mind in dealing with the disputed ballots that the voter had a right to vote for three candidates on the ballot for representative, so that it will appear in some cases that Dennett and Sullivan each were entitled to a vote on the same ballot. The disputed ballots are further divided into classes a, b, c, d, e and/. (a) Nos. 1, 2, 3, 4 and 15 were ballots where the voter made what may be called double crosses in the squares at the right of the names of candidates. Nos. 1, 2, 3 and 15 were counted for Sullivan. Nos. 4 and 15 were counted for Dennett. (b) No. 5 was a ballot where the voter made a diagonal mark (/) in the square at the right of Dennett's name and a cross (X) in the square at the right of Sullivan's name. The vote for Dennett was disallowed and the one for Sullivan counted. This decision seems to be fully warranted by law. Brewster v. Sherman, 195 Mass. 222. (c) No. 6 was a ballot on which appeared a cross in the square opposite the name of Dennett, and a very irregular lot of marks in the square at the right of the name of Sullivan. There were two other crosses in proper places on other parts of the ballot. Your committee could not determine what the intention of the voter was in respect to Sullivan, and therefore disallowed it as a vote for him. They counted this ballot for Dennett. (d) Nos. 7, 12 and 14 are what might be termed erasures, and were so decided by the committee. On No. 7 proper crosses were against the names of both Dennett and Sullivan, and were counted one for each. In explanation, it may be said that the erasure was against the name of another candidate for repre- sentative, and if the mark had not been an erasure, the vote of all the representatives would have been thrown out, because four crosses would appear where but three were permissible. No. 12 is a ballot where a cross was in the square against the name of Sullivan, and what appeared to be an erasure of a cross against the name of Dennett. The ballot was counted for Sullivan. The ballot was not counted for Dennett. On No. 14 there was a faint cross against the name of Dennett, but the appearance of it indicated an erasure, and the committee de- cided that it was an erasure. The committee were aided in so deciding by reason of similar marks or erasures in two other 44 MASSACHUSETTS ELECTION CASES — 1910. places on the ballot, and by the seven other good plain crosses against the names of candidates other than representatives. (e) Nos. 8, 9 and 11 were ballots where there were straight marks, and No. 13 had check marks, in the proper squares. There were no crosses on any of the four ballots. No. 8 was counted for Sullivan; No. 9 was counted for Sullivan; No. 11 was counted for Dennett; No. 13 was counted for Dennett and Sullivan. (f) No. 10 was a ballot with a cross in the space between the name of Dennett and the political designation. The committee was clear that the voter intended to vote for Dennett, and it was counted for him. The count, therefore, of the 15 disputed ballots resulted as follows: Sullivan had 10; Dennett had 8. These votes, added to the undisputed figures, make the total vote of Sullivan 2,312 + 10 = 2,322, and Dennett 2,312 + 8=2,320, and the committee so find, and that Mr. Lynde Sullivan was duly elected by a plurality of 2 votes, and is entitled to his seat as representative for the Twenty-third Middlesex District for the year 1910. The committee recommend that the petitioner have leave to withdraw. [The report of the committee was accepted. — House Journal, p. 164.] House — 1911. Committee on Elections. — Messrs. Roger Wolcott of Milton, chairman; Charles N. Edgell of Gardner, John H. Coggswell of Lynn, Dennis A. O'Neil of Boston, William A. O'Hearn of North Adams and John C. Mahoney of Worcester. Ignatius J. Carlton v. Louis R. Kiernan. [Jan. 26, 1911. Report by Roger Wolcott, chairman, leave to withdraw on request of petitioner. Report not printed. — House Journal, p. 274.] PRATT V. SARGENT. HOUSE, 1912. 45 House — 1912. Committee on Elections. — Messrs. Clarence W. Hobbs, Jr., of Worcester, chairman; Ernest A. Witt of Springfield, Harry M. Eames of Andover, Frank Mtjlveny of Fall River, clerk, Edward T. Morse of East Bridge- water, William J. Murray of Boston, and James F. Griffin of Boston. Almon L. Pratt v. Edgar E. Sargent. House Document, No. 1607. Jan. 22, 1912. Report by the chairman for the committee. Notice of Meeting, Irregularities in, will not avoid Election. — Where the notice of the meeting for the election of State officers was served in a town only four days before the election, instead of the seven days as required by statute, the validity of the election of a representative is not necessarily affected. If the voters are actually notified the purpose of the law is accomplished. The committee on Elections, to whom was referred the peti- tion of Almon L. Pratt that he may be declared the duly elected member of the House of Representatives from the Fourth Hampshire Representative District, have duly considered the same and report as follows: — The petitioner seeks to have the vote cast in the town of Ware, which is within said district, declared invalid, because the selectmen failed to issue and serve the warrant calling the meeting for the election at least seven days before the day pre- scribed by law for the holding thereof, as required by Acts of 1907, chapter 560, section 246. The warrant was in fact issued and served only four days prior to the election. In case of a town meeting such an error would unquestionably render the meeting invalid, but the meeting for the election of State officers stands on a very different footing. A town meeting is held under authority of the warrant calling it, and unless the warrant for the meeting is properly issued and served, there is no legal authority for holding the meeting. The meeting for the election of State officers is not held under authority of the warrant, but by virtue of a general law prescribing the time, place and purposes thereof. The warrant serves merely to notify the voters. If the voters are actually notified, the purpose of the law is fulfilled. Therefore a failure to issue and serve the warrant within the time required by law does not necessarily invalidate the election. Commonwealth v. Smith, 132 Mass. 289; 46 MASSACHUSETTS ELECTION CASES — 1912. Hillman v. Flanders, before the committee on Elections of the House of Representatives in the year 1880, cited in Mass. Contested Election Cases, p. 338. In the present case it was not claimed that the failure to issue and serve the warrant as required by law prevented a full, free and fair vote. According to testimony at the hearing, the vote cast was not below the normal, 85 per cent of the registered vote having been polled. No claim of fraud or collusion was made, or that the failure to issue the warrant properly operated to the peculiar disadvantage of the contestant. The committee can therefore see no good reason why the voters of the town of Ware should be deprived of their votes through circum- stances entirely beyond their control. The committee report that the petitioner have leave to with- draw. [The report of the committee was accepted. — House Journal, p. 298.] CLARKSON V. VINSON. SENATE, 1912. 47 Senate — 1912. Special Committee. — Hon. Harry N. Stearns, chairman; Hon. Calvin Coolidge and Hon. James P. Timilty. Robert P. Clarkson v. Thomas M. Vinson. Senate Document, No. 434. March 27, 1912. Report by all the committee. Domicile, Proof of. — Personal absence for a while does not necessarily change one's domicile, and personal presence in a place for a somewhat prolonged period in absence of intention does not necessarily establish domicile there. The Special Committee, to whom was referred the petition of Robert P. Clarkson that he be declared elected senator from the Eighth Suffolk District, having met the petitioner and the sitting senator, Thomas M. Vinson, and heard their evidence, submit the following report: — The respondent, Thomas M. Vinson, testified that he had lived in the Eighth Suffolk District all his life; that his father and grandfather before him lived in that part of the city of Boston, formerly Dorchester; that he lived with his mother at 31 Bradshaw Street in the district up to August, 1910, when he was married and moved with his wife to 7 Bicknell Street, also in the district; that he lived there about one year; that he did not move to 7 Bicknell Street with the intention of making it his permanent home, and that when he moved there he did not move all his furniture, but left part of it at Bradshaw Street; that when he left the house on Bicknell Street he sent part of his furniture back to Bradshaw Street; that in the spring of 1911 he bought a farm in Winchester, mainly for in- vestment, intending to use this farm during the summer and then to return to Bradshaw Street; that the farmhouse was only adapted for summer use, not having running water or heating apparatus, except stoves in the rooms, or any modern lighting system; that his stay in Winchester was prolonged by reason of the fact that his wife gave birth to a child Oct. 12, 1911, and was ill for three months thereafter; that just as soon as his wife was able, in January, 1912, she was moved to Shawmut Avenue, Boston, to the house of her father, who is a doctor; that during the period covered by the petition the respondent was sometimes at Winchester and sometimes at Bradshaw 48 MASSACHUSETTS ELECTION CASES — 1912. Street; that he had rooms, furniture and clothing at Bradshaw Street; that during the election period he was living for weeks at Bradshaw Street; that he himself spent very little time in Winchester after October, 1911; that he now goes to Winchester as often as he thinks necessary to oversee certain work which is being done there; that his wife has not physically resided at Bicknell Street. The respondent's wife testified that she and her husband were married June 30, 1910; that on August 10 they went to live at 7 Bicknell Street and lived there until the end of May, 1911; that she then went to live at her summer home in Win- chester, where she remained until January, 1912; that she has not been living in Winchester since then; that her baby was born Oct. 12, 1911, and that she was ill three months thereafter; that she insisted on having her baby born in Winchester, and that the respondent is now living in her father's house on Shawmut Avenue. E. W. Longley, auditor for the New England Telephone and Telegraph Company, testified that when the respondent moved to Bicknell Street he had a telephone installed there in his own name, and that after he had gone to Winchester, May 31, 1911, it was removed; that a contract was made with the telephone company to install a telephone in the farmhouse in Winchester July 17, 1911, and bills were rendered for service from October, 1911, to January, 1912; that in the telephone directory the Winchester address was " Thomas M. Vinson, Res. Winchester 326-W." Mr. Longley testified in cross examination that in 1903 the respondent had contracted for a telephone at Bradshaw Street; that this contract was still in force and paid for; and that on Oct. 3, 1910, the list name of this telephone had been changed at the request of the respondent to Mrs. S. W. Vinson. E. O. Childs, register of deeds, Middlesex County, testified that the records show a transfer of fifty-nine and one-quarter acres of land in Winchester from Henry J. Halladay of Newton, to Thomas M. Vinson, which was dated March 22, 1911, and soon after recorded. Fred V. Worcester of Winchester, assessor, testified that Thomas M. Vinson was assessed April 1, 1911, for fifty-nine and one-quarter acres of land valued at $7,975, and that Mr. Vinson, the respondent, was not assessed as a resident of Winchester in April, 1911. Charles H. Herrick of Winchester testified that he never saw the respondent prior to the date of his testimony, and that he CLARKSON V. VINSON. SENATE, 1912. 49 himself lives about half a mile from the farm which the respond- ent bought. Herbert L. Cox testified that he had never seen the respondent. W. L. Thompson testified that he had never seen the respondent, although he had talked with him on the telephone in regard to the installation of electric lights in the district in Winchester in which the Vinson farm was located. George L. Locke testified that he had seen the respondent on the street in Winchester during December, January and February last; that he had first seen him in Winchester during the summer of 1911. Thomas M. Hutchinson testified that he had seen Vinson in town, passing by on the road, and that he lived about half a mile from the place that Mr. Vinson had bought. Albert E. McLellen, letter carrier, testified that the Vinson farm was on his route; that he had delivered letters at the house for four months prior to Feb. 20, 1912; that he recollected only that the name Vinson was on the letters; and that he had only seen Vinson himself once, on Christmas, 1911. C. W. Warner testified that on May 27, 1911, he took two loads of furniture to Winchester and delivered them as ordered by the respondent; that he has also taken some furniture from one house in Dorchester to another house in Dorchester, the location of the houses not being more definitely placed in his mind. W. Walter Marsh testified that he had seen the respondent in Winchester once between June and July, 1911. John F. Morse testified that he lived at the same premises, 7 Bicknell Street, at which the respondent lived with his wife, and that when the respondent was leaving he told him he was going to buy a place in Winchester for investment. W. E. Pring testified that he canvassed for the Winchester Directory, and took names from a house on High Street in Winchester; that in answer to a question by him as to who lived there, he was told by a woman that the respondent lived there. A. D. Randlett, messenger boy, sixteen years of age, said that he went to High Street, Winchester, on Saturday, Feb. 17, 1912, to deliver a letter, and that he was told by the woman who came to the door that Mrs. Vinson did not live there now. The deposition of Mrs. Samuel W. Vinson, 31 Bradshaw Street, Boston, was taken Feb. 24, 1912. She testified that the respondent, her son, was with her a great deal of the time in 50 MASSACHUSETTS ELECTION CASES — 1912. October, November and December, 1911, and that he had furniture, rugs, bric-a-brac and many books and pictures in the house at Bradshaw Street. Upon the evidence, the committee find the following facts : — Mr. Thomas M. Vinson has lived in the district in question for years. In October, 1910, he moved with his wife from his mother's house on Bradshaw Street to 7 Bicknell Street, both houses being in the said district. On March 22, 1911, he bought a farm in Winchester. On May 27, 1911, he moved a part of his furniture from Bicknell Street to Winchester, and part of it to his mother's house on Bradshaw Street. The house at Winchester is without running water, without heat, except stoves, and without modern lighting. Mr Vinson bought the farm in Winchester for an investment. He had a telephone installed in the Winchester house, and had one in the house on Bicknell Street, and still has one at 31 Bradshaw Street, having contracted for it in 1903. In October, 1910, the telephone at Bradshaw Street was listed at Mr. Vinson's request in the name of his mother, Mrs. S. W. Vinson. On Oct. 12, 1911, Mr. Vinson's wife gave birth to a child in the Winchester house, and she was ill there for three months thereafter. Election day was Nov. 7, 1911, and Mr. Vinson was living at Bradshaw Street within the district for several weeks in October, November and December, 1911. The birth of the child in Winchester and Mrs. Vinson's sickness prolonged the stay of Mr. and Mrs. Vinson in Winchester. Mr. Vinson never intended to make Winchester his permanent residence, but he and his wife left the Winchester house as soon after October, 1911, as circum- stances would permit, and Mrs. Vinson in January, 1912, went to the house of her father, who is a doctor. This house is on Shawmut Avenue, Boston, and is not in the district. Upon the law and the evidence, the case seems to resolve itself as follows : — 1. That Mr. Vinson had a legal domicile in the Eighth Suffolk District, unless the evidence shows that he abandoned it and elected to have his domicile in Winchester. 2. That it was never his intention to abandon his domicile in said district, and that he lived in Winchester only temporarily for the summer and fall. 3. That the evidence does not modify this intention not to abandon his domicile in said district and to elect Winchester as his domicile. CLAKKSON V. VINSON. SENATE, 1912. 51 (a) The evidence in regard to the telephones is not inconsistent with such intention and with his acts. (6) The physical condition of the Winchester house confirms in part this intention. (c) The presence of furniture at Bradshaw Street belonging to him is not inconsistent with his expressed intention or with his acts. (d) The length of his stay at Winchester is explained. (e) The testimony of neighbors in Winchester is of very little value, and not inconsistent with the claim that this property in Winchester was a summer home. (/) The petitioner did not introduce any evidence as to where the respondent slept, and we find that he slept both in the Bradshaw Street house and in Winchester. While we make no finding on the request of the petitioner that he be seated in place of the respondent, we have the gravest doubt of his right to the seat, even if we had found that the respondent was not properly seated. We feel that, in case of such a finding, a new election would be the only proper solution. The voters would be deceived if, in this case, the candidate receiving the second highest number of votes should be seated. The committee therefore find that, from the evidence sub- mitted, the petitioner has not proved his case, and we recommend and report that the petitioner have leave to withdraw. [The report of the committee was accepted. — Senate Journal, p. 1013.] 52 MASSACHUSETTS ELECTION CASES — 1913. House — 1913. Committee on Elections. — Messrs. Clarence A. Barnes of Mansfield, chair- man; Joseph Craig of Loweil, William Booth of Fall River, Almon L. Pratt of Belcher town, Charles N. Atwood of Middleborough, Daniel Fitzpatrick of Lawrence and John J. Gallagher of Milton, clerk. Charles H. McGlue v. William A. Fisher. House Document, No. 1947. Feb. 18, 1913. Report by Mr. Gallagher, clerk [This was a petition for the seat held by the respondent for the Fourteenth Essex District. The votes for representatives, for reasons not reported, were counted by the committee, and the sitting member found to have a plurality. The committee thereupon reported leave to withdraw, and the report of the committee was accepted. — House Journal, 1913, p. 573.] NAPHEN V. BRENNAN. HOUSE, 1914. 53 House — 1914. Committee on Elections. — Messrs. William Booth of Fall River, chairman; William W. Kennard of Somerville, Charles N. Atwood of Middle- borough, Cleaveland A. Chandler of East Bridgewater, clerk, Joseph L. Barry of Agawam, James F. Griffin of Boston and Michael H. Cotter of Lynn. William J. Naphen v. Thomas H. Brennan. House Document, No. 2050. Jan. 28, 1914. Report by William Booth, chair- man; Messrs. Barry, Griffin and Cotter dissenting. Recount of Votes. — When the registrars of voters, after a recount of votes cast for representative, refuse or neglect to make the necessary returns and statements of the result of their recount, the House will order the ballots counted in order to ascertain who is elected. To the Honorable House of Representatives. Respectfully represents William J. Naphen of Natick, in the county of Middlesex and the said Commonwealth, that at the annual State election held on Tuesday the fourth day of November, A.D. 1913, for the choice of State and county officers and members of the General Court of said Commonwealth, your petitioner was a candidate for election to the House of Representatives of said General Court for the Sixth Middlesex Representative District, com- prising said town of Natick, duly nominated by the Republican party, and that his name was duly printed on the official ballot used in said election; that one Thomas H. Brennan of said Natick was duly nominated by the Demo- cratic party for the said office of representative for said district, and his name was duly printed on said official ballot; that William O. Cutler, Arthur W. Robinson, Michael H. Sweeney and Jeremiah Cohan were then and are now the duly constituted board of registrars of voters of said Natick. Upon the face of the returns made by the election officers of the various precincts of said town, it appeared that said Thomas H. Brennan received 1,017 votes; that said William J. Naphen received 1,015 votes; and that there were 67 blanks for said office of representative to the General Court. On the sixth day of November, A.D. 1913, a petition signed by more than ten qualified voters of said Natick, praying for a recount of said votes for said office of representative, was duly filed with the town clerk of said Natick. On the eighth day of November, A.D. 1913, said ballots for said office of representative were recounted by said board of registrars of voters. The recount disclosed errors in the original count of one block of ballots. A ballot cast for William J. Naphen had been originally counted for Thomas H. Bren- nan. The correction of this error resulted in William J. Naphen gaining one vote and Thomas H. Brennan losing one vote. Another error was discovered in the original total tabulating sheet. Thomas H. Brennan had been credited on the original total tabulating sheet with one more vote than he was entitled to, as shown by a comparison with both the original and recount tally sheets. 54 MASSACHUSETTS ELECTION CASES — 1914. The correction of this error resulted in the loss of one vote by said Thomas H. Brennan. The finish of the recount showed that as a result of said recount William J. Naphen gained one vote and Thomas H. Brennan lost two votes; that at the completion of said recount said Michael H. Sweeney, chairman of said board of registrars of voters, announced, as the result of said recount, that said Thomas H. Brennan had received 1,015 votes, that said William J. Naphen had received 1,016 votes, and that there were 68 blanks, total 2,099, as appeared by the recount total tabulating sheet, and also appears by the record of the proceedings of said board of registrars of voters, a copy of which record is hereto annexed, marked "A;" that thereupon the ballots were en- closed in their proper envelopes, duly sealed and endorsed, and, together with the total tabulating sheet of said recount, were returned to the town clerk of said Natick, but no statement of their determination of the result of said recount was made, signed and returned therewith by said board of registrars of voters as required by law. On the tenth day of November, A.D. 1913, said board of registrars of voters again met, and a statement prepared by the clerk of said board, certifying that the result of said recount showed that William J. Naphen had received 1,016 votes, and that Thomas H. Brennan had received 1,015 votes for said office of representative to the General Court for the Sixth Middlesex Repre- sentative District, was signed by William O. Cutler and Arthur W. Robinson, members of said board, but said Michael H. Sweeney and Jeremiah Cohan, the other members of said board, neglected and refused to sign said statement and still neglect and refuse to sign the same; that as a result thereof the board of selectmen of said Natick have not issued to your petitioner his certificate of election to said office of representative to the General Court for the Sixth Middlesex Representative District. Wherefore, Your petitioner prays your honorable body that he be declared by your honorable body to be the duly elected representative for the Sixth Middlesex Representative District, in accordance with the facts as set forth in said petition, and as they further appear in the recount total tabulating sheet and in said record of the board of registrars of voters of said Natick. William J. Naphen. (Petition, House Document, No. 314.) Your committee on Elections, to whom was referred the peti- tion (House, No. 314) of William J. Naphen that he be declared duly elected representative from the Sixth Middlesex Repre- sentative District, respectfully report as follows: — That in accordance with the order passed by the House on Jan. 13, 1914, the committee gave three hearings upon the petition and examined and counted the ballots cast in said election. At said hearings and counting the petitioner was present in person and represented by counsel, and Thomas H. Brennan of Natick was also present in person and represented by counsel, said Brennan and the petitioner having been the only candidates NAPHEN V. BRENNAN. HOUSE, 1914. 55 to receive any votes for the said office of representative in said district. During the counting several of said ballots were protested on the ground that they were insufficiently or improperly marked. As to all but three of the ballots your committee was unanimous in its decision. At the request of a minority of the committee, and in ac- cordance with an order of the House, photographic reproductions of these three ballots have been prepared. These ballots were found in original envelopes, marked " Block Fourteen," " Block Twenty-eight" and "Block Thirty," and the photographic reproductions have been marked by their original block numbers for purposes of identification and reference. The ballots found in blocks 14 and 30 were counted by a majority of your committee as votes for the petitioner. The ballot found in block 28 was counted by a majority of your committee as a blank. As a result of the count of the ballots, a majority of your committee reports that the total number of ballots cast for representative in said district was 2,099; that the petitioner, William J. Naphen, had 1,016; that Thomas H. Brennan had 1,015; and that 68 ballots were blanks. A majority of your committee therefore reports the accom- panying resolve. [The resolve declared that the petitioner was duly elected and entitled to the seat, and was adopted by the House Feb. 3, 1914. — House Journal, p. 389.] 56 MASSACHUSETTS ELECTION CASES — 1915. House — 1915. Committee on Elections. — Messrs. Charles E. Stanwood of Needham, chair- man; James T. Bagshaw of Fall River, clerk, Frederick Butler of Lawrence, Albert Holway of Bourne, John Mitchell of Springfield, Michael H. Cotter of Lynn and Maurice F. Flynn of Maiden. George A. Whitney v. Eben S. Cobb. House Document, No. 1666. Feb. 9, 1915. Report by Frederick Butler for the committee; Messrs. Mitchell, Cotter and Flynn dissenting. Recount of Votes. — Where an election for representative was declared to result in a tie vote, the committee considering it probable that a mistake was made in the count, recounted the votes in the district. The committee on Elections, to whom was referred the petition (House, No. 365) of George A. Whitney that he be declared one of the duly elected representatives from the Tenth Worcester Representative District, respectfully report as follows : — That, in accordance with an order passed by the House of Representatives on the twelfth day of January of the current year, the committee gave hearings upon the petition and ex- amined all the ballots cast in said election. At said hearings the petitioner was present in person and was represented by counsel, he being the only one of all the candidates present at the hearings. During the examination of the ballots several of them were protested on the ground that they were insufficiently or improp- erly marked. As to all but one of the ballots your committee was unanimous in its decision. Two ballots have been photo- graphed, viz., one found in block 4 in the town of North- borough, which was counted by a majority of your committee as a blank, and the other ballot, found in block 1 in the town of Berlin, which was counted unanimously by your committee as a ballot for the petitioner. As a result of the examination of the ballots your committee report that their findings indicate that George A. Whitney received the second largest number of votes in the said repre- sentative district, and they therefore recommend that the WHITNEY V. COBB. HOUSE, 1915. 57 petitioner be declared a duly elected member of the House of Representatives from the Tenth Worcester Representative District. [The report of the committee was negatived. — House Journal, p. 296. An order calling for a special election was adopted. — House Journal, p. 315.] 58 MASSACHUSETTS ELECTION CASES — 1920. House — 1920. Committee on Elections. — Messrs. Elihu D. Stone of Boston, chairman; Everett W. Coleman of Orange, William L. Stedman of Methuen, John A. White of North Brookfield, clerk, James A. Torrey of Beverly, James A. Goode of Boston and Tony A. Garofano of Lynn. C. Joseph Harvey v. Charles D. Bradbury. House Document, No. 1269. Feb. 9, 1920. Report by the chairman; Mr. Goode dissenting. Pasters on Official Ballot. — The election laws relating to the use of stickers or pasters were enacted not merely to preserve the purity and secrecy of the ballot, and to curb, in so far as possible, corrupt practices, but also to ascertain and not thwart the popular will honestly expressed. Same. — Election officers should refuse to accept ballots or stickers not in conformity with law; if allowed to be deposited and not counted the voter would be disenfranchised. Same. — Where the paster or sticker is pasted over the name of the opposing candidate the vote will be counted for the substituted name, as the intent to make the substitution is clear. Same. — The use of the name of a party as " Republican" on a paster, though prohibited by statute, will not invalidate an election, in absence of evidence that the result of the election was affected thereby. Same. — The provisions of the statutes relative to the size of type to be used on stickers is directory and not mandatory, and if ballots containing such irregular stickers are once deposited in the ballot box they should be counted. Same. — If irregular stickers are deposited in the ballot box they should be counted, otherwise the voter is disenfranchised. Same, Irregularities in. — The intent of the voter honestly expressed should be the governing rule, unless the statute provides as a penalty for the violation of its provisions that the vote should not be counted. Same. — A voter is not required to ascertain the legality of a sticker or paster which he is allowed by election officials to paste on his ballot and which ballot is deposited by the voter in good faith. Elections, Irregularities in. — The illegal distribution of circulars, etc., within the distance from the polls prohibited by statute will not invalidate an election in absence of evidence showing that the voters were actually influenced thereby, and in the absence of evidence that such distribution was authorized or consented to by the candidate in whose behalf such distribution was conducted. Same. — The House is the judge of the election and qualification of its members. Same. — If the intent of the voter can fairly be determined, effect should be given such intent and the vote counted in accordance therewith. Same. — The House will not disenfranchise voters who have deposited their ballots in good faith unless so directed specifically by statute. The committee on Elections to whom was referred the pe- tition of C. Joseph Harvey praying that he might be allowed to sit in the House of Representatives from the Twenty-first Suffolk District, which district comprises the town of Winthrop, HARVEY V. BRADBURY. HOUSE, 1920. 59 in place of Charles D. Bradbury, the sitting member, has con- sidered the same as well as all the evidence offered by the pe- titioner in support of his petition and all the evidence offered by the sitting member which would in any way affect his in- terest as a member of this House. Both the petitioner and sitting member were represented by learned counsel, and your committee has cause to believe that all facts material to a correct view of the case were made to appear. It is agreed by all concerned, and your committee find it therefore as a fact, that the petitioner, C. Joseph Harvey, received the Republican nomination for representative in the General Court of Massachusetts in the primaries held in the said town of Winthrop on the twenty-third day of September, 1919. In pursuance thereof Harvey's name was duly printed on the ballot, used in the last State election in the said town of Winthrop, as the regular Republican candidate for representative from the said district. It appears that Charles D. Bradbury, the sitting member, who was defeated for renomination in the said primaries by the petitioner, put himself forward, or, as Bradbury insisted on the witness stand, his friends put him forward as a candidate to oppose the election of the said Harvey, the regular Republican nominee for representative. A spirited campaign followed; cards were distributed, letters were sent to the voters of the said town of Winthrop, political advertisements were inserted in the newspapers, and meetings held, on behalf of both Harvey and Bradbury. Prior to the election the said Bradbury or his friends caused stickers to be printed containing the following inscription: — REPRESENTATIVE IN GENERAL COURT Twenty-first Suffolk District Vote for ONE CHARLES D. BRADBURY of winthrop ~— /— — Republican These stickers were distributed to the voters on the day of the election at the voting places inside as well as outside. Many of the said stickers were distributed to the voters in envelopes containing printed directions on the outside as to how to use the sticker. It may be necessary to add that it 60 MASSACHUSETTS ELECTION CASES — 1920. appears from the testimony presented to your committee that some of the friends of Bradbury made inquiry in the office of the Secretary of the Commonwealth as to the legality of the said stickers, where they were informed by Herbert H. Boynton, the First Deputy Secretary of the Commonwealth, that he saw no reason why the said stickers could not be used, or words to that effect. About 2 p.m. on election day Harvey filed with the election officers a protest against the use of the said stickers. The stickers, however, continued to be used. The election resulted in favor of the sitting member, the first count of the ballot showing 1,150 votes for Harvey and 1,328 votes for Bradbury, and the recount showing 1,052 votes for Harvey and 1,314 votes for Bradbury. All of the said votes received by Bradbury were on stickers. Harvey objected to the counting of the Bradbury stickers. The said Bradbury was, nevertheless, de- clared elected by a majority of 262 votes. The result was based upon pure, inflexible, mathematical calculation. A certificate of election was delivered by the clerk of the said town of Winthrop to the said Bradbury, and he qualified as a member of this House. It is alleged by the petitioner that the election of Bradbury was illegal, and he prays, therefore, that he be declared the legally elected representative from the said Twenty-first Suffolk District and be granted a seat in the House of Representatives as representing the said district, substantially for the following reasons: — 1. Because the said stickers used by the said Charles D. Bradbury contained the political designation "Republican," which is prohibited by section 201 of chapter 835 of the Acts of 1913, as amended by chapter 250 of the General Acts of 1917. 2. Because the size of the type which appeared on the said sticker was not in conformity with the requirement of chapter 835, section 261, of the Acts of 1913. 3. Because the stickers, after being attached to the official ballot, thereby became a part of the official ballot; and, as the sticker is attached to the ballot before being marked, it placed in this case two names with the same political designation for the same office upon the ballot in violation of section 258 of chapter 835 of the Acts of 1913, as amended by chapter 250 of the General Acts of 1917. 4. Because the stickers were enclosed in envelopes with printed^matter on the envelopes containing directions or re- HARVEY V. BRADBURY. HOUSE, 1920. 61 quests, thus becoming in law a poster, handbill, placard or circular intended to influence the action of the voters, and which envelopes were exhibited, circulated or distributed within 150 feet of the entrance of the polling places, which is pro- hibited by chapter 835, section 280, of the Acts of 1913. 5. Because many of the stickers were pasted over the name of the said Harvey. (For the purpose of establishing the last contention, counsel for the petitioner moved that the committee inspect and recount the ballots.) Your committee are conscious of the task imposed upon them, and they have therefore considered all the questions involved, as well as all the evidence presented, with the greatest of care. The scope of the petition was widened for the purpose of making it possible for both the petitioner and the sitting member to present any and every evidence that is in any way material for the purpose of establishing their respective contentions. It is, therefore, safe to assume that the petitioner has been given every opportunity to present his case in its entirety for the purpose of being able to sustain the burden of proof which the law imposes upon him. Your committee have considered these principles as funda- mental in coming to a decision in this case: That the statutes governing and guiding elections were enacted for the purpose of facilitating an honest expression of the people's will; that when- ever it is possible to ascertain the true intent of the voters, that intent should prevail; and that no technicality should be allowed to defeat the will of the majority of the people, unless the statute specifically provides, as a penalty for the violation of its provisions, that the votes should not be counted. No doubt such a provision would raise a constitutional question. For it must be borne in mind that our laws relating to elections are enacted not merely to preserve the purity and secrecy of the ballot, and to curb, in so far as possible, corrupt practices, but to ascertain and not to thwart the popular will honestly ex- pressed. Blackmer v. Hildreth, 181 Mass. 29; Election Cases 1853-1885, French v. Bacon, p. 184. Says Judge Cooley, elec- tion statutes ought to be tested with "a leaning to liberality in view of the great public purposes which they accomplish." Constitutional Limitations, p. 177. Thus, in the eyes of the court, paper tinged with blue was regarded as "white" for the purpose of satisfying the require- ment of the statute. People v. Kilduff, 15 111., 492. The words "Republican Ticket" on the ballot were not re- 62 MASSACHUSETTS ELECTION CASES — 1920. garded by the court as a distinguished mark or embellishment within the meaning of the statute, which statute prohibited "distinguished marks or embellishments" to appear on the ballot. Stanley v. Manley, 35 Ind., 275. To take an opposite view would, in the opinion of your com- mittee, do violence to the sacred principles of representative government, — the very foundation of our democracy. In other words, it is the opinion of your committee that effect should be given to the honest intent of the voters, if it is possible to ascertain that intent, without regard to technical rules; and the intent of the voters, honestly expressed, when thus ascer- tained, is to be the governing rule, unless the statute provides, as a penalty for the violation of its provisions, that the votes should not be counted. It is to be observed that the provisions of the statutes relative to the ballot have application chiefly to the election officers in so far as they are susceptible to their control. For it is, or it should be, the duty of the election officers to observe these rules and regulations, in so far as they can control them, for the purpose of safeguarding the integrity of the election. Surely the people have no control over the preparation of the ballot, nor of the stickers; for the ballots as well as the stickers are always furnished on the day of the election by the election officers ap- pointed for that purpose, by independent candidates, or by their friends. The voter in but few instances ever sees these ballots or stickers until he approaches the polls to cast his ballot. It would be absurd to require the voter to ascertain the legality of the ballot which he is allowed by the election officers to paste upon the ballot, and which ballot containing the sticker was deposited by the voter in good faith. Kirk v. Rhoades, 46 Cal. 398. It is or it should be the duty of the warden or the election officers to refuse the acceptance of a ballot or sticker which is not in conformity with the requirements of law, and point out to the voter the legal defect of the same, if any, so that the voter may be able to comply with the requirements of the law and eliminate the irregularities. If allowed to be deposited and not counted, the voter would be disfranchised. Therefore, in the event of the acceptance of such a ballot by the warden or election officers, or in the event of the allowance of such a sticker to be pasted upon such a ballot, even though the ballot or the sticker is not in conformity with the technical require- ments of the statute, such ballots containing such stickers will HARVEY V. BRADBURY. HOUSE, 1920. 63 not be invalidated, if the ballots so deposited were the honest and clear expression of the intent of the voters, unless the statute expressly forbids the counting of such ballots. To entertain an opposite view would expose the voters to the mercy of the election officers, and it would open the door to fraud on the part of election officers who might intentionally permit and even encourage voters to deposit defective ballots in order that they might be rejected, and thus materially affect the result in the interest of one party or the other. This view seems to give due weight and scope to the statutes, and to preserve the sanctity of the right of suffrage and its free and honest exercise. In the absence of express provisions for a penalty for the violation of the provisions of the statute, the determining factor should be the honest expression of the will of the ma- jority, if that expression was not in any way affected by the alleged irregularities. The rule is well stated by Mr. Justice Braley in Ray v. Registrars of Voters of Ashland, 221 Mass. 223 (1915): — The cardinal rule is that if the intent of the voter can be fairly determined, effect shall be given to that intent and the vote counted in accordance there- with. Flanders v. Roberts, 182 Mass. 524, 525 and 526, and authorities cited. And his intention is to be found from the evidence of what he did. If not prohibited by statute, ballots which fairly and unmistakably express the voter's purpose are to be counted as deposited in the ballot box. O'Connell v. Matthews, 177 Mass. 518, 521; Brown v.. McCollum, 76 Iowa, 479; State v. Eagan, 115 Wis. 417. In assuming these views, your committee have followed prece- dent and were guided by the well-established proposition that the House of Representatives is the exclusive judge of the qualifi- cations of its own membership. Dinan v. Swig, 223 Mass. 516; Constitution, chapter 1, Article III, section X. Your committee, therefore, deemed it proper to be dictated by the law of reason and by the consciousness that this House should not be guilty of causing the disfranchisement of voters who have deposited their ballots in good faith, unless it is so directed specifically by a valid statute. Your committee took pains to remember that the case at bar does not merely involve the personal interest and right of both the petitioner and the sitting member, but it involves even the greater interest and greater right of the people of the said Twenty-first Suffolk District, — • the right to determine for themselves as to who shall be their 64 MASSACHUSETTS ELECTION CASES — 1920. representative in the General Court of Massachusetts; a right which should be zealously shielded by this House. No election should be declared to be void by reason of the violation of statutory provisions, be they even mandatory, without the clear and explicit direction so to do in the statute, if the result of the election was in no way affected by the alleged violations. Whether or not the result was affected is a question of fact for the committee on Elections, with the ap- proval of this House, to determine. In the light of all the surrounding circumstances, the com- mittee find it as a fact that the result of the election at issue was in no way affected by any of the violations alleged by the petitioner, and that there was no confusion in the minds of the voters voting in the last State election in the said town of Winthrop. Beremyer v. Kreitz, 135 111. 591-615. No com- petent evidence was presented by the petitioner to substantiate his assertion that the voters of the said town of Winthrop were misguided or misled to an extent that the result was thereby affected. All of the witnesses who appeared for the petitioner testified only as to their opinion and not as to their actual knowledge, — evidence which the courts held not to be ad- missible. O'Donnell v. Pollock, 170 Mass. 441; Luce v. Parsons, 192 Mass. 8; Rice v. James, 193 Mass. 458; Green v. Corey, 210 Mass. 536. It is safe to say that the voters had a clear con- ception of the exact political status of both the petitioner and the sitting member, and went to the polls on the day of election with a definite purpose. To assume otherwise would, in the opinion of your committee, constitute a denial of the possession of ordinary intelligence on the part of the people of Winthrop. The insertion of the political designation "Republican" in the Bradbury sticker did in no way influence the outcome of the election, for Bradbury at the time of the election was the repre- sentative from the said town of Winthrop in the General Court, having been elected as a Republican. Hence Bradbury's affilia- tion with the Republican party must have been a matter of common knowledge on the part of the people whom he repre- sented in this House. It follows, therefore, that the political designation "Republican" contained in the sticker conveyed nothing new to the people of Winthrop, for one cannot convey that which is already known. It is obvious, judging from the evidence of what the voters did, that the majority of the voters of the said town of Winthrop, voting in the last State election, in their wisdom deemed it HARVEY V. BRADBURY. HOUSE, 1920. 65 proper not to support Harvey, the regularly nominated Re- publican candidate for representative. Instead, they registered their preference for Bradbury by a majority voting for him in the last State election by means of stickers pasted in the ballot. Surely, this House legally or morally has no right to question the motives of the people of Winthrop, nor cast any reflection upon the soundness of their judgment. To apply the facts and the principles, supra, to the specific contentions set forth in the petition and amendments thereto, it would follow that none of them are sustained. Contention No. 1, wherein the petitioner claims that the use of the word " Republican " on the sticker was prohibited and thereby the election was rendered void, stands neither the test of law nor of reason. For, as stated above, the mere technical violation of a statutory provision will not invalidate an election if the result of the election was in no way affected by the viola- tion in question, unless the statute specifically provides, as a penalty for the violation of any of its provisions, that the votes should not be counted. Assuming, therefore, that the petitioner is correct in his insistence that the political designation "Re- publican" contained in the said sticker was prohibited, yet the effect of such violation, if it be a violation, does not necessarily suffer the election to be void, since the statute does not so pro- vide, and for the reasons, supra. Moreover, your committee find it difficult to accept the petitioner's view that the employ- ment of the political designation "Republican" constituted a violation of a mandatory provision of section 201 of chapter 835 of the Acts of 1913, as amended by chapter 250 of the General Acts of 1917. If it was the intention of the Legislature in enacting the said statutes thereby to prohibit the insertion of any political designation in a sticker, unfortunately the con- struction of the statutes in question does not permit the con- veyance of that intention, — a defect which can be cured, if a cure be deemed necessary, only by additional legislation. All that section 280 of chapter 835 of the Acts of 1913 says is that stickers shall be subject "to all the restrictions imposed by sections 258 and 261" as to political designations. Section 258 of the said chapter relates to the "Preparation and Form of Ballots," and provides in part as to the political designations of candidates, as follows : — To the name of each candidate for a state or city office, except city offices in Boston, shall be added in the same space his party or political designation or designations. 66 MASSACHUSETTS ELECTION CASES — 1920. Section 261 relates to the paper, size, form and type of official ballots, and says nothing about the political designation of candidates for a State office. There is, therefore, no "restriction" in either section 258 or 261 against the use of a political designation on a sticker. Ray v. Registrars of Ashland, 221 Mass., bottom of pp. 227, 228. Section 258, quoted above as originally enacted, contained at the end, after the word "designation," the words "expressed in accordance with section two hundred and one." Section 201 deals with " Certificates of Nomination and Nomination Papers," and the words "expressed in accordance with section two hun- dred and one" were stricken out of section 258 by section 2 of chapter 250 of the General Acts of 1917, which chapter is en- titled " An Act to prohibit the use of political party names on nomination papers in certain cases." The whole contention of the petitioner that the use of the word "Republican" on the Bradley sticker was illegal is founded upon the provisions of section 201, which by the act of 1917 no longer applies to stickers used at an election, if it were ever meant to apply to stickers. Bradbury was not "nominated otherwise than by a political party." He was "elected" by voters using the stickers which they were entitled to use. Contention No. 2, wherein the petitioner claims that the sticker was illegal because the type was not in conformity with the law as to size, is not sustained for the reasons, «upra, as well as by virtue of its own inherent weakness. It would be indeed ridicu- lous to suggest that the voter be required to determine the legality of the size of the type on the ballot as a condition precedent to the counting of the ballot deposited by him in good faith. Besides, the statute relative to the particular contention is directory and not mandatory. Ray v. Registrars of Ashland, supra. Contention No. 3, wherein the petitioner claims that the ballot containing the stickers were illegal because, as the peti- tioner says, "the sticker is attached to the ballot before being marked; it placed therefore in this case two names with the same political designation over the same office upon the ballot in violation of the Acts of 1913, chapter 835, section 258, as amended by the General Acts of 1917, chapter 215, section 2," is not sustained by the mere application of the principles already elaborated upon. It is to be observed that the petitioner, in his contention, HARVEY V. BRADBURY. HOUSE, 1920. 67 relies upon the assumption that "the sticker is attached to the ballot before being marked," which assumption, however, is not supported by any evidence. In fact, it is possible for the voter to mark the sticker even before it is attached to the ballot. Thus the said contention is founded not on a positive but rather on a speculative basis. The said contention fails also because said statute relates to the preparation of the official ballot on the part of the election officers, and does not relate to the rights of the voter. Contention No. 4, wherein the petitioner claims that the election of Bradbury was illegal because of the distribution of an envelope within 150 feet from the entrance of the polling places, containing therein directions or requests to the voters, fails for the reasons contained above. ' Moreover, the petitioner failed to establish two material points: (1) that the distribution of the said envelopes containirig the printed matter actually in- fluenced the minds of the voters, and thereby affected the out- come of the election; and (2) that the sitting member author- ized, consented to or knowingly ratified the same. It has been ruled that even the distribution among voters of checks redeem- able in liquor, cigars, etc., at a saloon near the polls, and the distribution of refreshments at the polls, will not invalidate the election if it is not shown that the voters were actually influ- enced by these acts, and that these acts were authorized and ■consented to by the sitting member. Election Cases, 1853, 1885, Prescott v. Grossman, p. 303. Finally, the statute itself, upon which the said contention is based, provided for the violation of its provisions a fine of not more than $20. Contention No. 5, wherein the petitioner claims that the election was illegal because many of the stickers were pasted over the name of Harvey, is not sustained. The placing of a sticker containing one name over another name indicates conclusively the intention of substituting one name for another. If it is placed over another name which is under the title of an office, it indi- cates conclusively an intention to substitute for that office the name upon the sticker. It would seem, therefore, to be con- trary to sound reason and the judicial and legislative construc- tion of our statutes to say that a ballot thus cast in good faith and without fraud by a legal voter should be rejected. Ray v. Registrars of Ashland, cited above; Cushing Law and Practice, Legislative Assemblies, par. 105; Keller v. Robertson, 27 Mich. 116; Election Cases, 1896, 1897; Opinion of the Attorney-Gen- 68 MASSACHUSETTS ELECTION CASES — 1920. eral, p. 47. The petitioner's request for an inspection and re- count of the ballots has been therefore denied. Thus, every contention taken separately fails, and surely they do not become stronger when taken together. In the light of all the facts, supra, it is the opinion of your committee that the result of the election in the case at bar was the honest and unmistakable expression of the will of the ma- jority of the people voting in the last State election in the said town of Winthrop, and therefore the will of the people thus manifested shall prevail. Cole v. Tucker, 164 Mass. 486; Brew- ster v. Sherman, 195 Mass. 222; O'Connell v. Matthews, 177 Mass. 518; Attorney -General v. Campbell, 191 Mass. 497; Beauchmin v. Flagg, 229 Mass. 23; Shepard v. Sears, Election Cases, 1885- 1897; Riley v. Aldrich, House Document 343, 1904; Moore v. Booth, House Document 259, 1910. Accordingly, the said Charles D. Bradbury is the legally elected representative from the said twenty-first Suffolk district, and is therefore entitled to retain his seat in the House of Rep- resentatives as representing the said district. The committee unanimously concur with the said conclusions, as to all the contentions set forth by the petitioner, except as to the first one. The petitioner is hereby given leave to withdraw. [The report of the committee was accepted. — House Journal, p. 250.] CALLAHAN V. SWEENEY. HOUSE, 1921. 69 House — 1921. Committee on Elections — Messrs. Lloyd Makepeace of Maiden, chairman; John C. Brimblecom of Newton, Carl J. Rolander of Worcester, Walter S. Hale of Rockport, clerk, Alfred H. Whiting of Ashburn- ham, William H. Grady of Springfield and William H. Winnett of Boston. John A. Callahan v. James F. Sweeney. House Document, No. 1140. Jan. 27, 1921. Report by Mr. Lloyd Make- peace, chairman. House of Representatives. — The House of Representatives shall be the judge of the returns, election and qualifications of its members. Election Circulars. — The House will not declare vacant the seat of a member, on account of the use of a misleading circular or poster used previous to the elec- tion, in absence of evidence that such circular did actually mislead and influence the voters. The committee on Elections, to which was referred the petition of John A. Callahan praying that he be declared elected as representative from the Eleventh Hampden District, which district comprises Wards 5 and 7 in the city of Holyoke, and be seated in the place of James F. Sweeney, the sitting member, having considered the same, as well as all the evidence sub- mitted by the petitioner in support of his petition, and all the evidence offered by the sitting member and the arguments of counsel on behalf of each, hereby submits the following report: — Both the petitioner and sitting member were represented by counsel, the petitioner by Merrill L. Welcker, Esq., and the sitting member by Thomas C. Maher, Esq. It appeared from the official returns that were put in evidence that the whole number of ballots cast for representative in the Eleventh Hampden District at the election held on Nov. 2, 1920, was 5,997. John A. Callahan of Holyoke received 2,692; James F. Sweeney of Holyoke received 3,091; blanks, 214. From these figures it appears that the sitting member received 399 more votes than the petitioner. Chapter 1, section III, Article X of the Constitution of Massachusetts provides as follows: "The house of representa- tives shall be the judge of the returns, elections, and qualifica- tions of its own members." 70 MASSACHUSETTS ELECTION CASES — 1921. The only question involved in this case was the issuing be- fore the election, and in the course of the campaign, a circular signed by the sitting member, which reads as follows : — Hold This for Future Use. Photograph Voters of Wards 5 and 7. of Re-elect James F. Sweeney. James F. Sweeney, Representative. Experienced and Capable to look after Your Legislative Needs. Served your City State and Nation Alderman, Representative, Soldier To the Voters. I desire to call your attention to the fact that after serving you honorably and faithfully for the past year as your representative at the State House, Boston, from the Eleventh Hampden District (Wards 5 and 7), that I am a candidate for re-election, and seek your consideration at the polls Tuesday, November 2. Having served three years on the board of aldermen, fifteen months in the United States Army (twelve months overseas) and for the past year your representative, and with the experience gained, I can assure you, if I am re- elected, I will be in a position to benefit my city and district. Having been guided by my district on matters of importance which have come before me for consideration the past year, such as the Holyoke-Spring- field Bridge Bill, Sunday Baseball Bill, Maternity Bill, and Chamberlain's Sex-Hygiene and Birth Control Bill, and numerous others, I can assure you, you will not make any mistake by voting for me. HOLYOKE AND SPRINGFIELD BRIDGE BlLL. By untiring efforts by myself and the other representatives we were able to get a favorable report from the legislative roads and bridges committee which saved the city of Holyoke approximately one-half million dollars ($500,000). The report was laid on the table until the next session. Do you want to change your representative now? To the Women Voters. Below are two of the most important bills which have come before the Legislature in years, and which every woman should read and give it plenty of consideration before she decides to change her representative. Maternity Benefit Bill. A bill to give aid to expectant mothers, before and after confinement with skilled nurses and medical attendance, for which she pays if she is able. I voted for this bill, but it was referred to the next session. This is no time to change your representative. CALLAHAN V. SWEENEY. HOUSE, 1921. 71 Chamberlain's Sex-hygiene Bill. This bill, better known as the Chamberlain Physical Health Bill, which if it became a law would mean nothing more than centralization of power which would be given to men appointed to the office, and if you were not satisfied with the course laid out to your children, your only redress is an appeal to the Governor. A bill which would be compulsory teaching of sex-hygiene and birth control to children, ten and twelve years old, against the parents' wishes. A bill which would take the child away from the parent and put them under the direct supervision of the State. A bill which would disrupt the morals of your children. I bitterly opposed this bill on the grounds that the child belongs to the parent and not the State, and if they must have physical training it should be under the control of your local school board, as it is the school that is public, not the child. Again I ask, do you want to change your representative? My opponent, who was elected to the office of school committeeman last year, and has two more years to serve, openly boasts he will not resign if he is elected as representative. My opponent is also a sexagenarian, and in my opinion would not be able to serve your district properly. And so I make this personal appeal to your reason, in closing, with the as- surance that you will not regret your action in voting for me. Yours very truly, Representative James F. Sweeney. Note. — Don't be misled with the prohibition issue. Why look for some- thing that we already have? No man whom you elect to serve you in Boston has anything to do about the Volstead Act. Your Congressmen in Washington are the only body who have the power. The petitioner contended that the sitting member inserted in said circular a section headed, " Chamberlain's Sex-Hygiene Bill," which heading appeared in prominent black type, when in fact, the actual title of said Chamberlain's bill was, "To provide Physical Training in the Public Schools and Normal Schools," and that near the end of said section the following words were inserted: "My opponent is also a sexagenarian, and in my opinion would not be able to serve your district properly," and that as a result of the sitting member's characterization of the title of said act, together with the use of the word "sexage- narian," printed in italics, said circular was intended to and did in fact place him in a false position before the people of said district and influenced a large number of voters against him, and that the voters concluded from the reading of said circular that a sexagenarian was a person who believed in teaching the sex relations to the pupils in the public schools. 72 MASSACHUSETTS ELECTION CASES — 1921. The committee have carefully considered the facts, together with the exhibits introduced and the arguments of counsel, and find that the petitioner is sixty-two years of age, and that the word "sexagenarian" is defined in the Century Dictionary as meaning "A person sixty years of age; or between sixty and seventy." The committee also find that the petitioner has not maintained his contention that the voters of the said district were influenced or misled by said circular to the extent that the result of said election was thereby affected. To assume that they were so influenced or misled would constitute a denial of the possession of ordinary intelligence on the part of said voters of the Eleventh Hampden District. The committee have therefore come to the conclusion that the election in the case at hand was the ex- pression of the will of the majority of the voters at said election in the said Eleventh Hampden District, and that the will of the people thus manifested should prevail. The petitioner is therefore given leave to withdraw. [The report of the committee was accepted. — House Journal, p. 187.J BULLOCK & LATTIMORE V. BURKE & DRISCOLL. HOUSE, 1921. 73 House — 1921. Committee on Elections. — Messrs. Lloyd Makepeace of Maiden, chairman; John C. Brimblecom of Newton, Arthur E. Beane of Cambridge, Walter S. Hale of Rockport, clerk, Alfred H. Whitney of Ashburn- ham, William H. Grady of Springfield and William H. Winnett of Boston. Matthew W. Bullock and Andrew B. Lattimore v. Frank J. Burke and Timothy J. Driscoll. House Document, No. 1501. April 5, 1921. Report by Lloyd Makepeace, chairman; Mr. Brimblecom dissents to part of report. House of Representatives. Qualifications of Members. — Statements made by a member on the floor of the House will not be allowed to determine or affect his qualifications as a member of another General Court. Same. — Statements by a representative that he does not represent a certain class of voters in his district will not be allowed to affect his qualifications as a member. Same. Corrupt Practices. — Offences against the corrupt practice statutes when trivial and unimportant will not affect the election of a member. Fraud and Intimidation. — The question in each case must be, has the great body of the electors had an opportunity to express their choice through the medium of the ballot and according to law, and this question must be decided in the light of all the facts and circumstances shown in the evidence. Same. — There is no valid ground for contesting an election on account of al- leged intimidation if the result would not be changed, and such would be the event unless a number of voters had been prevented from voting, sufficient to have varied the result. Fraud and Intimidation. — The sending to the voters of a district of a circular containing misleading and false statements in respect to a candidate for the House will not invalidate an election, if such circular is not shown actually to have influ- enced voters, or to have been authorized, consented to, or knowingly ratified by the candidate in whose behalf the same was sent, nor unless it appears that the result of the election was materially affected thereby. Same. — Fraud to invalidate an election must be shown to have affected the re- sult, and such fraud must be known and ratified by the candidate. Both the petitioners and the sitting members were represented by counsel, the petitioners by Charles F. Rowley, Esq., and the sitting members by Homer Albers, Esq. The committee heard the parties on the eighth, ninth, fif- teenth, sixteenth and twenty-fourth days of February, 1921, and summoned many witnesses at the request of both the petitioners and the sitting members. The committee on Elections, to which was referred the petition of Matthew W. Bullock and Andrew B. Lattimore that the 74 MASSACHUSETTS ELECTION CASES — 1921. seats occupied by Frank J. Burke and Timothy J. Driscoll as representatives from the Thirteenth Suffolk Representative Dis- trict be declared vacant and that an election be held to fill said seats (House, No. 269), and the petition of the said Bullock and Lattimore that they be declared the duly and legally elected members of the House from the Thirteenth Suffolk Representa- tive District (House, No. 270), having considered said petitions as well as all the evidence submitted by the petitioners in support of their petitions, and all the evidence offered by the sitting mem- bers, and the arguments of counsel on behalf of each, and after having given the same patient and thorough study, hereby submits the following report: — The Thirteenth Suffolk Representative District is composed of Ward 13 of the city of Boston. According to the official returns, the vote for representative in that district on Nov. 2, 1920, was as follows : — Matthew Washington Bullock of Boston 2,938 Frank J. Burke of Boston 3,074 Timothy J. Driscoll of Boston . 3,030 Andrew Berkeley Lattimore of Boston ...... 2,859 The petitioners alleged: — 1. That they were the duly nominated Republican candidates in the Thirteenth Suffolk District for members of the House of Representatives for the year 1921, and that they were defeated at the election held Nov. 2, 1920, by a plurality placed, ac- cording to the figures in a recount, at 92 and 137, respectively; that certain persons registered and duly entitled to vote were willing and prepared to vote for your petitioners at said election; that such persons did not vote through fear and intimidation caused by a circular letter bearing the title "Massachusetts Election Commission," and purporting to be signed by Mr. Malcolm A. Webster, secretary, a copy of which is attached hereto, which letter was received by them through the mail; that said letter stated that there had been presented to the office of the Massachusetts Election Commission evidence to the effect that the recipient of the letter had been illegally registered from the address at which he or she had registered, and that said Commission intended to see that the election law in regard to illegal registration, which was alleged to be section 2 of chapter 630 of the Acts and Resolves of the Legislature of Massachusetts of 1920, was enforced; that there is no such section or act as that alleged to be said section of said act; BULLOCK & LATTIMORE V. BURKE & DRISCOLL. HOUSE, 1921. 75 that the said recipient of the said letter, with few exceptions, — with exceptions your petitioners believe to have been unin- tended, — were colored voters; that said letters were sent to said voters because it was believed by the sender or senders thereof that the said voters would be intimidated thereby, or were more likely to be intimidated thereby than would white voters; that the sitting members, Frank J. Burke and Timothy J. Driscoll, or either of them, had knowledge, were responsible for, or were concerned with the printing and distributing of said letter, or had knowledge thereof prior to the mailing thereof; that said sitting members, or either of them, thereby intimidated or caused to be intimidated said voters and committed or caused to be committed or connived at fraud in said election. 2. That the aforesaid Prank J. Burke, the sitting member, in his public utterances both on the floor of the House of Repre- sentatives and elsewhere on divers occasions, has publicly and repeatedly stated that he did not represent or intend to represent a large number of the voters and other residents of his district, to wit, the colored voters and other colored residents of said district; that the aforesaid colored voters and other residents constitute nearly 50 per cent of the voters and other residents of said district; that the said Frank J. Burke, by the said public utterances and by the literature and other matter which he caused to be published during the political campaign immediately preceding the election of Nov. 2, 1920, has consistently shown an attitude and purpose in relation to the said colored voters and residents inimical and hostile to them and of such a character as to render him wholly unfit and incapable of acting for and representing the said colored voters and other residents of said district; that the said attitude, purpose and character of the said Frank J. Burke made it wholly impossible for him faith- fully and impartially to discharge and perform his duties as such representative as required by his oath of office; and that he is unfit to act as and incapable of acting as such representative from said district. 3. That a certain circular, a copy of which is attached hereto and by reference incorporated herein, purporting to be signed by certain persons representing themselves as the " Citizens' Com- mittee of Roxbury," was immediately, prior to Nov. 2, 1920, distributed to the voters in the said Thirteenth Suffolk District; that the said circular contained certain statements of facts and certain allegations of opinion in regard both to the said sitting members and to your petitioners, and strongly recommended 76 MASSACHUSETTS ELECTION CASES — 1921. the election of the said sitting members and advised the defeat of your petitioners; that both in the foreword to the voter ap- pearing on the first page of said circular, and thereafter through- out, the body of the said circular, the said persons representing themselves as the said "Citizens' Committee of Roxbury" pur- ported to be publishing their personal opinion of the said sitting members and of your petitioners, and purported to subscribe to and endorse the said statements of facts contained in the said circular, whereas, in fact, a large proportion of the said persons had never seen the circular which they purported to sign, a large proportion of said persons never signed the said circular nor authorized another to affix their signatures thereto, and the majority of the said persons knew nothing of the circumstances and facts set forth in said circular over their names as purporting to emanate from them; that the said Frank J. Burke and Timothy J. Driscoll, the sitting members, or one of them, well knowing the facts set forth herein, prepared, printed and dis- tributed the said circular, or caused or were or was responsible for the preparation, printing and distribution of said circular, and that thereby the said sitting members or one of them com- mitted or caused to be committed a fraud in said election. 4. That the said sitting members, or either of them, com- mitted other frauds or that other frauds were committed by various persons in their interest or in their employ, which your petitioners will more fully specify hereafter. The petitioners filed with the committee the following bill of particulars : — And now come the petitioners in the above entitled cause and in reliance upon and in support of the petition filed in said cause, more specifically and particularly herein set forth the grounds of their complaint against said Burke and said Driscoll. 1. That said Burke, although a member of the Legislature of the year 1920, and bound by his oath of office impartially and fairly to represent all the people in his district and the Commonwealth, irrespective of race, color or creed, and to support the Constitutions, both Federal and State, did publicly and deliberately incite race prejudice and hatred, and did say in substance at the following places and upon the following dates, to wit: — On the floor of the House of Representatives, April 12, 1920. At Douglass Square, Boston, on or about Aug. 00, 1920. At the Beacon School, Mount Vernon Street, Boston, on or about Oct. 9, 1920. At City Hall, Boston, on or about Nov. 11, 1920. At the corner of Washington and Ruggles streets, Boston, on or about Oct. 30, 1920. That there were a lot of colored people in his district, he regretted to say; that he did not like them; that they did not vote for him, and he was glad of it because he did not represent them; that he never would represent them; that they were no good, none of them; that he had no use for them. BULLOCK & LATTIMORE V. BURKE & DRISCOLL. HOUSE, 1921. 77 2. That on the day of election, Nov. 2, 1920, said Burke at the voting place in Precinct 3, Ward 13, did without right, unlawfully, and contrary to the statutes of this Commonwealth, go inside the guard rail at said voting place, and did intimidate one Charles Heinz, Jr., in charge of the ballot box at said voting place, and in consequence of said intimidation said Heinz unlawfully and illegally refused to permit a vote to be challenged, and said Heinz admitted before the election commissioners of the city of Boston that he had been in- timidated by said Burke, and thereupon resigned from his, office. 3. That said Burke and said Driscoll did cause to be printed and did send out a card printed in white letters on a black background, an original being appended to the petition filed in said cause, for the purpose of inciting race prejudice and of discrediting your petitioners because of their color; that said card was unsigned by said Burke or Driscoll or any person purporting to repre- sent them or to act on their behalf, contrary to the provisions of chapter 835 of the Acts of 1913, as amended by chapter 783 of the Acts of 1914 and all other acts in amendment thereof and in addition thereto. 4. That said Burke and said Driscoll did send out a circular to the voters of the district grossly and fraudulently misrepresenting the records and char- acter of your petitioners, a copy of which is appended to the petition filed in said cause. 5. That said Burke and said Driscoll, illegally and contrary to the statute, did authorize and permit money to be expended by them for materials and labor in the preparation of said circular referred to in specification No. 3 with- out making a return of the cost or value of said circular in their sworn return of expenditures to the Secretary of the Commonwealth for the year 1920. 6. That said Burke and said Driscoll did unlawfully and illegally cause to be printed on said circular referred to in specification No. 4 the names of per- sons as alleged signers thereof who never had read nor seen the contents of said circular, and who never had authorized the use of their names as signers thereof. 7. That said Burke and Driscoll did fraudulently and illegally circulate or cause to be circulated among the colored voters of the district the circular letter appended to the petition filed in said cause, said circular being headed, "The Massachusetts Election Commission," in consequence whereof many of the colored voters of said district, both male and female, were intimidated and put in fear of voting for your petitioners, and did not vote. If the persons so in- timidated and put in fear had voted as they desired and would have except for said circular, your petitioners would have been duly elected. 8. That said Driscoll did repeatedly publicly state that he was in entire sympathy with the acts and utterances of said Burke in regard to the colored people of the district and the Commonwealth. 9. That said Burke and said Driscoll, by their conduct and their utterances, have shown themselves to be men so lacking in principle and character, so will- fully unmindful of the sacredness and obligations of their oaths of office, as to be unfit and disqualified to serve as members of the Great and General Court . They also filed an amended bill of particulars, which reads as follows : — And now come your petitioners and move to amend their bill of particulars filed in said cause by striking out specification No. 5 therein, and substituting therefor the following : — 78 MASSACHUSETTS ELECTION CASES — 1921. 5. That said Burke and said Driscoll, or one of them, illegally and contrary to the statute, did authorize and permit money to be expended for or by them, or one of them, for materials and labor in the preparation of said card referred to in specification No. 3 without making a return of the costs or value of said card in their or his sworn return of expenditures to the Secretary of the Com- monwealth for the year 1920. As to the first specification: Frank J. Burke, one of the sitting members, stated before the committee that he repre- sented no class or color of voters. We find that said Burke has on various occasions stated publicly that he did not represent or desire to represent the colored voters and did not care for their votes. There seems to us, however, no legal objection to any candidate for elective office stating that he does not care for the votes of particular persons or groups or classes of persons. The contestants also rely upon a speech of said Burke on the floor of the House of Representatives prior to the election of the present House. In our opinion the remarks of a member which were accepted by a prior House before the election in this case should not be the basis of objections to his qualifying as a member of a subsequent House. See Hinds' Election Cases, sections 1284-1289, inclusive. As to the second specification: That said Burke went inside the guard rail on the day of election, Nov. 2, 1920, and intimi- dated one Charles Heintz. It appeared that Heintz was a warden in Precinct 3 of said Ward 13. Harriet C. Hall, one of the witnesses for the con- testants, testified that Burke had taken the hand of a voter, to wit, one Nellie M. Dempsey, and pushed her ballot into the ballot box; that Burke was standing just outside of the guard rail at the time. Massachusetts General Laws, chapter 54, section 25, provides that "the guard rail shall be so placed that only persons inside thereof can approach within six feet of the ballot boxes." Burke and the officers of election and said Nellie M. Dempsey testified that Burke did not touch Nellie M. Dempsey, and did not go behind the guard rail, nor thrust her arm or ballot toward it. The evidence substantiates these statements. Said specification No. 2 further states that Burke intimidated said Heintz, and in consequence of said intimidation said Heintz unlawfully and illegally permitted a challenged vote to be counted. The alleged challenged vote was that of said Nellie M. Dempsey. It appeared that Nellie M. Dempsey was a legal BULLOCK & LATTIMOKE V. BURKE & DRISCOLL. HOUSE, 1921. 79 voter, and had a right to vote. Harriet C. Hall, one of the contestants' witnesses and workers, testified that she challenged or attempted to challenge the vote. This attempt was made before the voter entered the guard rail, and before the ballot had been marked by the voter. The election officer testified that he did not hear any challenge, but it seems to your com- mittee unimportant, because Nellie M. Dempsey, according to the evidence, clearly had a right to vote. We find that Heintz, the warden, was not intimidated by Burke. Burke stood several feet from the rail, and after Mrs. Hall, by her attempt at challenge, had delayed the voting, as she said, for about ten minutes, Burke called out, "Let that woman vote." As many voters were in line awaiting their turn to vote it does not seem to your committee that Burke should be criticized because he asked that the woman be allowed to vote, in order that others waiting might have an opportunity to approach the polling place. As to the third specification: That the sitting members caused to be printed and distributed to between 2,500 and 3,000 voters an unsigned card printed in white letters on a black background. The contestants claim that this card fell under the prohibition of General Laws, chapter 55, section 34. The card was black, and on it there was printed in white letters : " Re-elect two White Representatives, Burke and Driscoll." Pictures of these two candidates also appeared on the card. This card did not criticise the personal character or political action of any can- didate, and therefore your committee find that this card did not come under the provisions of said statute. It also appeared from the evidence that the contestants themselves distributed throughout the district an unsigned card asking the voters to vote for them. As to the fourth specification: That Burke and Driscoll sent a circular to about 2,500 or 3,000 voters grossly and fraudulently misrepresenting the records and character of the contestants. A copy of that circular is annexed to the petitions, and is en- titled "Foreword." With reference to contestant Bullock, the circular, after giving his residence, age and birth, was as follows: — Public record: None. Opinion: A new man in our midst, we feel that the nature of his support is such as to render him an unfit candidate to represent the entire people of the district. We advise his defeat. 80 MASSACHUSETTS ELECTION CASES — 1921. With reference to contestant Lattimore, the circular, after giving his residence, age and birth, was as follows : — Public record: None. Opinion: His affiliations and surroundings are such as to render him an unfit man to represent the whole people of this district. We advise his defeat. This circular thereafterwards referring to the contestants said: "They now seek to secure an election through subterranean and dark lantern methods, hoping that they might be swept into public office on an impending political tidal wave." This circular bore the name in print of twenty-two voters in the district, called the " Citizens' Committee." The sitting members admitted that they were instrumental in distributing this circular. We find that said circular did not grossly and fraudulently misrepresent any material facts as to the con- testants, as alleged in the specification. As to the Fifth Specification: As amended, this specification charged the sitting members with expending money in prepara- tion of the card referred to in specification No. 3 without making return of the cost or value of said card. It appeared from the evidence that a firm of printers and publishers, one of whom was friendly with the sitting member Burke, told Burke that they would like to get out something for his election, or to help toward it. Burke assented, and they printed the said card, using scrap card of little or no merchant- able value. The said printers procured cuts — pictures of the sitting members — at an expense of about $12. The ink used was testified to be worth a few cents, and from two to two and a half hours of labor were consumed in the work, so that the total cost to the printers or publishers was about $14. The said printers, or one of them, donated said cards to Burke, and Burke and Driscoll both assisted in distributing the same. The sitting member Burke was asked at the hearing before this committee whether he made any return of that card, and stated, "No, I did not make any return of that; that was a gift. They gave it to me. There wasn't anything of particular value in it, but my friend wanted to do something, and I let him do it." Under the Corrupt Practice Act, General Laws, chapter 55, each candidate for representative in the General Court in a district entitled to two representatives may spend $200 in order to promote his election. Burke returned an expenditure of $101.35; Driscoll returned $149.25. It is therefore quite clear BULLOCK & LATTIMORE V. BURKE & DRISCOLL. HOUSE, 1921. 81 that if the contribution of this card should have been included in said returns, the sitting members were still within the limit authorized by the statute. The Corrupt Practice Act, Section 6, further provides: — This section shall not prohibit the rendering of service by . . . publishers . . . for which no compensation is asked, given or promised. See also the report of the Attorney-General of Massachusetts for 1916. The Corrupt Practice Act, section 37 (e) (2), further provides that the participation of a candidate in any of the prohibited things shall not be used against him if the same "arose from inadvertence or from accidental miscalculation, or from some other reasonable cause of a like nature." Section 37 (e) (4) provides that his participation in such prohibited matter shall not be used against the candidate if the violations "were of a trivial, unimportant and limited character." The committee find that the neglect to include the expense of said card in the return aforesaid was unintentional, and that it was of such a trivial, unimportant and limited character that it did not come within the provisions of said Corrupt Practice Act. As to the Sixth Specification: That the sitting members caused to be printed on the circular referred to in Specification No. 4 (the "Foreword" circular) the names of persons as alleged signers thereof, who had never authorized the use of their names. It appeared that the circular bore the names of twenty-two voters. Fifteen of these were called as witnesses by the con- testants. As to the others, there was no complaint. Fourteen of these fifteen testified that the use of their respective names on the circular was authorized. One witness, Annie Woodward, testified that the use of her name was not authorized, and that the first she knew about the circular was when it came by mail. From the evidence it appeared that the facts relative to the origin of this circular were as follows: At a meeting held at the Roxbury Courthouse, Mr. Driscoll, one of the sitting members, explained to the assembly a plan of forming a committee and sending out a circular which should show something of the qualifications of the sitting members as candidates, and their fitness for office. Mr. Driscoll then asked those who were willing that their names should be thus used to give in their names. 82 MASSACHUSETTS ELECTION CASES — 1921. At about this time the other sitting member, Burke, arose and announced that no one should give a name unless such person was perfectly willing to sign such a circular. Annie Woodward was present at this meeting. A young man, Frank Coughlan, went among the persons there assembled, to get names, and Annie Woodward gave her name. There was divergent and contradictory testimony as to whether she knew specifically the purpose for which she gave her name, but under the circum- stances we do not feel it necessary to decide this question, because it is clear from all the circumstances that the sitting members were acting in good faith. As to the Seventh Specification: On the morning before election many voters received by mail a circular letter, sub- stantially in the form annexed to the petitions, headed: "The Massachusetts Election Commission, State House, Boston, Massachusetts," and reading as follows: — Dear Madam : — There has been presented to this office evidence to the effect that you have been illegally registered from [here the address was in- serted]. Below is a copy of the offended law. The Massachusetts Election Commission intend to see that this law is strictly enforced, and will have officers there to see that it is. Respectfully yours, Mrs. Malcolm A. Webster, Secretary. Registration Laws. Revised 1920. Chapter 630, Sec. 2. Whoever makes a false statement to the Election Commissioners or any one of their duly appointed registrars, concerning their age, residence, or birth- place, or their husband's age, residence or birthplace, shall upon being found guilty of said illegal registration, be fined the sum of $500, and be imprisoned lor a period of one year in State Prison. There was no evidence whatever as to who published, mailed or were responsible for the said circular letter. There was no evidence that any voter was influenced or affected by said circular letter excepting one, Elizabeth Dicker- son, who testified that because she received that circular she refrained from voting. In cross-examination, however, she testified that she knew she was legally registered and had the right to vote. McCrary on Elections, section 550, says: — Slight disturbances frequently occur, and are often sufficient to alarm a few of the more timid without materially affecting the result or the fieedom of the election. BULLOCK & LATTIMORE V. BURKE & DRISCOLL. HOUSE, 1921. 83 To vacate an election on this ground, if the election were not in fact arrested, it must clearly appear that there was such a display of force as ought to have intimidated men of ordinary firmness. (Harrison v. Davis, 1 Bartlett, 341.) See also Brombcrg v. Haralson, 44th Congress, Smith, 355, where the committee said: — While there doubtless were isolated cases of violence artd intimidation, the election seems in the main to have been orderly, full and fair. We find from the evidence that the result of the election was not materially affected by this circular. Immediately after the circular letter had been received by voters, one of the con- testants, Lattimore, with the help, as he testified, of "at least twenty to twenty-five" others, went among the voters who had received the circular and told them to disregard the same as "fraudulent" and explained it to them. Lattimore further testified: "The voters had been informed before election time." It was proved that seventy-five named persons received the circular. Of this number, one was not a legal voter in the district, and seventy-two of the remaining seventy-four voted. There was no evidence offered as to how the other two would have voted, nor, unless the above facts necessarily call for an inference, as to why they did not vote. It also appeared that still others received the circular. Contestant Lattimore testified that he knew of 400 or 500 of such circulars having been received. While it is alleged that a large number of persons have been deterred from voting by violence and intimidation, the testimony of those persons or some of them should be introduced. The opinions and impressions of others are not sufficient. Norris v. Handley, 42d Congress, Smith, 68. The majority of Burke was 137; that of Driscoll, 92. As- suming that 500 voters received such a circular, it is not sufficient proof that the circular materially affected the result, for if these recipients voted in the same proportion as did the 75 who were definitely shown to have received the circular, the sitting members would still have a majority. The fraud must have affected the result of the election. Stimson v. Boardman, Loring and Russell's Election Cases, p. 171. The sitting members must know of or ratify acts of fraud. Prescott v. Crossman, Loring & Russell's Election Cases, p. 305. In the case of Norris v. Handley, 2 Hinds, Section 887, there was evidence of fraud and of intimidation. Hon. George W. 84 MASSACHUSETTS ELECTION CASES — 1921. McCrary wrote the report of the committee, in which certain outrages are mentioned, in order, as the committee said, "to denounce them;" but the committee reported that unless it could be determined with accuracy how many votes contestant lost, the sitting member should not be disturbed. See also Nlblack v. Walls, 2 Hinds, section 891. McCrary on Elections, section 564, says: — The question in each case must be, has the great body of the electors had an opportunity to express their choice through the medium of the ballot and ac- cording to law, and this question must be decided in the light of all the facts and circumstances shown in the evidence. We find from the evidence before us they had such an opportunity. It was held in State v. Mason that there would be no reason to contest an election if the result could not be changed, and such would be the event unless a number of voters had been prevented from voting, sufficient to have varied the result. 14 La. Ann. 505. As a matter of law, it is very doubtful whether such a circular could be construed or held to constitute either fraud or intimida- tion. It is, however, unnecessary to pass upon this question, because of the facts above stated. Your committee, while unanimous in condemning the printing and distribution of such a circular, believing that the same was intended to destroy the purity of the elective franchise and to obstruct the orderly procedure of government, finds from all the evidence that the petitioners have failed to substantiate their claim that the sitting members, Frank J. Burke and Timothy J. Driscoll, had knowledge of, were responsible for, or were in any way whatsoever concerned with the printing and distributing of said circular letter. The committee also find that said circular did not intimidate or influence the minds of a sufficient number of voters in said district so as to have changed the result of the election. See Stimson v. Boardman, supra. It appeared from the evidence that out of a total of 7,667 registered voters in the district, 6,564 voted at the election, or 85.61 per cent of the whole number. A still larger proportion of the registered women voters participated in the election, 93 per cent of those registered casting their ballots. As to the Eighth Specification: That the sitting member Driscoll repeatedly publicly stated that he was in sympathy with the acts and utterances of the sitting member Burke. BULLOCK & LATTIMORE V. BURKE & DRISCOLL. HOUSE, 1921. 85 The committee find that the allegation is not sustained. As to the Ninth Specification: That the sitting members "by their conduct and their utterances have shown themselves to be men so lacking in principle and character, so wilfully unmindful of the sacredness and obligations of their oaths of office, as to be unfit and disqualified to serve as members of the Great and General Court." The committee find that the contestants have failed to prove that the allegations in said ninth specification are true. The committee therefore find that the allegations set forth in the petitions and specifications are not sustained, and recom- mend that the petitioners be given leave to withdraw. [The report of the committee was accepted. — House Journal, p. 712.] Minority Report. The undersigned fully and heartily concurs with the majority of the committee in all its conclusions, so far as they affect Representative Timothy J. Driscoll, one of the sitting members. He also concurs, in general, with the conclusions reached by the majority of the committee on the first eight specifications as they affect the other sitting member, Representative Frank J. Burke. He dissents, however, from the findings reached by the majority of the committee on specification nine as to said Burke, and is of the opinion that the claims of the contestants have been substantiated, to wit, that said Burke has by his conduct and utterances shown himself to be so lacking in principle and character, so wilfully unmindful of the sacredness and obligations of his oath or office, as to be unfit to serve as a member of the Great and General Court. This opinion is based on evidence before the committee that Burke had repeatedly indicated, both in public speeches and in private conversation, his utter contempt of members of the negro race, and had used insulting, obscene and profane language regarding colored men and women. It is true, as the majority of the committee maintain, that there is no "legal objection" to a candidate for office stating that he does not care for any particular votes, but it is equally true that the House of Representatives may take this attitude into consideration in deciding whether or not a representative making 86 MASSACHUSETTS ELECTION CASES — 1921. such remarks is a fit person to assist in preparing laws for the government of the whole people. It should also be borne in mind that the good name of the House of Representatives is involved quite as much as that of the member in question, and that in determining this matter the House of Representatives is not confined to strict questions of law, and may use its best judgment as to whether Burke is fit to sit in our councils in the conduct of the affairs of the Commonwealth of Massachusetts. John C. Brimblecom. WHEELER V. CARTER. SUP. JUD. CT., 1902. 87 SUPREME JUDICIAL COURT. Henry A. Wheeler v. Sidney B. Carter and Others. (Reported in 180 Mass. 382.) ■ Worcester, Dec. 6, 1901 — Jan. 27, 1902. Present, Holmes, C. J., Knowlton, Morton, Lathrop and Hammond, JJ. Election Officer. — The provisions of St. 1898, c. 548, sec. 173, prohibiting a candidate for election from acting as an election officer in a voting precinct, does not apply to the moderator of a town meeting. Same. — St. 1898, c. 548, sec. 179, provides that the selectmen of towns not divided into voting precincts shall appoint tellers at least five days before an elec- tion, and that the presiding officers at the election may appoint additional tellers. At a town election the selectmen had failed to appoint tellers, and the town clerk, presiding before the election of the moderator, appointed tellers who acted through- out the meeting. Semble, that the authority to appoint additional tellers included the right to act when the selectmen had failed to appoint any previously and that the appointment was good, and held, that at any rate the tellers were de facto officers, and an irregularity in their appointment would not affect the legality of the election. Election. — If a town clerk fails to record the number of votes cast at an election where such a record is required, this does not invalidate the election. In such a case the clerk has power, and it would be his duty, to amend the record and state the facts. Town Clerk. — St. 1898, c. 548, sec. 373, providing for the punishment of a city or town clerk who fails to make a record of the votes cast at an election, does not apply to the record of the election of town officers at a general meeting of the in- habitants of a town. Evidence. — Evidence that certain voters in an open town meeting refrained from voting because a candidate for selectman acted as moderator, is immaterial and inadmissible. Town Meeting. — An article in the warrant of a town meeting was "to choose all necessary town officers for the ensuing year." The town had accepted St. 1898, c. 548, sec. 335, which required that the selectmen should be elected for a term of three years. Held, that the article was sufficient; that to choose officers for the ensuing year was to choose them according to the law in force. Petition of Henry A. Wheeler for a writ of mandamus com- manding Edmund W. Wheeler to desist from acting as selectman of the town of Berlin, and commanding the two other re- spondents, as selectmen of that town, to recognize the petitioner as selectman, elected on March 4, 1901, for a term of three years, filed April 15, 1901. The case was heard by Loring, J., who was of opinion that the writ should issue, but at the request of the respondents re- ported the case for the consideration of the full court, such order to be entered as law and justice might require. It appeared that the petitioner acted as moderator of the meeting at which he contended that he was elected selectman. 05 MASSACHUSETTS ELECTION CASES — 1902. The report of the justice, after stating that he had refused to give certain rulings requested by the respondents, continued as follows : — I ruled that St. 1898, c. 548, sec. 173, applied to the election of the petitioner as selectman on the fourth day of March, 1901. I ruled that the petitioner was not ineligible to be voted for as a candidate for the office of selectman at the meeting of March 4, 1901. I found as a fact that the ballot box was held by the moderator while the ballots were being deposited; that after the balloting was declared closed, he upset the ballot box upon the table and took part in assorting the ballots; and further, that while the ballots were being counted by Sidney B. Carter and James E. Andrews, two of the respondents in this petition who had been appointed tellers by the town clerk before the petitioner was elected moderator, he stood by and corrected an erroneous count made by one of them in one instance, though he did not at that time undertake to count or to handle the ballots which were being counted. I also found that in fact sixty-five ballots were cast for the petitioner for the office of selectman, and sixty- three ballots were cast for Edmund W. Wheeler, and that thereupon the petitioner was declared elected by Sidney B. Carter. I excluded evidence offered to show that two persons refrained from voting, and that the reason that they refrained from voting was because the moderator was a candidate for the office of selectman. I was of opinion that these facts do not constitute a defence, and so ruled. I found that the selectmen of the town did not appoint tellers as provided by St. 1898, c. 548, sec. 179, but that the town clerk, who called the meeting to order, appointed the respondents Sidney B. Carter and James E. Andrews tellers, and they acted as tellers throughout the town meeting. I ruled that they were legally appointed tellers. I find that they were tellers d> facto, and I ruled that the election of the town officers was not rendered void by the fact if it is a fact that they were not legally appointed tellers. I found that, in the record made by the town clerk, the number of ballots cast for the office of selectman was not stated, but it was stated that the petitioner was elected. I also found that the petitioner was declared elected to the office of selectman by the respondent, Sidney B. Carter. WHEELER V. CARTER. SUP. JUD. CT., 1902. 89 The respondents contend that (St. 1898, c. 548,) section 373 not having been complied with, the election is void. In my opinion section 373 does not apply to the record made by the town clerk of the election of town officers elected in open town meeting, and if it did, it would not, in my opinion, render the election void; section 373 manifestly applies to returns which have to be transmitted by the town to be canvassed by other returning boards. I found as a fact that St. 1898, c. 548, sec. 335 has been duly adopted by the town of Berlin. I found as a fact that at the town meeting of the inhabitants of the town of Berlin, held on April 3, 1901, the vote, a copy of which is annexed to the return in this cause, marked Exhibit 2, was adopted after a vote was taken in which the inhabitants of the town of Berlin elected Carter and Andrews and Edmund W. Wheeler as selectmen. To the foregoing rulings of law the respondents seasonably excepted. The vote above referred to as marked Exhibit 2, after a recital of facts in regard to the election of the petitioner at the meeting of March 4, declared: "Now, therefore, it is voted that the town hereby declares the ballot taken for the election of selectman at said meeting to be null and void, and that the office of selectman undertaken to be filled at that meeting is now vacant." H. Parker and A. P. Rugg for the petitioner. C. F. Choate, Jr. (D. I. Walsh with him), for the respondents. Knowlton, J. The St. 1898, c. 548, sec. 178, is as follows: "No person shall at a state, city or town election be eligible or act as an election officer in a voting precinct in which he is a candidate for election, and if a person appointed an election officer becomes such a candidate, and does not forthwith resign his office, the mayor or selectmen shall, if he is a candidate at a state election, remove him from office before the first day of November, or, if he is a candidate at a city election, the mayor shall so remove him at least eight days before the day of the election, or if he is a candidate at a town election, the selectmen shall remove him before the election." The most important question in this case is whether the statute applies to the moder- ator of the annual town meeting in a town which does not vote 90 MASSACHUSETTS ELECTION CASES — 1902. by precincts, so that if he is a candidate for election to another town office, it is the duty of the selectmen to remove him from his office of moderator. Under the first section of this chapter a moderator, in the performance of a part of the duties of his office, acts as an election officer. The language is: '"Election officer' shall apply to wardens, clerks, inspectors and ballot clerks, and to their deputies when on duty, and also to select- men, town clerks, moderators and tellers when taking part in the conduct of elections." A moderator is primarily the pre- siding officer at a town meeting called for the transaction of general business, and his duties as election officer, when any such duties devolve upon him, are an incidental and often but a small part of that which he is to do. The office is of ancient origin, and its incumbent is chosen by a vote of the people. The extent and variety of his duties is illustrated by the fact that at the meeting in question, at which the petitioner presided, the warrant contained twenty-five distinct articles, embracing a great variety of subjects affecting the interests of the town. It would require a pretty plain statement of legislative intention to justify us in holding that after one had just been elected to such an office and had entered upon the performance of its duties, the selectmen could remove him during the meeting, because he was a candidate for some other town office. Indeed, it has often happened that one whose services were needed as moderator was also specially qualified and for that reason generally desired for some other important town office. The petitioner argues with much force that the section first quoted does not apply to meetings of towns not divided into voting precincts. The prohibition is against acting as an election officer in a "voting precinct," not in a general meeting of all the inhabitants of a town. The section is found in that sub- division of the act which is entitled "Election Officers," and which treats particularly of officers appointed under that name for voting precincts. The provisions relating to elections in towns not divided into precincts appear in section 176 and the sections that follow it. It is only "a person appointed an election officer" who may be removed if he becomes a candidate for another office. These words do not fitly describe one elected by the people to the important office of moderator. That the words mean a person who becomes an election officer by ap- pointment prior to the beginning of the election is implied in the requirement that if a candidate for an office he shall be removed, in most cases a considerable time before the election, WHEELER V. CARTER. SUP. JUD. CT., 1902. 91 and always at some time before the election. The choice of a moderator is a part of the annual town election, and if the election is considered as a single occasion, he could not be removed from that office before the election. The petitioner's counsel has cited the statutes in relation to election officers and voting precincts, including St. 1884, c. 299, sees. 3-8; St. 1886, c. 264, sec. 8; St. 1890, c. 423, sec. 78, and St. 1893, c. 417, sec. 110, and from the course of legislation he derives an argument in support of his contention that the words "voting precincts" in the section before us do not apply to a town not divided into voting precincts. We think there is much force in this argument, but we do not find it necessary to decide whether we should go so far as the petitioner does in this con- tention. Whether this section does or does not apply to moder- ators elected by the people, the selectmen had no power to re- move the petitioner from the office of moderator, and there was no illegality in the petitioner's action. It is contended that the election was invalid because the article in the warrant under which the town acted was "to choose all necessary town officers for the ensuing year," while under the law members of the board of selectmen were to be elected for three years. The town had accepted St. 1898, c. 548, sec. 335. An article in a warrant for a town meeting should not be interpreted narrowly. To choose officers for the ensuing year was to choose them according to the law in force in that town. This law required that the selectmen chosen for the ensuing year should be elected for a term of three years. We think that the article was sufficient. See St. 1898, c. 548, sec. 325. The appointment of tellers in such meetings is required by the St. 1898, c. 548, sec. 179, under which the selectmen should make an appointment at least five days before the election, and presiding officers at the meeting may appoint additional tellers. The selectmen failed to appoint, and the clerk, while presiding previous to the election of the moderator, appointed 'two tellers who acted throughout the meeting. The town clerk was legally acting as presiding officer. St. 1898, c. 548, sec. 328 % We think the authority to appoint additional tellers includes a right to act, if there has been a failure of the selectmen to appoint any previously. The tellers so appointed are at least de facto officers. Attorney General v. Crocker, 138 Mass. 214, 221. This neglect of the selectmen and the consequent irregularity did not affect 92 MASSACHUSETTS ELECTION CASES — 1902. the legality of the election. O'Connell v. Matthews, 177 Mass. 518. The fact that the record does not show the number of votes cast for the different candidates does not render the election illegal. If these things ought to appear of record, it would be within the power of the town clerk, and it would be his duty to amend the record and state the facts. Halleck v. Boylston, 117 Mass. 469. But it is unnecessary to record the number of votes cast for the respective candidates at such a meeting. The St. 1898, c. 548, sec. 373, on which the respondents rely, does not apply to the record of the election of town officers in a general meeting of the inhabitants of the town. Many of the requirements of the law in regard to elections in cities and towns voting in precincts are inapplicable to elections in general town meetings. It is important in meetings of the latter kind that officers should so conduct themselves as not only to prevent interference with the freedom of the ballot and to secure honesty and purity in elections, but also to furnish no grounds for suspicion of dishonesty or partiality. But if an election is conducted according to the rules of law, the court cannot interfere with the result merely because voters may have been influenced to vote or to refrain from voting by the presence of some of the candidates near the ballot box in an open town meeting. The petitioner having been legally elected, the subsequent action of the town in declaring that there was a vacancy in his office did not affect his rights. Peremptory writ of mandamus to issue. PERRY V. HULL. SUP. JUD. CT., 1902. SUPREME JUDICIAL COURT. Charles B. Perry et al. v. Samuel E. Hull et al. (Reported in 180 Mass. 547.) Worcester, Jan. 6, 1902 — Feb. 28, 1902. Present, Holmes, C.J., Lathrop, Barker, Hammond and Loring, JJ. Mandamus. — Mandamus will not lie to enforce the caucus or election laws, the remedy for a violation being given by St. 1898, c. 548, sec. 417 (R. L., c. 11, sec. 421). Petition for a writ of mandamus by six citizens of the town of Millbury against the chairman and secretary of a Republican caucus of that town and five other persons declared at the caucus to have been elected the Republican town committee of Millbury, praying that the chairman and secretary be ordered to count the votes cast for the petitioners and others, and to declare the seven or eight having the highest number of votes to be elected members of the committee, filed Oct. 12, 1901. The petition alleged that a majority of the voters had deter- mined to elect a new committee and had prepared a ticket with eight names; that the day before the caucus the old committee met and changed the number of the committee from eight to seven, giving no notice of their action; that at the caucus the ballot for eight was thrown out, although it received a majority of the votes cast, and the committee's ticket of seven perpetuat- ing themselves was declared elected. The respondents demurred to the petition, on the grounds, among others, that the writ of mandamus would not lie for the matters alleged, and that an adequate and exclusive relief was afforded by the laws of the Commonwealth for the wrongs, if any, of which the petitioners complained. B. W. Potter for the petitioners. A. P. Rugg and T. H. Sullivan for the respondents. Barker, J. We assume that all the allegations of the petition are true. We assume further, but without so deciding, that the decision of the chairman and secretary of the caucus may be revised by the courts in proper proceedings. But the demurrer was rightly sustaiced because mandamus will not lie where the 94 MASSACHUSETTS ELECTION CASES — 1902. petitioners have another remedy by bill or petition given by statute. Hill v. McKim, 16 Mass. 100. In that case a judge of a court of insolvency having refused to order a hearing upon a proposal for composition it was held that the proper remedy was by bill or petition under Pub. Sts. c. 157, sec. 15, and not by mandamus. The remedy of the present petitioners was under St. 1898, c. 548, sec. 417. See R. L. c. 11, sec. 421. Orders sustaining demurrer and dismissing 'petition affirmed. BLACKMER V. HILDRETH. SUP. JUD. CT., 1902. 95 SUPREME JUDICIAL COURT. Tina H. Blackmer v. Merrick E. Hildreth and Others. (Reported in 181 Mass. 29.) Suffolk, Jan. 10, 1902 — March 1, 1902. Present, Holmes, C. J., Lathrop, Barker, Hammond and Loring, JJ. Election. — The requirements of St. 1898, c. 548, sees. 141, 142, 145, as to the time of filing nomination papers and the certificates thereon, although binding on the officers whose duty it is to prepare and pass upon the official ballot, do not invalidate ballots cast for a candidate nominated by papers filed too late and not properly certified. Petition, filed Aug. 13, 1901, for a writ of mandamus to be issued to the selectmen of Petersham commanding them to receive the petitioner as one of their board, and commanding Edwin C. Dexter to refrain from acting as a member of that board. The case was heard by Barker, J., who ruled that the in- formalities in the nomination papers of Edwin C. Dexter would not invalidate his election, and that the petitioner, by making no protest after his signing the certificate on the nomination papers on May 7, 1901, and by participation in the meeting at which Dexter was elected, and by acquiescence in its results, was precluded from maintaining his present petition. The justice ordered the petition dismissed; and the petitioner alleged exceptions. J. W. Corcoran and W. B. Sullitan for the petitioner. J. B. Warner and A. H. Brooks for the respondents. Hammond, J. St. 1898, c. 548, requires that a nomination paper in the case of an election like this shall be filed as early as the seventh day preceding the election (sec. 145), and that at the time it is filed it shall have thereon the certificate of the registrars of voters as to the number of signatures which are names of qualified voters, and also shall have annexed to it an oath made by one of the signers thereto verifying the truth of 96 MASSACHUSETTS ELECTION CASES — 1902. the statements therein contained, with the certificate of the person before whom the oath is taken that he is satisfied that the person to whom the oath is administered is the person signing the paper. Sees. 141, 142. In the case before us the nomination paper was filed two days late, and a certificate of the registrars was placed thereon and the oath of one of the signers of the paper and certificate respect- ing it were annexed thereto after the paper was filed but not before the official ballot was made up. One of the questions is whether the election shall be declared invalid on account of these irregularities. The justice found as a fact that all parties, including the town clerk and the registrars, one of whom was the petitioner, acted without fraud and in good faith. Dexter's name was placed upon the official ballot, and he received at the election a majority of the votes. Under our system of elections the voter receives at the polls from the election officers an official ballot, of which he does not know and is not expected to know anything except what appears upon its face; and as a rule it is impossible, as in this case, by an inspection of the ballot to ascertain whether or not there has been any irregularity in the preparation of it. He takes this ballot, sees upon it the names of the candidates, and, having expressed thereon in due form his choice, deposits it in the ballot box. Thus he duly expresses his will upon the paper prepared and handed to him by the officers of the law appointed for that purpose. All this he does in good faith. All this the voters at the election in question did in good faith, and the result was that Dexter received a clear majority of the votes. It is contended, however, by the petitioner, that the provi- sions of the election law above recited are mandatory, and that as a necessary result the election of Dexter was void. On the contrary, the respondents contend that in this case there was no such non-compliance with these provisions as to render the election void. The statute in question deals with the whole subject of elections, from the qualifications of voters to the final ascer- tainment of their choice. In order that the official ballot may be properly prepared, it provides the manner in which caucus and other nomination papers shall be made up, prescribing with considerable minuteness the details, and it fixes the time within which the papers shall be presented for the ballot as well as the time within which objections to any such paper may be made. BLACKMER V. HILDRETH. SUP. JUD. CT., 1902. 97 Sees. 139-146, 148-152. It further provides for the creation of a board charged with the duty of settling all disputed ques- tions of fact arising upon such objections, and "the decision of a majority of the members thereof shall be final." Sees. 147, 153. It further provides that nomination papers filed and in apparent conformity with law shall be held valid unless objec- tions are seasonably made thereto. Sec. 146. In the case of towns, the town clerk, having before him the undisputed papers and the decision of the proper tribunal upon those to which objection is made, prepares the official ballot in accordance therewith, and this is the ballot which the voter finds waiting for him at the polls. It contains the officially declared result of all these preliminary proceedings, but, as we have said before, there is nothing by which the voter can judge whether or not all these proceedings have been regular. As stated by Andrews, C.J., in People v. Wood, 148 N. Y. 142, 147; "The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to secure the rights of duly qualified electors and not to defeat them." This must be borne in mind in the construction of such statutes, and the presumption is that they are enacted to prevent fraud and to secure freedom of choice, and not by technical obstructions to make the right of voting insecure. The provisions above recited with reference to the preparation of the ballot are plainly limited and confined to that purpose. They are binding upon the officers for whose guidance and direction they are needed. If it be seasonably objected to a nomination paper that it was not filed within the time required by section 145, or that the provisions of sections 141 and 142 have not been complied with, it is the duty of the proper board to inquire into and settle the question, and to sustain the objection, if found to be true, and reject the paper. So far as respects their decision these pro- visions are mandatory. When the decision is made it is final, and a ballot made up in accordance therewith is not thereby made illegal. And in the same way the action of the town clerk at least in the absence of fraud and corruption, as to the papers to which no objection is made, must be regarded as final so far as respects the ballot which he prepares. But with the preparation of the ballot the influence of these provisions ends. If there be irregularities like those in this case they do not accompany the ballot and taint it in the hands of the voter. This view of the statute gives due weight and scope to the provisions in question, and preserves the sanctity of the 98 MASSACHUSETTS ELECTION CASES — 1902. right of suffrage and its free and honest exercise. To hold otherwise would be to lose sight of the purpose for which these provisions were made, namely, to provide the method and time for the preparation of the ballot, and would subject our elections to intolerable and perplexing technicalities in no way- material to the substantial merits of the controversy or to the freedom and result of the action of the voters. Its natural tendency would be to thwart rather than to secure a true ex- pression of the popular will. We are aware that the courts of England and Australia are inclined to extend the operation of provisions similar to those in question further than is done in this case, but an examination of the English statute would seem to show that it expressly reserves to the courts a supervision over some of the decisions of the officers respecting the preparation of the ballots, upon a petition questioning the election after it has taken place. St. 38 and 39 Vict. c. 40, sec. 1; Regina v. Parkinson, L. R. 3 Q. B. 11; Mather v. Brown, L. R. 1 C. P. D. 596; Howes v. Turner, L. R. 1 C. P. D. 670; Monks v. Jackson, L. R. 1 C. P. D. 683; Regina v. Miller, 1 Australian Jur. 156. But whether that be so or not, we are not inclined to adopt a construction which is so manifestly opposed to the general spirit of our laws and the freedom of our elections as that con- tended for by the plaintiff. For some decisions in other States in accordance with the views herein expressed, see People v. Wood, ubi supra, Stackpole v. Hallahan, 16 Mont. 40, and the cases therein cited, overruling in substance the previous case of Price v. Lush, 10 Mont. 61. The ruling that the informalities in the nomination paper of the respondent Dexter did not invalidate the election was correct. It becomes unnecessary to consider the other grounds of defence. Exceptions overruled. COMMONWEALTH V. KOGERS. SUP. JUD. CT., 1902. 99 SUPREME JUDICIAL COURT. Commonwealth v. John Rogers and Others. (Reported in 181 Mass. 184.) Suffolk, March 4, 1902 — April 2, 1902. Present, Holmes, C.J., Knowlton, Morton, Barker and Loring, JJ. Constitutional Law. — Those provisions of the election act, St. 1898, c. 548, which regulate caucuses and voting at them are constitutional. Same. — The provision of St. 1898, c. 548, sec. 91, that no person having voted in the caucus of one political party shall be entitled to vote or take part in the caucus of another political party within the ensuing twelve months, is valid. Same. — St. 1898, c. 548, sec. 92, requiring voting lists to be used as check lists in balloting at caucuses, is valid. Pleading. — A count for conspiracy to procure illegal voting and a count for aid- ing and abetting illegal voting are for offences similar in their nature, mode of trial and punishment, and may be joined in one indictment at common law. Indictment. — On an indictment for a conspiracy to procure persons to vote at a caucus who were not entitled to vote there, the conspiracy might be completed before any of the persons to be procured had been agreed upon, and the particular nature of the disqualification is not material to the offence and need not be alleged in the indictment. Same. — An indictment, for conspiring to procure persons to vote at a certain caucus who are not entitled to vote there, is not bad because under its charges the conspiracy might be to procure votes which were illegal for different reasons under St. 1898, c. 548, sees. 377, 378, and to abet contrary to sec. 390 of that statute, the offences punished under these sections being different, since the conspiracy alleged is one, and properly might be alleged to intend them all. Same. — Under St. 1899, c. 409, sec. 10, an indictment for conspiring to procure persons to vote illegally at a certain caucus need not state the place of the offence. Same. — On the trial of an indictment for conspiracy to procure persons to vote illegally at a caucus, there is no variance if it appears that when the conspiracy was formed the conspirators did not know any of the persons named in the indictment as the persons to be procured, and that one of them was not spoken to until 12 o'clock on the day of the caucus when all the plans were complete. In such a case the fact that the conspiracy is indictable in its initial stages does not prevent its being indicted in the shape which it ultimately assumes. Same. — An indictment for aiding and abetting illegal voting at a caucus is none the less sustained because it appears that there were informalities at the caucus, if they did not make the vote of the caucus void. Elections. — If a caucus is called for a certain hour, and, it being known that the regularly elected warden will be absent, a temporary warden is elected a few minutes before the hour named to fill the vacancy and when the caucus opens, and thereafter acts as warden, semble, that the election of the warden is good under St. 1898, c. 548, sec. 129, giving the power to fill vacancies "at a caucus." At any rate, there is a warden dc facto, and the votes cast at the caucus will not be affected by the irregularity. Evidence. — At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, an exception was taken to a refusal to rule that no unfavorable inference should be drawn against one of the defendants who acted as de facto warden at the caucus, because he delayed tor half an hour in opening 100 MASSACHUSETTS ELECTION CASES — 1902. the caucus, if that delay was on account oi the enclosures or pens outside the guard rail. There was independent evidence that the delay was for the purpose of facili- tating the carrying off of certain ballots and giving time to take them to the place where the fraudulent voters were assembled. Held, that the ruling rightly was refused. Same. — At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, the presiding judge, as the ground for admitting the declarations of one defendant as evidence against the others, stated his ruling that there was sufficient evidence of a conspiracy against all the defendants. Held, that the ruling was right and the statement of it proper. When a preliminary finding of fact on the part of the judge is necessary for such a purpose, there is no duty to conceal it from the jury. Same. — On a trial for conspiracy, declarations of the several defendants, admis- sible against themselves but not against the others, may be admitted, the jury being cautioned that statements made after the conspiracy had been carried out are admissible only against the party making them. Same. — At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, evidence that fraudulent voters were spoken to by one of the conspirators before all of them had come into the scheme is admis- sible, in connection with proof that the others did come in and by implication adopted the act, and because the usual way of proving a conspiracy is by showing a series of acts on the part of the several defendants all converging to one point. Same. — On a trial for conspiracy the weight of the testimony of fellow con- spirators properly is left to the jury. Evidence. — At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, it was held that there was sufficient evidence to go to the jury of the guilt of one of the defendants, who was present at the prelim- inary meetings, which were held in his house, and who contributed money toward the illegal scheme and helped at the time of the caucus. Holmes, C.J. This is an indictment in ten counts charging the defendants with conspiring to procure certain persons to vote at a republican caucus who were not entitled to vote there, and with aiding and abetting certain persons not entitled to vote in illegally voting at the same caucus. Probably in con- sequence of the number of counsel engaged scarcely a step was taken in the case without objection, and we shall not feel called upon to discuss each of the innumerable exceptions at length or to go much beyond the arguments addressed to us. A motion to quash was made on behalf of the defendants Winsloe, Newmarch and Lord, and another on behalf of the defendant Rogers. The former raises the question of the con- stitutionality of those parts of the election act, St. 1898, c. 548, which regulate caucuses and voting at them. The right of the Legislature to pass laws which provide "easy and reasonable mode of exercising the constitutional right," and which are "calculated to prevent error and fraud, to secure order and regularity in the conduct of elections, and thereby give more security to the right itself," is settled. Capen v. Foster, 12 Pick. 485, 490; Kinneen v. Wells, 144 Mass. 497; Jaquith v. Wellesley, COMMONWEALTH V. ROGERS. SUP. JUD. CT., 1902. 101 171 Mass. 138, 143. Here, as elsewhere (it might be said especially in matters of constitutional law were the fact not universal), it is vain to point out that the difference upon which a legal distinction is based — here the difference between seem- ingly useful or harmless legislation and a clearly void restriction — is one of degree, and to ask where you are going to draw the line, as is done by the defendants. Some legislation is per- missible and necessary. A line between cases differing only in degree is worked out by the gradual approach of the decisions grouped about the opposite poles. Objections, to deserve con- sideration, must be specific. The regulations in question provide and govern merely a means by ' which political parties may get the names of their candidates printed upon the official ballot, and they must govern if they are to provide them. The statute gives another means by nomination papers. Sec. 140. It does not prevent any one from voting for any other persons than those whose names are printed on the ballot or prevent people from meeting without regard to the statute, concerting their action and preparing pasters to be used upon the ballot. It does not interfere at all with the final vote for State officers, representatives and senators, which it is the most obvious purpose of the Constitution to pro- tect. See Cole v. Tucker, 164 Mass. 486, 487. We may assume for purposes of decision that legislation for the limited purposes of the sections in question is subject to the protection of the right to vote secured by the Constitution. But if it is, which we do not decide, the remoteness of what it affects from the final vote is to be borne in mind when we have to decide whether it only embodies reasonable precautions or trenches upon polit- ical rights. It would be a strange inversion to say that no laws can be passed upon the mode of voting at a preliminary meeting held only for the purpose of getting names printed upon an official ballot when laws can be passed affecting the final vote. The Legislature has a right to attach reasonable conditions to the advantage, if it has a right to grant the ad- vantage. Whether the defendants mean to deny that right or to contend that if any names are printed those of all possible candidates should be, is not very clear. We see no reason to doubt that the provisions for printing names presented by a fixed minimum of voters in the specified way is proper. Indeed that hardly is an open question. It is settled that the rights of others are protected by the provision for blank spaces. Cols v. Tucker, 164 Mass. 486, 488. Practically it is settled that there 102 MASSACHUSETTS ELECTION CASES — 1902. is no ground of complaint in the obviously necessary restrictions upon the number of names to be printed. Miner v. Olin, 159 Mass. 487. The suggestion that it is a hardship upon a voter who can write nothing but his own name is really an objection to the ballot in general, and, with the objection that the statute is class legislation, is disposed of by the cases cited. See further BeWalt v. Bartley, 146 Penn. St. 529; Ransom v. Black, 25 Vroom, 446. One specific objection urged is that by section 91 no person having voted in the caucus of one political party shall be en- titled to vote or take part in the caucus of another political party within the ensuing twelve months. It seems to us im- possible to say as matter of law that this is not a reasonable precaution against the fraudulent intrusion of members of a different party for sinister purposes. It is objected, further, that an attempt is made to require greater qualifications for voting than are required by the Con- stitution, by the provisions for the use of the voting lists as check lists, and the denial of the right to vote to those whose names do not appear upon the lists. It is suggested that the registration under sections 36-38 may be closed twenty days before the caucus, so that persons who become qualified in the interim are not allowed to vote. For the purposes of a pre- liminary meeting, this again does not seem to us an unreasonable precaution, and we cannot say as matter of law that the time allowed is unreasonable. The actual interim presumably will be much less, under the requirement that the registrars hold at least one . session on or before the Saturday last preceding the first caucus preceding the annual State election. The provision in section 50 for registering minors who will reach full age before the election day must not be forgotten. The statute is objected to as requiring illegal taxation because the city or town must bear the expense of the caucuses, and thus taxpayers are made to contribute to the support of a party or parties which they do not approve. The disapproval of a minority does not exempt them from bearing their share of public burdens while they continue to live in a State which they are free to leave. The expense, considered as a whole, is for the purpose of making it easier and more certain that the community shall elect the public officers whom it wants. This is not the less a public purpose that a part of the expenditure necessarily is for the separate convenience of the separate COMMONWEALTH V. EOGERS. SUP. JUD. CT., 1902. 103 groups out of whose action emerges the expression of the public will. The motions to quash set up that the indictments are bad on other grounds beside the supposed invalidity of the statute. It is said that there is a misjoinder of counts. But conspiracy to procure illegal voting and aiding and abetting in illegal voting are " similar in their nature, mode of trial and punish- ment." Commonwealth v. Leach, 156 Mass. 99, 101; Pettes v. Commonwealth, 126 Mass. 242, 245. The latter is punished by imprisonment in jail not exceeding one year, St. 1898, c. 548, sec. 390; the former conformably to the common usage and practice in the State, Pub. Sts. c. 215, sec. 1 (R. L. c. 220, sec. 4). In either case imprisonment might be in the house of correction instead of in the jail. Pub. Sts. c. 215, sec. 3. (R. L. c. 220, sec. 5.) It was not necessary to aver that the different counts were different descriptions of the same offence. The offences intended to be charged were different, and the joinder was permissible at common law and did not depend upon Pub. Sts. c. 213, sec. 18 (R. L. c. 218, sec. 45). Commonwealth v. Ismahl, 134 Mass. 201. We see no injustice and no embarrass- ment in the conduct of their case of which the defendants can complain. It is said that the first count is bad because it does not show how the persons whom the defendants conspired to procure to vote were not entitled to vote. The allegation embraces persons unknown so that the requirement is impossible, and this il- lustrates the fact that such a conspiracy might be completed before any of the persons to be procured had been agreed upon. But it follows from that fact that the particular nature of the disqualification is in no way material to the offence. Therefore it seems to us unnecessary to the defence to require it to be alleged. In United States v. Cruikshank, 92 U. S. 542, the object of the conspiracy was not stated with reasonable cer- tainty. Perhaps it is only another form of words for the same thought to say that the mode of disqualification is a fact one degree more remote than the principal constituent elements of the crime, and that for that reason the disqualification may be alleged in general terms. See cases cited in May v. Wood, 172 Mass. 11, 15; State v. Marshall, 45 N. H. 281, 285, 286. There is no doubt that the count set forth a crime at common law. See Commonwealth v. Sllsbee, 9 Mass. 417; Commonwealth v. Hoxey, 16 Mass. 385; Commonwealth v. McHale, 97 Penn. St. 104 MASSACHUSETTS ELECTION CASES — 1902. 397, 408; Commonwealth v. Waterman, 122 Mass. 43, 57. See further St. 1898, c. 548, sec. 377. It may be worth remarking that Commonwealth v. Boynton, cited in Commonwealth v. Hunt, Thach. Crim. Cas. 609, 640, and in Commonwealth v. Waterman, is not an authority, as it appears from the records that the allegation of conspiracy was merely inducement to an allegation that the goods actually were obtained by the false pretences. Records of Supreme Judicial Court (Vol. 3), 1803, fol. 82, 83a. A similar objection is made to the other counts for abetting in voting persons not entitled to vote. This is urged under the fifth reason of Rogers' motion to quash, viz., that the second count alleges no offence and that the other counts are defective, informal and insufficient, and do not set forth with legal pre- cision any offence known to the law; and under similar reasons in the other motion. The defect, if there is one, is formal and should have been assigned specifically. Pub. Sts. c. 214, sec. 25. Commonwealth v. Donovan, 170 Mass. 228, 235. If we were to con- sider the objection, we should be inclined to regard the allegation as sufficient. In addition to what has been said already, the counts follow the language of the statute. St. 1898, c. 548, sec. 390. Commonwealth v. Connelly, 163 Mass. 539, 541. The allegation is a mere negative. A few persons are entitled to vote at a given place and time. The rest of the world is not. It seems an excess of formality to require a more detailed denial of the specific marks which constitute a qualification to vote. They all are denied by the phrase "not entitled to vote." How- ever it may be in an indictment for unlawful voting (and the reasoning in People v. Neil, 91 Cal. 465, 469, State v. Moore, 3 Dutcher, 105, 110, and the old precedents on the game laws there cited, does not seem to us convincing), we are not prepared to make so strict a requirement in an indictment for abetting, notwithstanding the decision in State v. Tweed, 3 Dutcher, 111. See Commonwealth v. Shaw, 7 Met. 52; State v. Marshall, 45 N. H. 281; 2 Whart. Prec. Ind. (4th ed.) 1019; State v. Doug- lass, 7 Iowa, 413. If necessary, we might refer also to St. 1899, c. 409, sees. 5, 6, 13, 27; Commonwealth v. Dill, 160 Mass. 536, 537. It is argued that the first count is bad because it charges or may charge conspiracy to procure votes which are illegal under either section 377 or section 378, and to abet contrary to section 390. The offences punished in these sections are different, but the conspiracy alleged is one, and properly might be alleged to COMMONWEALTH V. ROGERS. SUP. JUD. CT., 1902. 105 intend them all. Commonwealth v. O'Brien, 12 Cush. 84, 92. Compare Commonwealth v. Mpody, 143 Mass. 177. It is punish- able to conspire to procure any kind of unlawful voting, whether it be the voting of an unregistered voter or the voting of one who had voted in the caucus of another party within a year. The only further observation necessary to be made concerning the motion to quash or the indictment is that by reason of St. 1899, c. 409, sec. 10, it was not necessary to state the place of the offence, and that this disposes of what otherwise would be the most serious trouble with the first count. The next proposition argued for the defendants is that the first count was not proved as laid. This conclusion is reached by an odd perversion of the principle that the offence of con- spiracy is committed as soon as the combination or agreement is made. It is said that the defendants had made their plot before they knew any of the persons named in the first count as the persons to be procured, and more especially that one of those persons was not spoken to until 12 o'clock on the day of the caucus, when all the plans were complete. No doubt a conspiracy was entered into before it was decided who were the men to be used. But that conspiracy was enlarged with each new item that entered into the plan while it still was on foot, just as it might be enlarged in the number of its members, and, when the men gathered in a certain room, the conspiracy became a conspiracy to procure those men to vote. The fact that it was indictable in its more meager and unfledged form did not prevent its being indicted in the shape which it ultimately assumed. We may admit for the purposes of decision that, under Common- wealth v. Harley, 7 Met. 506, and Commonwealth v. Kellogg, 7 Cush. 473, it was necessary to prove the names laid in the count. See Commonwealth v. Meserve, 154 Mass. 64, 73. But if the men were identified before the plot was over, of course it no more matters that they were not identified by name than it matters in the proof of an indictment for an attempt to kill a certain man that the defendant did not know his name when he shot at him. It is next argued that the caucus was not legally held, as the jury were instructed that it must be proved to have been in order to sustain the counts for abetting. This is maintained in the first place because the warden was elected a few minutes before 4 on the ground of a temporary vacancy, whereas the caucus was called for 4 o'clock, and, by section 129, the power to fill vacancies is given only "at a caucus." It was known that 106 MASSACHUSETTS ELECTION CASES — 1902. the regularly elected warden would be absent, so that it would be a strong thing to say that the election was not sufficient when the caucus opened. But at least there was a warden de facto and a meeting at which votes were cast effectively. See Commonwealth v. Sullivan, 165 Mass. 183, 185; Rounds v. Smart, 71 Maine, 380, 387; Paine, Elections, c. 17. Voters are not to be disfranchised without clear words. O'Connell v. Mathews, 177 Mass. 518, 521. Bowers v. Smith, 111 Mo. 45, 55, 56. Paine, Elections, 314, sec. 368. But if the meeting was effective for the purpose for which it was called, fraudulent voting would accomplish the harm which the law seeks to prevent, and it would be absurd to allow it to go unpunished on the ground of informalities which did not make the vote of the caucus void. The same consideration makes the presence of pens outside the guard rails and of unauthorized persons within them, the possible absence of sufficient booths and the delegation of the duty of arranging two or more lines of voters, section 105, immaterial to the case. Bowers v. Smith, 111 Mo. 45; Moyer v. Van De Vanter, 12 Wash. 377, 385; Simons v. People, 119 111. 617; Drogheda Election Petition, 9 Ir. L. T. R. 161. An exception was taken to a refusal to rule that no unfavorable inference should be drawn against Lord, the de facto warden, one of the defendants, because he delayed for half an hour in opening the caucus, if that delay was on account of the enclosures or pens outside the guard rail. There was independent evidence that Lord was in the conspiracy, and that it had been suggested that he should facilitate the carrying off of the ballots, which was one part of the scheme. This he could not do until the ballots were delivered to him at the caucus. Sec. 120. After refusing to open the caucus for some time, he did so at once, at about half past 4, on a whisper from the defendant Winsloe. There was a fair argument that he agreed to the suggested plan, and made the delay in order to give time for the ballots to be carried over to the place where the fraudulent voters were assembled. The ballots arrived there about 5. Further answer to this exception seems unnecessary. Exceptions were taken on the ground that the presiding judge charged upon the facts. We deem it unnecessary to discuss the charge. We are of opinion that it was perfectly fair and sedu- lously avoided expressing the opinion of the judge. A few general observations will dispose of the argument in support of the many exceptions to evidence. The presiding judge rightly ruled that there was sufficient evidence of a conspiracy COMMONWEALTH V. ROGERS. SUP. JUD. CT., 1902. 107 against all the defendants. It was proper to make the statement as the ground for admitting declarations of one as evidence against the others. When a preliminary finding of fact is neces- sary on the part of the judge for such a purpose there is no duty to conceal it from the jury. Commonwealth v. Brown, 14 Gray, 419, 425, 432; Commonwealth v. Scott, 123 Mass. 222, 235. The admissibility of the evidence as against the others, was made by the charge ultimately dependent upon the finding of a conspiracy by the jury, and they were cautioned to use their own judgment. Declarations of the several defendants properly were admitted as against themselves independent of this ruling and before it. Commonwealth v. Ingraham, 7 Gray, 46, 47; Commonwealth v. Hunton, 168 Mass. 130, 132. So far as they might be evidence against the others after a conspiracy was established aliunde, there was no necessary order of proof. Commonwealth v. Smith, 163 Mass. 411, 418; Commonwealth v. Waterman, 122 Mass. 43, 59; Reyina v. Britiain, 3 Cox C. C. 76, 77. It was proper, too, to call for what was said by the defendants after as well as before the conspiracy had been carried out, and then, if irrelevant matters were mentioned in the answer without special objections, to order those matters not to be considered, as the judge would have done in this case but for the objection of the defendants. He cautioned the jury that after the conspiracy had accomplished its end declarations were admissible only against the party making them. The jury were cautioned in every proper way not to consider evidence admitted only as against one when they were dealing with the case of the others. This was all that could be demanded. Commonwealth v. Ingraham, 7 Gray, 46; Commonwealth v. Bingham, 158 Mass. 169, 171. It hardly needs saying that the assumption in a part of the defendants' argument, that all evidence of declarations in conspiracy must be admissible against all, is unfounded. Evidence that fraudulent voters were spoken to by one of the conspirators before all of them had come into the scheme was admissible in connection with the proof that the others did come in and by implication adopted the act. Also the usual way of proving a conspiracy is by showing a series of acts on the part of the several defendants all converging to one point. The district attorney, when certain evidence was objected to, said: "It is the flight of Ryan I want to show." An exception was noted. But without more it is enough to say that the remark was not subject to exception. O'Driscoll v. Lynn & Boston Railroad, 180 Mass. 187; Commonwealth v. McConnell, 108 MASSACHUSETTS ELECTION CASES — 1902. 162 Mass. 499, 503; Commonwealth v. Poisson, 157 Mass. 510, 513. All that was necessary to give was given of the request touch- ing the ignorance of the grand jury of the names of the persons described in the indictment as unknown. See Commonwealth v. Coy, 157 Mass. 200, 215. The court properly left the weight of the testimony of fellow conspirators to the jury. Commonwealth v. Bishop, 165 Mass. 148, 150. It does not appear to us to need argument that there was sufficient evidence of the guilt of the defendant Rogers. The preliminary meetings were in his house, he was present, and agreed to contribute money toward the end, and he helped at the time of the caucus. We have not neglected the consideration of any part of the defendant's argument, but we think the mention of other points and further discussion superfluous. Exceptions overruled. P. J. Doherty and A. E. Burr for Rogers. F. W. Kittredge for Lord. J. F. Sweeney, F. B. Livingstone and G. A. Flynn for Winsloe. S. J. Elder, W. C. Wait and E. A. Whitman for Newmarch. M. J. Sughrne, First Assistant District Attorney, for the Commonwealth. FRITZ V. CREAN. SUP. JUD. CT., 1903. 109 SUPREME JUDICIAL COURT. Jacob Fritz v. Anthony J. Crean. (Reported in 182 Maps. 433.) Franklin, Dec. 1, 1902 — Jan. 7, 1903. Present, Knowlton, C.J., Morton, Lathrop, Hammond and Loring, JJ. Elections. — A warrant in writing for a meeting of a fire district signed by the chief engineer is a sufficient compliance with the provision of R. L. c. 32, sec. 55, that such a meeting shall be called when requested in writing by the chief engineer. Same. — An act creating a fire district provided that it might "adopt by-laws prescribing by whom and how meetings may be called and notified." One of the by-laws of the district provided that "the annual meeting shall be called according to law." The district passed a vote requiring copies of the warrant calling a meet- ing to be posted at various places named, but this vote did not operate as an amend- ment to the by-law because not adopted in the manner required for such an amend- ment. A meeting of the district was notified in accordance with R. L. c. 32, sec. 55, but the vote requiring the posting of copies of the warrant was not complied with. Held, that the meeting was notified properly "according to law" as required by the by-laws. Same. — Under R. L. c. 32, sec. 55, if a declaration by the moderator of a meet- ing of a fire district is necessary in order to complete an election of an officer, a declaration made by tellers in the presence of the moderator and received by the meeting is a declaration by the moderator within the meaning of the statute. Evidence. — Sem.bJe, that where oral evidence of the doings of a meeting of a fire district has been put in without objection, it is too late to take the ground that the declaration by the moderator of the vote of the meeting must appear by the records of the clerk alone, but, if such a record is required, a record, stating that there was a declaration of the election accepted by the meeting, imports a declaration by the moderator, if such a declaration is necessary. Same. — If one who has been declared elected chief engineer at a meeting of a fire district is present at a recount, to guard his interests, he is not estopped thereby from setting up the illegality of the recount. Elections. — Where, as in case of the election of a chief engineer by a fire district under R. L. c. 32, sec. 54, there is no provision for a recount, the original count is final. In such a case the clerk should destroy the ballots, and, if illegally he preserves them, they cannot be used to invalidate the election. Loring, J. This is a petition for a writ of mandamus, brought to enforce the right of the petitioner to the office of chief engineer of the Turner's Falls Fire District. It appeared at the hearing that a meeting of the fire district was held on May 19, 1902, at which the tellers of the meeting reported that the petitioner had received two hundred and sixty-eight votes and the re- spondent two hundred and sixty-one. Subsequently, upon the petition of eleven voters of the district, the registrars of voters of the town of Montague recounted the votes and found and re- 110 MASSACHUSETTS ELECTION CASES — 1903. ported to the clerk of the district that the petitioner had two hundred and sixty-one votes and the respondent two hundred and sixty-five. Thereupon the clerk gave a certificate of election to the respondent, and he has since acted as chief engineer. The respondent offered to show that the count made by the registrars of voters was correct, by producing the original ballots, coupled with evidence that they had remained sealed and not tampered with since the meeting when handled on the recount. It is now admitted that there is no authority for recounting the votes cast at such a meeting, and the legality of the peti- tioner's election is attacked on other grounds. 1. The first ground on which it is attacked is that the meeting was not properly called. It is provided by R. L. c. 32, sec. 55, that the meeting shall be called when requested in writing by the chief engineer, etc. The warrant in case of this meeting was in writing and was signed by the chief engineer. That was sufficient. 2. The second ground of attack is that the meeting was not properly notified. This contention rests on the fact that at some time not stated, prior to the meeting in question, the district had voted under an article "To determine the manner of posting warrants and to transact any other business that may legally come before the meeting," "that copies of the warrant be posted at the Farren Hotel, depot, post office and by publish- ing in the 'Reporter' at least seven days before said meeting." This vote was not complied with in the notification given of the meeting in question. But the act creating the fire district provides that it "may adopt by-laws prescribing by whom and how meetings may be called and notified." St. 1886, c. 266, sec. 11. One of the by-laws of the district provided that "the annual meeting shall be called according to law." The vote in question did not operate as an amendment of the by-laws because it never had been "presented at a regular meeting of the board of engineers" or "received the sanction of the majority of the board of engineers at a subsequent regular meeting," as required by the article in the by-laws of the district as to amending those by-laws. The meeting was notified in ac- cordance with R. L. c. 32, sec. 55, and for that reason was notified in compliance with the by-laws of the district, which adopted the provisions of the general laws. R. L. c. 32, sec. 55. 3. The next contention is that the moderator did not make a declaration that the petitioner was elected. By R. L. c. 32, FRITZ V. CREAN. SUP. JUD. CT., 1903. Ill sec. 55, the moderator of the fire district has the powers of the moderator of a town meeting, and by R. L. c. 11, sec. 332, it is provided that the moderator of the town "shall . . . make public declaration of all votes." In the case at bar the declara- tion was made by the tellers in the presence of the moderator, and was received by the meeting. Assuming without deciding that a declaration by the moderator was necessary, we think that that was a declaration by the moderator within the statute. See in this connection Putnam v. Langley, 133 Mass. 204, 205. 4. The next objection is that the record of the clerk of the district does not show that a declaration of the election of the petitioner was made by the moderator. The record of the clerk is as follows: "The tellers made the following report: Total vote cast, 530; for chief engineer, Jacob Fritz has 268, Anthony J. Crean has 261. The ballots were sealed by Lucas J. March, moderator, and D. F. Daly, clerk, and at 11.06 p.m. the meeting voted to dissolve. The clerk was authorized to care for the ballots by the moderator. Daniel F. Daly, Clerk." As parol evidence of the doings of the meeting seems to have been put in without objection, the respondent would seem to have waived his right to have the matter of the declaration having been made determined by the record alone, as to which see Stoughton School District v. Atherton, 12 Met. 105, 113. But however that may be, we think that the record is a sufficient record of the election of the petitioner. It states that there was a declaration of the election accepted by the meeting; that imports a declaration by the moderator, if such a declaration is necessary. 5. The next objection is that the petitioner is estopped to contest the recount because he was present at it. We think that the petitioner could attend, when he was notified that it was proposed without right to recount the votes, to guard his interests, without thereby being estopped to set up the illegality of the recount. As no recount is provided for, the action of the clerk in preserving the ballots was illegal, and the result de- clared at the meeting cannot be affected by the recount made by the registrars of voters. For the same reason the offer to prove that the count made in the meeting was erroneous was rightly refused. Where no provision is made for a recount, the original count is final and binding upon the court as well as upon others. See Opinion of the Justices, 117 Mass. 599, 600. As soon as the meeting dissolved, no recount being possible, the ballots 112 MASSACHUSETTS ELECTION CASES' — 1903. should have been destroyed, as is provided in case of elections in cities and towns. R. L. c. 11, sec. 241. Writ to issue. F. L. Greene, W. A. Davenport and A. D. Flower for the respondent. D. Malone for the petitioner. FLANDERS V. ROBERTS. SUP. JUD. CT., 1903. 113 SUPREME JUDICIAL COURT. Parkman B. Flanders ». William W. Roberts and Others. Same v. William W. Roberts. Same v. William W. Roberts and Others. Same v. Willard H. Hunkins and Others. (Reported in 182 Mass. 524.) Essex, Jan. 12, 1903 — Jan. 13, 1903. Present, Knowlton, C.J., Morton, Hammond, Loring and Braley, JJ. Mistake in marking Official Ballot. — Under R. L. c. 11, sec. 238, a cross marked on a ballot in the square opposite a blank, and next below the square opposite the name of a candidate, cannot be counted as a vote for that candidate, although the person who marked it voted by a cross in the proper square for each of the other nominees of the same political party, eleven in number, whose names were on the ballot. Return of Votes, Record. — The provision of R. L. c. 11, sec. 267, relating to re- counts of ballots cast at a city or town election, that "the records so amended shall stand as the true records of the election," does not take away the jurisdiction of this court to correct errors of law appearing upon the face of the record. Mandamus. — Mandamus will lie against the registrars of voters of a city com- manding them, upon a recount under R. L. c. 11, sec. 267, not to count certain bal- lots cast for mayor on which the voter's choice cannot be determined, to make and sign a statement of the questions raised by the application for a recount of the votes cast for mayor, omitting the ballots thus defective as votes for any person for that office, and to return this statement to the city clerk. Registrars of Voters. — In this case it was found unnecessary to determine whether the action of a board of registrars of voters in recounting votes under R. L. c. 11, sec. 267, is purely ministerial, so that certiorari will not lie to correct an error in their returns. Four petitions, filed in December, 1902, one for a writ of certiorari and three for writs of mandamus addressed to the city clerk, the board of registrars of voters and the board of alder- men of the city of Haverhill, by which the petitioner sought to be declared the duly elected mayor of that city. The cases were heard upon the petitions, and demurrers and answers thereto, by Loring, J., who reserved them for the consideration of the full court. If the petitioner was entitled to the relief prayed for, and if the court had jurisdiction in any form of proceeding or pleading to afford it, the necessary amend- ments, orders and decrees were to be made; otherwise, the petitions were to be dismissed. G. F. Williams for the petitioner. B. B. Jones (J. H. Pearl with him) for the respondents. 114 MASSACHUSETTS ELECTION CASES — 1903. Loring, J. The main question here is whether the registrars of voters were wrong in counting eighteen ballots for the Re- publican candidate for mayor. On these eighteen ballots there was a cross in the square opposite the blank space left for the insertion of a name of a candidate whose name is not printed on the ballot, and the name of the Republican candidate was just above this blank. We are of opinion that the registrars of voters were wrong in counting those ballots as they did. The question whether these ballots were to be counted by the registrars of voters as votes for the Republican candidate or not was a question to be determined from what appears on the face of the ballot and not on evidence aliunde. The rule to be applied is this: If the intent of the voter can be fairly determined, effect shall be given to that intent and the vote counted in accordance therewith. This is the rule originally laid down in Strong, Petitioner, 20 Pick. 484, and continued under the Australian ballot system in acts which are now R. L. c. 11, sec. 238, providing that if the voter's "choice cannot be determined, his ballot shall not be counted;" and this has been recognized in this Commonwealth in all the reports of com- mittees of the Legislature on which it has acted in deciding questions of this kind involved in the election of its members. See also Woodward v. Sarsons, L. R. 10 C. P. 733. It must be taken to be established that where a cross is put in the square opposite the blank space left for the insertion of a name of a candidate by the voter, and nothing more appears, the ballot is not to be counted as a ballot for the candidate whose name is printed next above that space. This was so decided by this court in 1901. O'Connell v. Mathews, 177 Mass. 518. It had been adopted previously in 1897, by both branches of the General Court of the Commonwealth, following the action of the Governor's Council and of the election commis- sioners of the city of Boston in Sullioan v. Allen, Mass. Election Cases (Ed. 1885-1897), 99. In 1896 a similar decision had been made by the Massachusetts House of Representatives in Morgan, Petitioner,' Mass. Election Cases (Ed. 1885-1902), 85. In that case the mark was opposite the space above the printed name of the first candidate outside of the space for those candidates, and immediately over the column of the squares for the crosses. The same conclusion has been reached in Pennsylvania. In re Flynn, 181 Penn. St. 457. It is sought to take this case out of the rule which has now become established, because in the case at bar the voter in case FLANDERS V. ROBERTS. SUP. JUD. CT., 1903. 115 of each of the ballots in question voted by a cross in the proper square for the republican nominee for each one of all the other offices, eleven in number, on the ballot. But the rest of each of the ballots in question shows, if it shows anything, that the voter knew exactly what he had to do, if he wanted to vote for a candidate. What he has done is to throw a ballot for a blank. We may conjecture that this was a mistake, and that it is not what he intended to do. But the question is not one of conjecture, but of what the ballot shows that he intended to do. The ballot shows that he cast a blank vote for mayor, and we must hold that to have been his in- tention. The same conclusion was reached under similar cir- cumstances by the House of Representatives of the Common- wealth in Morgan, Petitioner, Mass. Election Cases (Ed. 1885- 1902), 85. It is to be remarked that the earlier acts in Massachusetts did not require the cross to be put in the square (Sts. 1888, c. 436, sec. 23; 1889, c. 413, sec. 23) as the present act does. R. L. c. 11, sec. 227 (re-enacting Sts. 1893, c. 417, sec. 162; 1898, c. 548, sec. 224). The second question raised by the respondents is the right of this court to correct this error, and they have argued that the court is neither a canvassing board nor a returning board. That certainly is true, but still we are of opinion that we can correct the error. We have jurisdiction to correct errors of law appearing on the face of the papers made by a returning board in counting a ballot as a vote for a candidate for office which is not a vote for that candidate. The jurisdiction was estab- lished by Strong, Petitioner, 20 Pick. 484, and it still exists unless it has been taken away by statute. The respondents contend that it has been taken away by R. L. c. 11, sec. 267. Their contention is that the words "and the records so amended shall stand as the true records of the election" prevent this court from interfering to correct an error of law, if one was made, in the recount of the votes. The phrase relied on is found for the first time in St. 1863, c. 144, sec. 3; after that it is found in Sts. 1874, c. 376, sec. 42; 1876, c. 188, sec. 4; Pub. Sts. c. 7, sec. 36; Sts. 1884, c. 299, sec. 31; 1886, c. 262, sec. 1; 1890, c. 423, sec. 104; 1893, c. 417, sec. 207; 1898, c. 548, sec. 264. The original act, St. 1863, c. 144, sec. 3, and each of the subsequent acts apply to elections to the House of Representatives of the United States, to elections to both branches of the General Court of the Commonwealth, 116 MASSACHUSETTS ELECTION CASES — 1903. and to many city councils which by their charters are final judges of their own elections. The Legislature could not constitutionally have provided that the statutory recount provided for in these acts should preclude the national House of Representatives or either branch of the General Court of the Commonwealth from dealing with any questions passed upon by the board whose duty is was to make the recount, and it cannot be held that the Legislature intended by one and the same clause to preclude this court from reviewing the action of the board for errors in law in case of officers whose election is not covered by the Constitution, when it is admitted that as a matter of con- struction in view of the provisions of the Constitution it has not made the action of that board final in case of the members of the national House of Representatives and the members of the General Court. The reason for the clause is plain: The original return is made by one person or board of persons, namely, the precinct officers, the recount by another, the registrars of voters, and the amendment by a third person, the city or town clerk. All that the clause means is that the amendment of the return, although not made by the original maker of the return nor by the recounting board, shall stand as amended under the section when made by the third person. Moreover, the statutes which provide for the preservation of ballots contemplate their being kept until the contest is ended, and not merely until a recount has been had. St. 1863, c. 144, sec. 3. See Opinion of the Justices, 117 Mass. 599, 601. This again negatives the idea that the recount is final, and, without tracing this statute through all its re-enactments, it is the law to-day. R. L. c. 11, sec. 266. Apart from the fact that the clause here in question is in con- trast with that under consideration in Attorney-General v. Drohan, 169 Mass. 534, as was pointed out in that opinion at page 538, the matter sought to be submitted to the court there was a question of an entirely different kind from that in question in the case at bar. In that case the Democratic city committee undertook to pass upon the question of fact that the plaintiffs were elected by votes of Republicans at the Democratic caucus in question, and the sole question was whether the Democratic city committee, not whether this court, was ousted of jurisdic- tion. The only question submitted to the court was whether the action of the board to recount or that of the committee was FLANDERS V. ROBERTS. SUP. JUD. CT., 1903. 117 final. It was not a case where this court was asked to correct an error of law made by the recounting board. $$ The contention that the Legislature was ousted of power to reverse the determination of the recounting board was made and overruled in Shepard v. Sears, Mass. Election Cases (Ed. 1885-1897), 30. The respondents' next contention is that the mayor as the presiding officer of the board of aldermen is a member of the board within the provisions of its charter, St. 1867, c. 251, sec. 9, which makes the aldermen "judge of the elections of its own members," and that the action of that board declaring the republican candidate to be elected mayor under R. L. c. 11, sec. 269, is final within Peabody v. School Committee of Boston, 115 Mass. 383. They contend that this power of the aldermen is not only not revoked, but is continued by R. L. c. 11, sees. 266, 269. They also contend that since by R. L. c. 8, sec. 5, cl. 10, "'the words "mayor and aldermen" mean board of aldermen except as applied to appointments,' it follows that the board of aldermen were the judges of the election of the mayor and aldermen, and, as above stated, the Revised Laws do not modify their powers in that respect." We are of opinion that although the aldermen of Haverhill are the final judges of the election of aldermen, they are not the final judges of the election of the mayor. Fritz v. Crean, ante, 433, relied on by the respondents, was not a case where there was an error of law apparent on the face of the papers, but a case where it was contended that there had been an error of computation in the counting of the ballots in the election of an officer where the result of the election was made and accepted by it, and where there was no provision of law for the preservation of the ballots or for a recount. We are of opinion that the petitioner is entitled to a remedy by mandamus. He cannot maintain both mandamus and certiorari. For that reason it is not necessary to consider whether the action of the board of registrars in recounting votes under R. L. c. 11, sec. 267, is not purely ministerial. See in that connection Clark v. Board of Examiners, 126 Mass. 282; Luce v. Board of Examiners, 153 Mass. 108. If the action of the board under R. L. c. 11, sec. 267, is ministerial, certiorari does not lie to correct errors made by them when acting under that section. Locke v. Lexington, 122 Mass. 290; Old Colony Railroad v. Fall River, 147 Mass. 455, 462. 118 MASSACHUSETTS ELECTION CASES — 1903. In the petition for a mandamus against the registrars of voters, an order may issue commanding them not to count said eighteen ballots as votes for the Republican candidate for mayor, and to make and sign a statement of the questions raised by the applications for a recount of the votes cast for mayor, omitting said ballots as votes for any person for that office, and to return said statement to the city clerk. And it further appearing that the ballots have been im- pounded and are now in the custody of the clerk of this court for the county of Essex, an order may be entered directing said clerk to deliver said ballots to the registrars of voters, and directing the registrars of voters to seal each envelope with a seal provided for the purpose, and certify on each envelope that the same has been opened and again sealed in conformity to law, and to return said envelopes to the city clerk. The petitions for mandamus against the city clerk and the board of aldermen may await further applications on the part of the petitioner if these officers fail to perform their duty on the registrars of voters correcting their count and sending a state- ment of the result to the city clerk. So ordered. ATTORNEY-GENERAL V. HUTCHINSON. SUP. JUD. CT., 1904. 119 SUPREME JUDICIAL COURT. Attorney-General v. John F. Hutchinson and Others. (Reported in 185 Mass. 85.) Middlesex, Nov. 16, 1903 — Feb. 25, 1904. Present, Knowlton, C.J., Mor- ton, Lathrop, Barker and Braley, JJ. Elections. — Under St. 1898, c. 548, sec. 335, 336, 361, a town, which has adopted the use of official ballots for the election of town officers, may, at a meeting held more than thirty days before the next annual meeting, vote to abandon the method of electing selectmen provided by section 335, theretofore adopted by the town, and return to its former method of electing annually three selectmen to serve for one year. Information, in the nature of quo warranto, filed by the At- torney-General on March 12, 1903, to determine by what authority the respondents Hutchinson, Taylor and Spaulding held the offices of selectmen of the town of Lexington, and praying for an order to set aside their election as such selectmen. The case came on to be heard before Morton, J., and was reported by him for determination by the full court upon the pleadings and the facts reported, such judgment or decree to be entered as the pleadings and the facts should require. H. Albers for the plaintiff. H. G. Allen for the defendants. Braley, J. Prior to the enactment of St. 1878, c. 255, towns at their annual meeting elected a board of selectmen whose term of office was for a period of one year. By that act, any town which accepted its provisions might at any annual meeting choose them, so that the tenure of office of each member of the board would be for a term of three years. If for any reason a town adopting this method desired to return to the old system, it might do so at any annual meeting. Pub. Sts., c. 27, sees. 64-69. Subsequent legislation revising and codifying the laws relating to elections substantially re-enacted this provision. Sts. 1893, c. 417, sec. 267; 1898, c. 548, sec. 335, now R. L., c. 11, sec. 339. When the town of Lexington at the meeting held in January, 1900, voted to exercise the choice given by these statutes of electing selectmen, and voted "that at the annual meeting in 120 MASSACHUSETTS ELECTION CASES — 1904. March of the current year the town shall elect one selectman for the term of one year, one for the term of two years, and one for the term of three years, and that at each annual meeting thereafter it shall elect one selectman for the term of three years," it legally decided to abandon the old system of tenure of such officers and adopted the new. Between the time when towns were given this option within certain limits of regulating the term of office of selectmen, and the date of the vote making the change, the General Court had entered upon a course of legislation by which the method of preparing for and conducting State, city and town elections was radically changed. Sts. 1888, c. 436; 1889, c. 413; 1893, c. 417; 1898, c. 548; R. L. c. 11. Ballots to be used in voting at State and city elections were to be printed and distributed at the public expense, and the nomination of candidates for office, and the preparation, form and delivery of ballots, and the manner of voting, were marked out in great detail. No provision, however, was made in the first two acts, which referred solely to State and city elections, for regulating the election of town officers, and the method of conducting such an election remained the same as before. The next year the Legis- lature by a separate act extended these provisions to town elec- tions; provided any town desired to accept the act, and make its choice manifest by adopting its provisions, otherwise the method was left unchanged. St. 1890, c. 336. By this statute a change was made in the manner of conducting the election of town officers only in those towns which duly accepted it. Under this act it follows that towns must be divided into two classes, — those that accept, and, having accepted, must use the ballot therein prescribed, and towns which did not accept, and remained under the original system. The town of Lexington, by its vote at the town meeting held Feb. 21, 1891, had accepted the provisions of St. 1890, c. 386, and thereby placed itself in the class of towns to prepare for and conduct the election of town officers in the manner therein provided. And when it voted to make the term of office of its selectmen three years, it exercised this privilege as a town which had used the official ballot in voting for such officers for nearly nine years. By the act, after it was accepted, and the "system or manner of electing any town officers" had been determined, no return to the former system could be made, unless the meeting at which ATTORNEY-GENERAL V. HUTCHINSON. SUP. JUD. CT., 1904. 121 the change was decided upon was held at least thirty days before any annual town election at which town officers were to be elected, though in towns which still continued under the former system of voting this change as to their office could be made at the annual meeting at which they were to be elected. Sts. 1890, c. 386, sec. 2; 1898, c. 548, sees. 335, 336, 361. If the various sections which embrace previous . legislation in whole or in part, and which make up the codification of former acts in St. 1898, c. 548, are examined and compared, so far as they relate to the election of town officers, nothing appears that is so inconsistent or repugnant but that full effect can be given to each provision. The intention of the Legislature is plain. It is important that the voters should know whether a candidate for the office of selectman is to be elected for one or three years, and in towns which use ballots prepared at the public expense, and where the election is conducted in the same manner as State and city elec- tions, some time is necessary to prepare and distribute the ballots before the election takes place. For this reason, a limit of thirty days before the next annual election was fixed as the time after which the length of the term of officers to be then elected could not be changed; but there is no such requirement in towns that do not use the official ballot. The town meeting of Jan. 28, 1901, was held more than thirty days before the next annual meeting, and when the town voted under Article 2 of the warrant, "that at the annual town meet- ing in March, 1901, the town shall elect one selectman for the term of one year, and in March, 1902, shall elect two selectmen for the term of one year, and in March, 1903, shall elect three selectmen for the term of one year, and thereafter shall annually elect three selectmen for the term of one year, in the manner in which the selectmen have been elected prior to the election of March 5, 1900," it had thereby legally voted to choose its board of selectmen so that the tenure of each member should be only for one year. And the three selectmen thereafter elected would each serve for that period. At the annual meeting following this action by the town, the respondent, John F. Hutchinson, was elected accordingly a selectman for the term of one year. For reasons not necessary to be stated he afterwards resigned, and, on May 20, 1901, at a meeting duly called to fill the vacancy, and under an article in the warrant, "to choose by ballot one selectman to fill a vacancy for the term ending March, 1904," he was declared 122 MASSACHUSETTS ELECTION CASES — 1904. elected a selectman for the term ending March, 1904, and since that time has filled and now claims to hold the office. The other respondents now in office were each chosen as select- men for the term of three years. By the vote of Jan. 28, 1901, which remained unchanged, the town had decided thereafter to elect these officers for the term of one year, and it must be held that the several respondents have no title to the office. It follows that there must be judgment of ouster. So ordered. ATTORNEY-GENERAL V. CAMPBELL. SUP. JUD. CT., 1906. 123 SUPREME JUDICIAL COURT. Attorney-General v. Francis A. Campbell. (Reported in 191 Mass. 497.) Suffolk, March 9, 1906 — May 16, 1906. Present, Knowlton, C.J., Morton, Lathrop, Loring and Braley, JJ. Elections. — If the Governor has ordered that a special election be held to fill a vacancy in the office of a clerk of court at the same time as the annual State election, and a candidate for the office is nominated at the caucus for the nomination of State officers held on the same day on which the precept for the special election is issued, so that the provisions of R. L. c. 11, sees. 89, 90, in regard to the calling of a caucus for a special election are not complied with, and if the nomination is cer- tified by the Secretary of the Commonwealth and the name goes unchallenged upon the printed ballot, and the candidate is elected, the irregularities in regard to the making of the nomination do not invalidate his election. Same. — Under R. L. c. 11, sec. 149, when a certificate of a nomination for a State office has been filed with the Secretary of the Commonwealth, and "is in apparent conformity with law," it is "valid unless objections thereto are made in writing" and are filed in the manner prescribed in said section. Information in the nature of a quo warranto, filed by the Attorney-General on May 27, 1905. The case came on to be heard before Lathrop, J. who at the request of the parties reserved it for determination by the full court upon the pleadings and an agreed statement of facts, such order to be made as order and justice might require. F. P. Cabot (F. T. Field, Assistant Attorney-General, with him) for the petitioner. N. Matthews (R. Spring with him) for the respondent. Knowlton, C.J. This is an information in the nature of a quo warranto to determine by what authority the respondent holds the office of clerk of the Superior Court for civil business in the county of Suffolk. Joseph A. Willard was elected to that office for the term of five years from the first Wednesday of January, 1902. On Aug. 14, 1904, he died. On Sept. 3, 1904, the justices of the Superior Court, acting under R. L. c. 11, sec. 277, appointed Francis P. Ewing Mr. Willard's successor, and he duly qualified and entered upon the duties of the office. On September 27 of the same year the acting Governor of the Commonwealth issued a precept to the board of aldermen of 124 MASSACHUSETTS ELECTION CASES — 1906. Boston, reciting that by reason of the death of Mr. Willard a vacancy then existed in the office, and directing them to notify and summon the voters to fill the vacancy for the remainder of the term of five years from the first Wednesday of January, 1902, by an election on the eighth day of the following November, which was the day prescribed by the statute for the annual State election. The aldermen acted upon this precept in the usual way, and, on the day appointed, the respondent was elected by a vote of 46,166 ballots cast for him, 45,835 being cast for Henry Bellew, and 2,759 cast for other persons. The respondent took the prescribed oath and entered upon the duties of the office. The Attorney-General contends that he was not legally elected, first, because the appointment of Mr. Ewing by the justices was in legal effect for the remainder of the term for which Mr. Willard was elected, so that there was no vacancy to be filled by election, and secondly, because the precept for the election was not seasonably issued, and the proceedings which the law requires to render an election valid were not had in pursuance of it. The last part of this contention is founded on the fact that, on the day when the precept was issued, caucuses were being held for the nomination of officers and the election of delegates to conventions to nominate officers, to be voted for at the election on November 8, and no caucuses were held for that purpose after the day on which the precept was issued. Article 19 of the Amendments to the Constitution of Massa- chusetts, which was ratified in 1855, provides for the election by the people of certain officers who previously had been appointed by the Governor, including clerks of the courts. By this amend- ment the Legislature was required to prescribe by general law for the election of these officers. By the St. of 1856, c. 173, sec. 2, the Legislature provided for the election of clerks of the courts, with a special requirement that in Suffolk County, instead of electing a single officer who should be clerk of the Supreme Judicial Court and clerk of the Superior Court for that county, as in other counties one person was to be elected to be clerk of the Supreme Judicial Court and clerk of the Court of Common Pleas, the voters should elect a clerk of the Supreme Judicial Court and a clerk of the Superior Court. The Superior Court of the county of Suffolk had been created by St. 1855, c. 449, to take the place of the Court of Common Pleas in that county. In the St. 1856, c. 173, the clerk of the Superior Court of the county of Suffolk was treated in the same way, in all particulars, as the clerks of the courts were treated in their ATTORNEY-GENERAL V. CAMPBELL. SUP. JUD. CT,, 1906. 125 relation to the Court of Common Pleas in other counties. All of the clerks of the different courts referred to in the act were removable by the justices of the Supreme Judicial Court, or a majority of them, and the judges of the several courts, or a majority of them, were authorized, in case of a vacancy, to appoint a person to the office to hold it until the next annual election, at which time the office for the unexpired term was to be filled by a vote of the people. In case of a vacancy in the office of clerk of any of these courts, the proceedings for filling it under this statute would have been such as were taken in the present case. By the St. 1859, c. 196, the Superior Court was established to take the place of the Court of Common Pleas throughout the Commonwealth. This statute provided for the election of clerks of the Superior Court, including one for civil business and one for criminal business in Suffolk County, who were not to be clerks of the Supreme Judicial Court, as were the clerks of the Superior Court in other counties. In other respects the statute treats clerks of the Superior Court in Suffolk County as it treats clerks of the courts in other counties. We have these laws compiled in the General Statutes of 1860, and by c. 121, sec. 7, the power of the justices to appoint a clerk of the Superior Court when there is a vacancy in that office in the county of Suffolk is clearly stated. The appointee is to "hold the office until the next annual election, or until another is elected or appointed in his stead." The provision for elec- tions to fill vacancies is found in Gen. Sts. c. 10, sec. 13, which deals with clerks of the courts and other officers. There can be no doubt that a clerk of the Superior Court for Suffolk County is included in the term "clerk of the courts," found in section 10 and referred to in section 13 of this chapter, for there is no other provision for the election to fill a vacancy in this office, which is referred to in Gen. Sts. c. 121, sec. 7. These provisions of the General Statutes were continued without change in the Pub. Sts. c. 10, sees. 1, 3, 10, 13, and c. 159, sec. 7. They were left unaffected by the St. of 1890, c. 423. See sees. 188, 190, 197, 200. The election laws were again revised in 1893, but no changes were made that materially affect this case. St. of 1893, c. 417, sees. 146, 258, 251, 218, 222. We have no doubt that the term "clerk of the courts," in section 218, was intended to include the clerks of the Superior Court in the county of Suffolk, as the same terms includes them in former statutes. In the revision and codification contained in the St. of 1898, 126 MASSACHUSETTS ELECTION CASES — 1906. c. 548, we find, at the end of section 274, authority to the justices, in case of a vacancy in the office of clerk of the Superior Court for the county of Suffolk, to "appoint a clerk," without an express statement of the term for which they are to make the appointment. But here, again, we find, in the earlier part of this section and in section 277, express provisions for filling a vacancy in the office of clerk of the courts by an election "at the next annual state election for which precepts can be season- ably issued." In this statute, as in the former statutes, the term "clerk of the courts" includes the clerks of the Superior Court in Suffolk County. It follows that the appointment by the justices, in the present case, which referred to the statute without stating the length of the term, was only until the next annual election for which precepts could be seasonably issued. The principal provisions of the act last cited are found, without material change, in the R. L. c. 11, sees. 211, 277, 280, 282, 318. As there was plenty of time after the decease of Mr. Willard to issue a precept seasonably, for an election to fill the vacancy at the next annual State election, there is no doubt that it was the duty of the Governor to issue such a precept. The remaining objections to the election are all founded on the irregularity as to the nomination of candidates. It is said that the precept was issued too late. It is true that the caucuses were in progress before it was issued, and the delegates elected at these caucuses put the respondent in nomination. A certifi- cate of his nomination was filed with the Secretary of the Commonwealth, which was in proper form, and his name was put upon the official ballot. By the R. L. c. 11, sec. 149, it is provided that, "when certificates of nomination and nomina- tion papers have been filed, and are in apparent conformity with law, they shall be valid unless objections thereto are made in writing." Objections may be filed and a hearing may be had before the State Ballot Law Commission. No objection was made to the certificate or to the nomination in any form at any time. This fact, of itself, in connection with the statute, should make it impossible to set aside the election for irregu- larities in making the nomination. The precept was not issued too late to allow nominations to be made properly. This was a special election to be held, by direction of the Governor, for a special purpose. Authority for it rested on the special precept. It was to be held, by virtue of the statute, at the same time as the annual State election. ATTORNEY-GENERAL V. CAMPBELL. SUP. JUD. CT., 1906. 127 The officers to be elected at the annual State election are prescribed by statute. R. L. c. 11, sees. 211, 318. The election of any other officer on the same day to fill a vacancy is a special election. In the R. L. c. 11, sec. 87, the nomination of can- didates for special elections, who are to be voted for at the annual State election, is a subject of exception to the pro- visions as to the time for holding caucuses with a view to the nomination of other candidates to be voted for at the same time. As this was a special election, the caucuses relative to it should have been called under the R. L. c. 11, sees. 89, 90, which provide that they "shall be held at such time and place and subject to such reasonable notice as the political committee . . . may determine." This committee neglected to issue a call for such a caucus, and this was an irregularity. The nomination made by the delegates chosen at the caucus held on the day when the Governor's precept was issued was certified, and went unchallenged upon the official ballot. Does that fact render the election invalid? We are of opinion that the provision already referred to, in R. L. c. 11, sec. 149, answers the question in the negative; but if there were no such provision the result would be the same. The people must be presumed to have expressed their will by their ballots. We are of opinion that, while the provisions as to holding caucuses for the nomination of candidates and as to the filing of nomination papers are binding upon the officers for whose guidance they are intended, they may be disregarded in determining the validity of a subsequent election, if it plainly appears that the will of the majority of the electors is fairly expressed by their ballots. It has been so held in similar cases in this Commonwealth. Strong, Petitioner, 20 Pick. 484; Commonwealth v. Smith, 132 Mass. 289; Blackmer v. Hildreth, 181 Mass. 29. In the last of these cases there was a failure to comply with the statute in regard to the nomination papers, and it was held that the irregularities did not invalidate the election. In referring to these statutory preliminaries, Mr. Justice Hammond said, in the opinion of the court: "But with the preparation of the ballot the influence of these provisions ends. If there be ir- regularities like those in this case they do not accompany the ballot to taint it in the hands of the voter. This view of the statute gives due weight and scope to the provisions in question, and preserves the sanctity of the right of suffrage, and its free and honest exercise. To hold otherwise would be to lose sight 128 MASSACHUSETTS ELECTION CASES — 1906. of the purpose for which these provisions were made, namely, to provide the method and time for the preparation of the ballot, and would subject our elections to intolerable and per- plexing technicalities in no way material to the substantial merits of the controversy, or to the freedom and result of the action of the voters. Its natural tendency would be to thwart rather than to secure a true expression of the popular will." A similar disregard of preliminary requirements and other technicalities, in giving effect to the plainly expressed will of the people at elections, has been shown in many of the decisions of other States. People v. Peck, 11 Wend. 604; People v. Wood, 148 N. Y. 142; People v. Wilson, 62 N. Y. 186; People v. Hartwell, 12 Mich. 508; State v. Gostze, 22 Wis. 363; Cleland v. Porter, 74, 111. 76; Supervisors of DuPage County v. People, 65 111. 360; Hoxsie v. Edwards, 24 R. I. 338; Bowers v. Smith, 111 Mo. 45; State v. Doherty, 16 Wash. 382. We are of opinion that the precept of the Governor was seasonably issued, and that the irregularities in regard to making the nominations did not invalidate the election. Information dismissed. ELDREDGE V. SELECTMEN, CHATHAM. SUP. JUD. CT., 1906. 129 SUPREME JUDICIAL COURT. Nathaniel A. Eldredge v. Selectmen of Chatham. (Reported in 192 Mass. 409.) Suffolk, May 16, 1906 — June 19, 1906. Present, Knowlton, C.J., Morton, Lathrop, Braley and Sheldon, JJ. Recount of Votes. — Under R. L. c. 11 sees. 266, 267, except in towns where the official ballot is used or where the officers are "voted for on one ballot," there can be no recount of the votes cast for an officer of a town after the result of the elec- tion has been announced and recorded and the meeting has been adjourned. Petition, filed March 5, 1906, by Nathaniel A. Eldridge of Chatham for a writ of mandamus addressed to Meriton E. Nickerson, Alvin Z. Atkins and Oliver E. Eldredge, acting as selectmen of that town, commanding the respondents Nickerson and Atkins to recognize the petitioner as a selectman and mem- ber of their board in place of the respondent Eldredge, and commanding the respondent Eldredge to refrain from intruding himself as a member of that board or doing any act as such member. The case came on to be heard upon the petition and answers before Hammond, J., who reported it for determination by the full court, such action to be taken as law and justice might require. The justice made the following findings: — I find that at the town meeting the tellers duly appointed by the moderator reported that for the office of selectman, assessor and overseer of the poor the petitioner received one hundred and fifty-two votes and the respondent one hundred and forty- nine votes, and that thereupon the moderator announced that the petitioner was elected and the records of the clerk were made up accordingly and were approved before the meeting adjourned; and that upon such adjournment no question was made of the petitioner's election. As to the ballots I find that they were tied and carefully kept together, but not placed in a sealed envelope, and at the close of the announcement by the moderator were delivered by one of the tellers into the possession of the town clerk, who retained them until they were delivered to the board of registrars 130 MASSACHUSETTS ELECTION CASES — 1906. for a recount. I find that the recount was carefully conducted and that the petitioner was represented by counsel, who at the close of the recount said he was satisfied, and suggested in substance to the registrars that their certificate of the result of the recount should close with a statement that the town records should be amended in accordance therewith, but I do not find that any of the rights to insist upon the invalidity of the recount were waived either by the petitioner or by his counsel. I find that the registrars had before them all the ballots and none others which were cast at the election, and, if it be material, I find that the recount shows the true result of the election, namely, that the petitioner had only one hundred and fifty-one votes, while the respondent had one hundred and fifty-two votes. I find that the petition for the recount was not sworn to by any of the subscribers thereto, but only by the respondent, Oliver E. Eldredge, and that the town clerk before whom it was sworn was not a justice of the peace nor a notary public, but was town clerk and a member of the board of registrars. At the hearing the petitioner contended that the declaration by the moderator was the official declaration of the result of the election; that there was no provision in law for the recount of votes cast at such an election, and, moreover, that even if there was, the petition was not sworn to by the right persons or before the proper officer. The respondents contended that the recount was in accordance with law, and that the result was the legal result of the election. C. Bassett and F. Ranney for the petitioner. H. A. Harding for the respondents. Knowlton, C.J. At a meeting of the voters of the town of Chatham for the election of town officers, after the votes had been counted it was announced by the moderator that the petitioner had received one hundred and fifty-two votes for the office of selectman, assessor and overseer of the poor, and the respondent, Oliver E. Eldredge, had received one hundred and forty-nine votes. The petitioner was then declared elected, and due record was made accordingly. Afterwards he took the oath of office and entered upon the performance of his duties. Upon these facts it would appear that he was duly elected, and he would be entitled to hold the office throughout its term if there were nothing to deprive him of the right. ELDREDGE V. SELECTMEN, CHATHAM. SUP. JUD. CT., 1906. 131 Subsequently measures were taken to obtain a recount of the ballots. A recount was made by the registrars of voters. They found that the respondent, Eldredge, had received one hundred and fifty-two votes, and the petitioner only one hundred and fifty-one votes, and the records of the town were amended ac- cordingly. The respondent, Eldredge, has been recognized by the other respondents as duly elected, and is now in the per- formance of the duties of the office. The questions are whether such a recount was authorized by the statute, and whether this recount was inaugurated and conducted in accordance with the provisions of law, so as to deprive the petitioner of the office to which he was regularly declared elected at the town meeting. As proceedings for a recount of votes are strictly statutory, they are of no effect unless they are authorized by the statute and begun and conducted as the statute provides. The town did not use the official ballot, and the town clerk, selectman, asses- sors, treasurer, collector of taxes and school committee were not voted for on one ballot. It is only when one or the other of these conditions exists that the statute provides for en- closing the ballots in envelopes and preserving them. R. L. c. 11, sees. 239, 345. Under the R. L. c. 11, sees. 266, 267, when an application for a recount of votes is made, "the enve- lopes containing the ballots, sealed," are to be transmitted by the town clerk to the registrars of voters, who are to "open the envelopes, recount the ballots and determine the questions raised." These sections, which are the only ones providing for a recount of votes after an election of town officers, are appli- cable only to those cases where the statute requires the ballots "to be publicly enclosed in an envelope and sealed up with the seal provided for the purpose." It follows that, except in towns where the official ballot is used, or where the officers above mentioned are "voted for on one ballot" no recount of votes can be had after the result of the election has been announced and recorded and the meeting has been adjourned. This view is strengthened by reference to similar provisions of earlier statutes. St. 1886, c. 262, sec. 2; St. 1886, c. 264, sec. 11; St. 1890, c. 423, sees. 97, 226; St. 1893, c. 417, sees. 174, 208, 276. It therefore becomes unnecessary to consider the other alleged defects in the proceedings on which the recount was founded, some of which appear to be important. As the registrars of voters had no jurisdiction to recount the votes, the result of their action cannot be considered, and the election declared by the voters in town meeting is valid. Peremptory writ of mandamus to issue. 132 MASSACHUSETTS ELECTION CASES — 1907. SUPREME JUDICIAL COURT. Isaac S. Brewster v. Charles H. Sherman and Others. (Reported in 195 Mass. 222.) Plymouth, April 2, 1907 — April 16, 1907. Present, Knowlton, C.J., Mor- ton, Loring, Sheldon and Rugg, JJ. Mandamus. Elections. License. Voter. — A voter and taxpayer of a town is a proper party to maintain a petition for a writ of mandamus ordering the board of registrars of voters of the town not to count an imperfectly marked ballot on a re- count of a vote of the town on the question whether licenses shall be granted for the sale of intoxicatiug liquors in the town. A writ of mandamus is the proper remedy to prevent the board of registrars of voters of a town from counting an imperfectly marked ballot on a recount of a vote of the town on the question whether licenses shall be granted for the sale of intoxicating liquors in the town. Where a voter at an annual election of a town, who has made a cross in each of the squares opposite the names of the officers for whom he voted, makes in the square at the right of the word "Yes," following the question "Shall licenses be granted for the sale of intoxicating liquors in this town?" a diagnonal mark and nothing more, this warrants a finding that the voter's choice cannot be determined and that the ballot should not be counted on this question. Petition, filed on March 13, 1907, by a voter and taxpayer of the town of Plymouth for a writ of mandamus directed to the board of registrars of voters in that town and the town clerk, ordering the board not to count a certain defective ballot described in the opinion and to make and file with the town clerk a new and amended certificate of a recount of votes made by them as described in the opinion, and ordering the town clerk to amend the record of the meeting accordingly. The case was heard by Braley, J., who found the facts which are stated in the opinion. He ordered that a peremptory writ of mandamus issue in accordance with the prayer of the petition, and at the request of the respondents reported the case for determination by the full court. If the order was right it was to be affirmed; otherwise, such order was to be made as law and justice might require. The case was submitted on briefs. C. S. Davis for the respondents. W. H. Osborne and M. Collingwood for the petitioner. Knowlton, C.J. At the last annual election in the town of Plymouth, the votes upon the question, "Shall licenses be BREWSTER V. SHERMAN. SUP. JUD. CT., 1907. 133 granted for the sale of intoxicating liquors in this town?" were counted by the tellers, who reported that six hundred and thirty-six ballots had been cast in the affirmative, and six hundred and thirty-seven in the negative, and that there were thirty-eight blank ballots. Two days later a petition for a re- count of these ballots was filed with the town clerk, and, ac- cordingly, the registrars of voters, who are the respondents in this suit, recounted them. In their certificate they declared and certified the vote on this question to be six hundred and thirty-eight ballots in the affirmative, six hundred and thirty- seven in the negative, and thirty-six blank ballots. It appears that, among the ballots counted as affirmative, there is one that shows, in the square opposite to the word "Yes," which follows the question, a diagonal mark, and nothing more. In this ballot it appears that, in voting for town officers, the voter made a cross in the squares opposite the names of the officers for whom he voted, showing that he was of sufficient intelligence clearly and legally to indicate his choice. This is a petition for a writ of mandamus to compel the registrars of voters not to count this ballot, and to make and file with the town clerk a new and amended certificate of the re- count of ballots, in which it shall be stated that the total number of votes in the affirmative on said question was six hundred and thirty-seven, and the total number of votes in the negative was six hundred and thirty-seven, and that the number of blank ballots was thirty-seven. The petitioner is a voter and taxpayer of the town, and the first question raised is whether he is a proper party to invoke a remedy of this kind. It is contended that, to maintain a petition for a writ of mandamus, he should have a private right or interest in the matter, beyond the right and interest of all the citizens of the town. The proposition contended for has some- times been stated as the rule, and it is correct in its application to some cases. See Wellington, Petitioner, 16 Pick. 87, 105; Pearsons v. Ranlett, 110 Mass. 118, 126. The general doctrine is stated in High, Ex. Leg. Rem. (3d ed.) sec. 431, as follows: " When the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest, and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such in- terested in the execution of the laws." In support of this 134 MASSACHUSETTS ELECTION CASES — 1907. proposition he cites cases from many States, although decisions from four States are cited to the contrary. This is the rule applied in Union Pacific Railroad v. Hall, 91 U. S. 343, 354, 355, and as shown in that case, it prevails also in England. See The King v. Secern & Wye Railway, 2 B. & Aid. 646; Rex v. Westmoreland, 1 Wils. 138; Rex v. Kent, 14 East, 395; Rex v. Cumberland, 1 M. & S. 190. In Attorney -General v. Boston, 123 Mass. 460, 479, Chief Justice Gray says: "There is a great weight of American authority in favor of the doctrine that any private person may move, without the intervention of the Attorney-General, for a writ of mandamus to enforce a public duty not due to the government as such," and he intimates, without deciding, that this is the law of Massachusetts. See Warren v. Mayor & Aldermen of Charlestown, 2 Gray, 84; Larcom v. Olin, 160 Mass. 102, 110. Inasmuch as the pro- ceedings are instituted under our statute by a petition, and the trial is usually had upon the petition, there is a peculiar reason why the general rule should apply in this Commonwealth. R. L. c. 192, sec. 5. In regard to the question whether licenses shall be granted for the sale of intoxicating liquors in Plymouth, no private right is involved, as distinguished from that of all the inhabitants of the town. The petitioner is a proper party to sue for a writ of mandamus. The single justice was unable to find as a fact that the diagonal mark constituted a cross, or indicated that the voter intended to vote and had voted "Yes" upon the question submitted. He found that "the voter either may have intended to vote 'Yes,' and then failed to complete the cross necessary to express his purpose, or he may have begun with such an intention, and then concluded not to do so, when, instead of erasing or crossing out the mark already made, he left it as it appears." Having found that the ballot was defective, and improperly counted, he ordered a peremptory writ of mandamus to issue, and reported the questions of law to this court. That a writ of mandamus is the proper remedy in a case of this kind was decided, after full consideration, in Flanders v. Roberts, 182 Mass. 524. See also Keough v. Holyoke, 156 Mass. 403; Wheeler v. Carter, 180 Mass. 382; Blackmer v. Hildreth, 181 Mass. 29; O'Connell v. Mathews, 177 Mass. 518. The R. L. c. 11, sec. 421, which gives the courts "jurisdiction at law or in equity to enforce the provisions of this chapter," etc., includes jurisdiction in the Supreme Judicial Court to issue a writ of mandamus in a proper case. The facts and the appro- BREWSTER V. SHERMAN. SUP. JUD. CT., 1907. 135 priate remedy in Perry v. Hull, 180 Mass. 547, relied on by the respondents, were very different from those in Flanders v. Roberts, and from those in the present case. The decision in Perry v. Hull was simply that the court will not issue a writ of mandamus in a case where an appropriate and effectual remedy in equity is given by the statute. In a case like the present, the remedy in equity referred to in the statute was not intended to take the place of a remedy by a writ of mandamus, and it would not be adequate. The findings of the judge in regard to the ballot were well warranted. The manner of voting in a case of this kind is by the voter's " making a cross in the square at the right of the answer which he intends to give," as prescribed by the R. L. c. 11, sec. 227. The voter failed to do this. His intent and the reason for his failure to express it are left to mere conjecture. The difficulty of finding an intention to vote in a particular way, when the intention is not expressed as prescribed by the statute, is pointed out in Flanders v. Roberts, 182 Mass. 524, and in the numerous decisions there cited. See also O'Connell v. Mathews, 177 Mass. 518. In the R. L. c. 11, sec. 238, it is expressly pro- vided that a ballot shall not be counted if the voter's "choice cannot be determined." There was no error of law in the rulings or findings. Peremptory writ of mandamus to issue. 136 MASSACHUSETTS ELECTION CASES — 1907. SUPREME JUDICIAL COURT. Malcolm E. Nichols v. Board of Election Commissioners of the City of Boston. (Reported in 196 Mass. 410.) Suffolk, Oct. 29 — Oct. 30, 1907. Present, Knowlton, C.J., Morton, Hammond, Loring, Sheldon, Braley and Rttgg, JJ. Elections. Constitutional Law. Voting Machine. — The provisions of the Con- stitution requiring that representatives to the General Court shall be "chosen by- written votes," those which by implication require that other State officers shall be chosen in the same way, and those in regard to the sorting and counting of votes in such elections cannot be complied with by the use of a voting machine which does not indicate the choice of the voter by some kind of writing upon a paper or other material thing which in his sight shall pass from his control to that of the officers charged with the duty of conducting the election, and which with the other written votes cast in the election shall continue to be the same material things capable of being handled, sorted and counted. Knowlton, C.J. This is a petition for a writ of mandamus to compel the board of election commissioners of the city of Boston to provide the so-called Australian ballot for use at the next election in Precinct 6 of Ward 10 of that city instead of the Dean ballot machine which they have voted to use. The case was reserved by a single justice for determination by the full court. It appears that this machine has been approved by the Secretary of the Commonwealth, the Treasurer and Receiver- General, and the Auditor of Accounts, under the provisions of R. L. c. 11, sec. 270, and regulations for the use of it have been made and instructions for voters have been prepared by the Secretary of the Commonwealth in accordance with the St. of 1905, c. 313, sec. 2. This machine is a mechanical device for registering votes. In shape it is like a box. It is about three feet in height and two and one-half feet square upon its upper surface. It is used as follows: Immediately before the opening of the polls it is in- spected by the election officers. There are certain dials on the machine, some registering the number of votes received by a candidate for office, and one which records the total number of voters casting ballots. All these dials are set at zero. The election officers see that a steel top is placed directly over the NICHOLS V. ELECTION COMMISSIONERS. SUP. JUD. CT., 1907. 137 machine, upon which top is pasted the official list of candidates to be voted for and questions to be answered. This top is then locked by the election officers, and when it is so locked it is im- possible for any voter to see the dials which register the number of votes cast for the respective candidates, and all that the voter can see is the names of the various candidates and the language of the questions, and such other information in reference to the candidates as is required by law to be upon the ballot. As each voter gives his name when about to vote, he steps under a cur- tain connected with the machine, which curtain conceals the face of the machine and all of the mechanical device used for registering votes from the sight of the election officers. The voter sees upon the face of the machine only the names and information above mentioned, and a number against the name of each candidate. There is a blank space to the right of the number, and a key to the right of the number, and a key to the right of the blank space, about one-fourth of an inch square. The voter pushes down the key to the right of the name of each candidate for whom he desires to vote. The pushing down of the key causes a cross to be exposed in the blank space between the number and the key, but none of the dials register- ing votes is moved in consequence of the pressing down of the key. After he has marked a cross in this way against the name of each candidate for whom he desires to vote, he throws a lever, called the operating lever, from right to left, before which act he may change his cross from one candidate to another. This lever is attached to the machine, and the moving of it from right to left, and this alone, causes a dial connected with the name of each candidate so crossed to move, thereby register- ing a vote for each candidate whose name is crossed. The movement of this dial cannot be seen by the voter or by any one else. After the polls are closed, the election officers unlock the top on which the official list of candidates and questions is pasted, and read the dials, and make official returns of the votes cast for each of the respective candidates and questions in accordance with the figures shown upon the dial. The petitioner contends that the use of this machine as proposed would be illegal, and a violation of the provision of the Constitution of the Commonwealth, chapter 1, section III, Article III, which provides that representatives to the General Court shall be "chosen by written votes," and of other pro- visions of the Constitution, which by implication require that other State officers shall be chosen in the same way. See Const. 138 MASSACHUSETTS ELECTION CASES — 1907. Mass. c. 2, sec. I Art. Ill; c. 1, sec. II, Art. II; c. 2, sec. I, Art. X; Amendments to the Constitution, Arts. 16, 17. In chapter 2, section I, Article III, cited above, it is made the duty of the town clerk, in the presence of the selectmen of towns who conduct the election, to "sort and count the votes," "form a list of the persons voted for, with the number of votes for each person against his name", and to "make a fair record of the same," and a "public declaration thereof;" and there are other similar provisions. The constitutional question thus raised was considered in the different answers given to questions submitted by the House of Representatives which appear in the Opinions of the Justices, 178 Mass. 605, 609, 611. This question may be answered affirmatively or negatively, according to the degree of strictness with which we interpret the language of the Constitution. If a choice by written votes is to be limited as to details to the particular method or methods which the framers of the Constitution had in mind more than one hundred years ago, it is plain that the use of this machine is not permissible. If we look at the object of the constitutional requirement, there is ground for an argument that it may be accomplished by the use of this machine, and that, in a broad and liberal application of the provisions of the Constitution to the present conditions and possible methods of voting, the use of this machine at an election should be deemed a choice "by written votes." It may be argued that the making of a material record of his act by each voter, and thereby securing for it greater certainty and per- manence than would result from a show of hands, or a declara- tion viva voce, is accomplished by the use of the machine as well as by a paper vote written by the hand of the voter and de- posited in a box. The secrecy of the ballot is even more effec- tively secured by the machine than by the method practiced one hundred years ago. It might be contended that, when the voter has pressed down the key before the name of each of his can- didates, he has before him his vote upon which his choice is designated by the crosses opposite the names, and that his movement of the lever which makes the record upon the dials below does not differ in effect from a movement of his hand in throwing a piece of paper into a box, and that the numerical adjustments and uncertainty that intervene between his act and the entry of the result by the election officers are no greater in the one case than in the other. Some of the justices, including NICHOLS V. ELECTION COMMISSIONERS. SUP. JUD. CT., 1907. 139 the writer of this opinion, would prefer to decide that this method of voting is within the meaning of the constitutional provision. But the method in detail is entirely unlike the writing of a name of chosen candidates upon a piece of paper, and the deposit of the paper in a box, to be afterwards taken out and counted. In the use of the machine the voter must trust everything to the perfection of the mechanism. . He cannot see whether it is working properly or not. This chance of error, whether greater or less than the chance that a ballot deposited in a box will not be properly counted, is very different from it. It was not within the knowledge or contemplation of the framers of the Constitution. In one of the opinions already referred to signed by three of the justices (178 Mass. 616) this language was used: — "Interpreting the Constitution in the light of the circumstances existing at the time of its adoption, as well as of the laws and customs which had theretofore prevailed, we think that the language prescribing the way in which the will of the voters shall be expressed and ascertained in the case of the election of Governor and of the other State officers, where similar language is used, necessarily implies at least that the choice of the voter shall be indicated by some kind of writing upon a paper or other material thing; that this material thing bearing this written expression of the choice of the voter shall by this act of voting pass from his possession and control into that of the officers charged with the duty of conducting the election, and that the voter shall have reasonable opportunity to see that it has so passed; that it shall be distinct from that handed in by any other voter, and that these written votes so handed in shall continue to be the same material things, capable of being handled, sorted and counted; and that the whole work of as- certaining and declaring the result shall be the personal act of these election officers, with the written votes before them, the sorting and counting as well as the declaration of the result being done by sworn officers. One reason for the requirement of a written vote is that the voter may have a reasonable opportunity of making his choice without immediate influence upon the part of others, and that the reason for the requirements applicable to the sorting and counting is that the votes may not fail of their proper force by reason of mistake or fraud in the count. The safeguard erected by the Constitution is that there shall remain after the closing of the voting, in a material form, capable of being read and understood by men, a written 140 MASSACHUSETTS ELECTION CASES — 1907. vote cast by each voter, and that all these individual votes, each given by the voter to the election officers, shall be read, sorted and counted in accordance with the several tenor of each, by men acting under the sanction and obligation of their respec- tive official oaths." There is no doubt that, in reference to the only conditions and methods which they then knew or thought possible, this is a fair statement of what was in the contemplation of the framers of the Constitution. To a majority of the court, the adoption and use of a machine which employs none of these methods, and whose working and whose record of the results is invisible to the voter, seem so great a departure from the method referred to in the language of the Constitution as not to be included within its broadest meaning. Even if the principal objects to be accomplished by the constitutional requirement would be accomplished as well by the use of the machine, it seems too great a stretch of language to say that the use of it is the ex- pression of a choice by a written vote. In the opinion from which we have already quoted there is also this language: — "The turn of a wheel or a dial, the punching of a hole in an unseen roll of paper on which are the names of candidates by a voter who pulls a lever or turns a key, is not the use of a written vote within the meaning of the Constitution; nor is the inspec- tion of a dial, even if preceded or followed by an inspection of all the cogs and mechanism which have moved the hands of the dial, or the counting of holes in such a paper and the inspection of the machinery which made the holes, the sorting and counting of votes by election officers. If it be said that these are the best and most efficient means to secure a free and honest election, the answer is that they are not the means prescribed for those ends by the Constitution. The Constitution does not authorize the General Court to put the expression of the voter's will to the chance of being nullified or perverted by slipping cogs, defective levers or other mechanical devices which have no living intelligence, no conscience and no liability to punishment to insure their going right. It requires that every step in the task of seeing that votes, whether given by Indian corn and beans or other ballots, by show of hands, by the living voice or by paper writing, are counted rightly, shall be intrusted to and performed, not by an inanimate machine, but by sworn officers, and in open meeting, where each step of the work can be verified and mistakes corrected." Decisions in other States that bear upon this question are NICHOLS V. ELECTION COMMISSIONED. SUP. JUD. CT., 1907. 141 under constitutional provisions differing somewhat from our own, and we do not deem them conclusive. In re Voting Machine, 19 R f I. 729; Elwell v. Comstock, 99 Minn. 261; Lynch v. Malley, 215 111. 574; Detroit v. Inspectors of Elections, 139 Mich. 548. In the opinion of a majority of the court the statute under which the respondents are acting is unconsti- tutional. Peremptory writ of mandamus to be issued. The case was submitted on briefs at the sitting of the court in October, 1907, and afterwards was submitted on briefs to all the justices. J. H. Vahey, C. H. Innes and T. F. Vahey for the petitioner. T. M. Babson for the respondents. 142 MASSACHUSETTS ELECTION CASES — 1908. supreme judicial court. Attorney-General v. Hugh McOsker. Attorney-General v. Frank K. Stearns. (Reported in 198 Mass. 340.) Middlesex, March 23, 1908 — April 3, 1908. Present, Knowlton, C.J., Hammond, Loring and Sheldon, JJ. Elections. — Words "Two Leading Political Parties" denned. — The State con- vention of the Democratic party, held in the autumn of 1907 for the purpose of placing in nomination candidates for State officers to be voted for at the next annual election, divided into two factions, one of which nominated one B. for Governor, while the other nominated one W. Each faction claimed the party designation and, under St. 1907, c 560, sees. 171, 175, 176, filed with the Secretary of the Com- monwealth a ticket designated "Democratic," and, each objecting to the ticket filed by the other, the dispute was referred, under section 179 of that statute, to the State Ballot Law Commission. It becoming apparent that the decision of the com- mission would be so delayed that, after its rendition, the defeated faction would be unable to file nomination papers under section 177, both factions filed such papers, each placing in nomination the persons upon the ticket nominated by its conven- tion. The nomination paper containing W. as a candidate for Governor was desig- nated "Democratic citizens." After the time within which nomination papers must be filed under section 177, and the time within which they might be withdrawn under section 180, the commission decided that the ticket headed by W. as a can- didate for Governor was entitled to the designation "Democratic." On the ballot at the State election, W. therefore appeared as a candidate for Governor under the designations "Democratic" and "Democratic citizens, nomination paper." At that election a candidate designated "Republican" received the highest number of votes, and a candidate designated "Independence League" received more votes than were cast for W. under the designation "Democratic," but less than the total number cast for W. under both the designation "Democratic" and "Democratic citizens." A member of the party designated "Democratic," as representative of one of the two leading political parties, was appointed a member of the board of registrars of voters of a city under section 27 of the statute mentioned above, which provides that such members shall be so appointed that they shall represent, as equally as may be, the "two leading political parties," and an information by the Attorney-General, at the relation of members of the party designated "Independ- ence League," in the nature of a quo warranto, was filed to try the title of the ap- pointee to his office. Held, that under the circumstances the votes cast for W. under the designation "Democratic citizens, nomination paper," were votes belonging to the party designated "Democratic," and therefore that the respondent was en- titled to his office, since he was a member of the "Democratic" party, which was one of the "two leading political parties" under section 1 of the statute. Two informations, filed on Jan. 24, 1908, in the Supreme Judicial Court for the county of Middlesex, by the Attorney- General at the relation of two citizens and legal voters of Lowell, members of a political party known and designated as the ATTORNEY-GENERAL V. McOSKER. SUP. JUD. CT., 1908. 143 Independence League, to try the title of the defendants, re- spectively, to the office of a member of the board of registrars and to the office of a member of the board of police of that city. There was a hearing before Morton, J., who reserved the cases for the consideration of the full court. The facts are stated in the opinion. //. Parker (J. T. Aurenbach and R. Walcott with him) for the Attorney-General. J. G. Hill for the defendants. Knowlton, C.J. These are two informations in the nature of a quo warranto, to try the title of Hugh C. McOsker to the office of a member of the board of registrars of voters of the city of Lowell, and the title of Frank K. Stearns to the office of a member of the board of police of that city. Each of the statutes under which the appointments of the defendants were made, respectively, requires that the members of the board shall, as equally as may be, represent the two leading political parties at the preceding State election. R. L. c. 100, sec. 3; St. 1907, c. 560, sec. 27. In making these appointments the mayor decided that the Democratic party is one of the two leading political parties, determined by the result of the State election in 1907. There is no dispute that the Republican party is one of them. But the informant contends that the Independence League, and not the Democratic party, is the other. In framing these statutes the Legislature undoubtedly meant, by two leading political parties, the two parties in point of numbers. As a convenient way of determining numerical superiority they made this enactment: '"Two leading political parties,' shall apply to the political parties which cast the highest and next highest number of votes for governor at the preceding annual election." St. 1907, c. 560, sec. 1. It is agreed that at the State election in November, 1907, the following persons received the following number of votes for the office of Governor, with the designations set against their names: — Votes. Curtis Guild, Jr., of Boston (Republican) 188,068 Thomas L. Hisgen of West Springfield (Independence League) . 75,489 Henry M. Whitney of Brookline (Democratic) .... 70,842 Henry M. Whitney of Brookline (Democratic citizens, nomination paper) 6,691 144 MASSACHUSETTS ELECTION CASES 1908. Henry M. Whitney of Brookline (Independent citizen) Henry M. Whitney of Brookline (No designation) Charles W. Bartlett of Newton (Anti-merger) John W. Brown of Worcester (Socialist) Hervey S. Cowell of Ashburnham (Prohibition) Thomas F. Brennan of Salem (Socialist labor) All others ....... Votes. 5,154 1,692 11,194 7,621 3,810 2,999 135 It appears that Mr. Hisgen, the candidate of the Independence League, received a larger number of votes than Mr. Whitney received under the party designation " Democratic," and that Mr. Whitney, under different designations, received a larger number than Mr. Hisgen. In view of these returns and the other facts, and the pro- visions of the statute, we are to determine which of the parties represented by these two candidates is one of the two leading political parties. It is agreed as a fact, if it is competent and material, which the informant denies, that the independence league has never, in this Commonwealth, elected a candidate nominated by it for an office to be filled by vote of all the voters of the Commonwealth; nor has any candidate nominated by it been elected to the General Court. It is also agreed that in the city of Lowell there are not more than thirty voters enrolled under the provisions of the caucus act, as members of the Independence League, while there are two hundred and sixteen principal election officers and the same number of deputies for each election in said city. While such facts as how many voters are enrolled in the membership of either of these parties in a particular city may not be material, we are of opinion that in the consideration of this statute in reference to peculiar conditions not provided for in it, we may take into account facts of common knowledge in regard to the political parties of the State, and inquire which of two possible con- structions of the statute would be the more likely to reach the result intended by the Legislature. It is agreed that in 1907 there was a sharp contest in the Democratic party for the nomination of Governor. The party included two contending factions which divided in the State convention, organized separately and chose two sets of candidates for officers of the State. Each organization professed to repre- sent the Democratic party, and filed a list of its candidates with the Secretary of the Commonwealth, and demanded a place for them on the official ballot as candidates of the Demo- ATTORNEY-GENERAL V. McOSKER. SUP. JUD. CT., 1908. 145 cratic party. Each faction objected to the certificate of nomi- nations of the other, and the matter in dispute was referred to the Ballot Law Commission, under the St. 1907, c. 560. It being apparent that the hearing would occupy considerable time, and that the result was uncertain, a nomination paper was filed with the Secretary of the Commonwealth on Oct. 14, 1907, putting in nomination as State officers, under the desig- nation " Democratic citizens," Mr. Whitney and others, who were the same persons that were nominated by his supporters at the State convention, except one who had withdrawn his name from nomination. On the same day nomination papers were filed for the officers of the other faction of the Democratic party, and another nomination paper was filed for Mr. Whitney for the office of Governor, under the designation "Independent citizen." October 14 was the last day for filing nomination papers under the law, and October 17 was the last day for withdrawing names from nomination. The Ballot Law Com- mission were unable to reach a decision of the questions before them until October 18, when they filed their decree that the certificate containing the name of Mr. Whitney represented the action of the Democratic party, and that the names on it should go upon the official ballot as the candidates of that party. It was then too late to withdraw the nominations made by the nomination papers. The question of law is presented, whether under facts like these, in determining the highest number of votes for Governor cast by a political party at the State election, the number cast under the designation of that party on the ballot shall be con- clusive of the whole subject, so as to exclude all consideration of other facts or evidence. We are of opinion that the rule contended for by the informant is too strict in this particular. The inference is very strong that the persons who filed the nomination paper containing the name of Mr. Whitney and his associates as they afterward appeared on the official ballot, except one who had withdrawn his name from nomination, were members and supporters of that part of the Democratic party whose nominations were accepted by the Ballot Com- missioners. This paper was filed in the interest of that part of the party. The political opinion or preference indicated by the designation selected was no other than Democratic. By reason of the use of the word "Democratic," followed by "citizens/" it was necessary to add the words, "nomination papers." St. 1907, c. 560, sec. 230. The requirement of this section, that 146 MASSACHUSETTS ELECTION CASES — 1908. when the name of a political party is used in connection with some other term as the designation of a candidate nominated by a nomination paper, the words "nomination paper" shall be added to such political designation, is for the purpose of showing which candidates, belonging to the party, are regularly nominated and which are nominated by individuals. It recog- nizes the affiliation of both with the party, and implies that when the same person is the nominee in both forms, all the votes cast for him may be treated as belonging to the same party. This designation was not the name of any other existing political party as defined in the St. 1907, c. 560, sec. 1. There was, therefore, no occasion to decline to count the voters as belonging to the Democratic party, on the ground that they represented another party whose rights were to be protected. If hereafter there should be a use of the same designation, with a view on the part of anybody to acquire a position as a political party, future conditions may be considered and different ques- tions may arise. But we are of opinion that a designation adopted as this was, for the purpose which is manifest, does not preclude the court from finding that the voters under it should be counted as belonging to the Democratic party. There seems little doubt that this nomination was as truly Democratic as that of the convention. The votes, to the number of sixty- eight hundred and forty-six, which were cast for Mr. Whitney under the designation "Independent citizen," and under no designation, may fairly represent his supporters who were not of his party. The votes cast for him under the designation "Democratic" and "Democratic citizen" are together more in number than those cast for the candidate of the Independence League, and it follows that, within the meaning of this statute, the Demo- cratic party is one of the two leading political parties in the Commonwealth. The other questions discussed before us need not be considered. Informations dismisssd. COMMONWEALTH V. EDGERTON. SUP. JUD. CT., 1909. 147 SUPREME JUDICIAL COURT. Commonwealth v. William J. Edgerton. (Reported in 200 Mass. 318.) Bristol, Oct. 26, 1908 — Jan. 4, 1909. Present, Knowlton, C.J., Morton, Sheldon and Rugg, JJ. Evidence. — At the trial of an indictment under St. 1907, c. 560, sec. 410, against an election officer for willfully performing contrary to law the duties imposed upon him by section 270 of the same chapter in making a false count of votes in an election and knowingly making a false report of the result of the canvass and count of votes, the official tally sheets kept by the defendant in the counting of the votes are com- petent and are the best evidence to show what the count kept by the defendant was. False Count in Votes. — At the trial of an indictment under St. 1907, c. 560, sec. 410, against an election officer for willfully performing contrary to law the duties imposed upon him by section 270 of the same chapter in making a false count of votes in an election and knowingly making a false report of the result of the canvass and count of votes, the testimony of bystanders, who observed the defendant's conduct in keeping a false tally of the votes, is admissible to show the facts which they observed although they were not election officers and were interested in the election only as citizens. Evidence. — At the trial of an indictment under St. 1907, c. 560, sec. 410, against an election officer for willfully performing contrary to law the duties imposed upon him by section 270 of the same chapter in making a false count of votes in an election and knowingly making a false report of the result of the canvass and count of votes, the Commonwealth, against the objection of the defendant, introduced the testi- mony of the registrars of voters to show that upon a recount by them it appeared that the ballots had not been counted and reported correctly, and the jury were allowed to inspect the sheets used by the registrars at the recount and used by them in testifying to refresh their recollections, the jury being instructed that those sheets were not evidence and could not be considered by them. The defendant contended that instead of this testimony the ballots themselves, being the best evidence, should have been produced for the jury to count. Held, that assuming that the production of the ballots could have been compelled, which was doubted, there being no question raised as to any irregularities appearing on the face of the ballots, the number of the ballots cast on one side and the other was a matter of com- putation, and that the computation could be testified to by any one who made it, and therefore that the registrars, refreshing their recollections by referring to the sheets used by them at the recount, properly could testify as to the result of the recount so far as it related to the count and report made by the defendant, and that the jury properly were allowed to inspect the sheets for the purpose of assisting them in passing upon the credibility of the registrars. Election Officer. — At the trial of an indictment under St. 1907, c. 560, sec. 410, against an election officer for willfully performing contrary to law the duties imposed upon him by section 270 of the same chapter in making a false count of votes upon the question of the granting of licenses for the sale of intoxicating liquors in a city and in knowingly making a false report of the result of the canvass, there was evi- dence that the defendant made marks on a tally sheet as another election officer called off the answers on the ballots, for the purpose of keeping an account of the votes; that in doing so he marked twenty-one more votes for license, fifteen less votes against license and six less blanks than the other election officer called off to 148 MASSACHUSETTS ELECTION CASES — 1909. him and than afterwards appeared to be the true numbers upon a recount by the registrars of voters; and also that, when the defendant became aware that two bystanders were following the count, he kept tally correctly. There was other evidence from which guilty knowledge on the part of the defendant could have been inferred. It further appeared that the defendant and the election officer who called off the answers to him signed the tally sheets thus marked by the defendant, and that these tally sheets were delivered to and received by those charged with the duty of declaring the results of the election as the reports of the results of the votes counted and canvassed by the defendant and the other election officer who signed them. Held, that there was evidence for the jury that the defendant willfully made a false count and knowingly made a false report of the canvass of votes; that the count and canvass by the defendant and the election officer who called off the an- swers were none the less a count and canvass by the defendant because he merely marked the tally sheets while the other handled the ballots; and that the tally sheets signed by the two constituted and were intended to constitute reports of the results of the votes counted by them. Morton, J. This was an indictment in two counts under St. 1907, c. 560, sees. 270, 410, charging the defendant with will- fully performing his duty as an election officer contrary to law by knowingly making a false count of votes on the license ques- tion, and by knowingly making a false report of the result of a canvass of votes on said question at the municipal election for the city of New Bedford, held Dec. 3, 1907. There was a verdict of guilty on each count, and the case is here on exceptions by the defendant to the refusal of the judge to direct a verdict for the defendant, and to the refusal of the judge to give other rulings requested by the defendant; also to the admission of evidence, and to the findings of fact and rulings of law made upon a motion for a new trial, which was filed by the defendant. It appeared that the defendant was duly appointed an election officer and acted as such at the election in question in Precinct 9 of Ward 3, and that he was assigned by the warden or pre- siding officer to work with one Jennings in canvassing and counting the ballots which were cast in that precinct. It also appeared that after the polls were closed the ballots were taken from the ballot box and arranged by the election officers, of whom, including the defendant, there were six, in blocks or packages of fifty ballots each. There was testimony tending to show that in canvassing and counting the ballots the course pursued by Jennings and the defendant was as follows: Jennings would take a block of ballots and call off from each ballot the names of the persons voted for, and "yes" or "no" or "blank" according as the license question was answered "yes" or "no," or not at all, and the defendant would make a mark upon a tally sheet under the name of the person voted for and against the COMMONWEALTH V. EDGERTON. SUP. JUD. CT., 1909. 149 word "yes" or "no" or "blank," according to the announce- ment made by Jennings. There was a tally sheet for each block or part of a block. After a block had been thus can- vassed and counted the defendant would slide the tally sheet over to Jennings, who would announce the totals, and the defendant would enter the figures thus given in a column headed "totals" at the right of the tally sheet. The tally sheet was then signed by Jennings and the defendant and folded up and placed with the ballots in the envelope from which the latter had been taken, and afterwards the totals on each tally sheet were entered by the clerk on a sheet called the total vote sheet. After the ballots had all been counted they were placed in a box which was sealed up and sent with the tally sheets, total vote sheets, a book called the precinct book containing the result of the votes cast in the precinct as ascertained by the election officers, the check lists, unused ballots and ballot box, to the city clerk. After the election there was a recount of the ballots by the registrars of voters on the license question, and the results of their count of blocks 3, 5 and 6 differed materially from the results of the counts of those blocks as shown by the tally sheets kept by the defendant. These blocks and block 9 were specified by the district attorney, in answer to the de- fendant's motion for a bill of particulars, as those in regard to which the alleged false count and report were made by the defendant. There was also other evidence tending to show that the defendant's count of these blocks was not correct. All of the other election officers were summoned by and testified as witnesses for the Commonwealth. The defendant was a witness in his own behalf. 1. The city clerk was called as a witness by the district at- torney, and produced the tally sheets, twelve in number, used by the election officers in the precinct, on the day of election, and they were offered in evidence by the district attorney, and were admitted, subject to the defendant's objection and ex- ception that they were not competent to prove the charges contained in the indictment and specifications. It was part of the Commonwealth's case to show, if it could, that the count and report made by the defendant were wrong. In order to do that it was necessary to show what the count and report made by the defendant were. The tally sheets kept by him of the blocks specified were the best evidence of the count and report made by him of the ballots contained in those blocks, and were plainly competent. No objection was made to the 150 MASSACHUSETTS ELECTION CASES — 1909. admission of the tally sheets on the ground that they included tally sheets kept by other officers. If there had been, no doubt such other tally sheets would have been excluded. Moreover, the judge carefully instructed the jury that any acts or irregu- larities in which the defendant took no part should have no effect against him, and the jury must be presumed to have followed the instuction thus given. 2. The testimony of the bystanders Garside and Cram x was plainly admissible on the issue whether the defendant wrongly counted and reported the ballots counted and reported by him. The fact that they were not election officers and were interested in the election only as citizens did not render their testimony as to what they observed in regard to the defendant's conduct inadmissible. 3. The testimony of the registrars of voters in regard to the recount was also plainly admissible on the question whether the ballots had been correctly counted and canvassed. The de- fendant contends that the ballots themselves should have been produced for the jury to count as the best evidence. It may be doubted whether their production could have been compelled. But, however that may be, the question was whether the tally kept by the defendant was a correct tally or count, and any one who had counted the ballots or who had followed the count or tally kept by another could testify thereto, as to any other competent fact within his own observation. While in a sense the ballots themselves were the best evidence of the number cast pro and con on the license question, they were not from the nature of the case the only evidence. The number was a matter of computation and the computation could be testified to by any one who made it. No question was raised, so far as 1 Garside was a reporter for the "New Bedford Standard," a daily newspaper, and Cram was a reporter for the " New Bedford Times," another daily paper. They were standing outside the rail and kept count of the license vote as Jennings called it off. Among other things, Garside testified as follows: — "I kept a count in my notebook of block 3. I made it 22 yes and did not count blanks. Edger- ton made 30 yes and 19 no and 1 blank. I looked then to see which was first, the yes or the no, and I spoke to Cram. I counted the next block as follows: 20 yes, 25 no and 5 blanks. I asked Edgerton what he made, and he said that he had 28 yes, 17 no, 5 blanks. I counted block 6 and saw Cram count also; that was the block on which there was a misunderstanding between Jen- nings and Edgerton. I did not find out whether the disputed ballot was a'blank' or a 'no.' I made the count 19 yes, 29 no and 1 blank, having 1 uncertain. On the next block Cram stood at the rail marking down; we counted the same as Edgerton. On the next block I counted the no votes in my head and Cram counted the no's also. Our count was the same as Edgerton." In cross-examination Garside further testified: "I did not keep the last count in the book because I thought mistakes might continue to be made if they did not know they were being watched. I reasoned that way as soon as it became evident that no mistakes were made on one block when Cram stood at the rail taking counts. There was every appearance of intentiona wrong count. I came to that conclusion after three blocks had been counted." COMMONWEALTH V. EDGERTON. SUP. JUD. CT., 1909. 151 appears, as to whether any of the ballots had or had not been properly counted by reason of any irregularities appearing upon the face thereof. The registrars were properly allowed to refresh their recollection by referring to the sheets used by them at the recount, and the jury were properly allowed to inspect the sheets for the purpose of assisting them in passing upon the credibility of the registrars. The jury were expressly instructed that the sheets thus used by the registrars to refresh their recollection were not evidence and could not be considered by them. The fact that the defendant had no notice of and was not present at the recount was immaterial. The statute contains no provi- sion for such notice in a case like the present. St. 1907, c. 560, sec. 300. Neither was the fact that certain requirements of the statute were not observed at the recount material. The legality or illegality of the recount was not in issue, and the failure to observe the statutory requirements which it was contended were not observed was not shown and could not have been found to have affected the correctness of the recount. 4. The defendant asked the judge to instruct the jury that there was no evidence that he counted any votes, or knowingly and willfully made a false count, or knowingly made a false report of any count or canvass of votes. The judge refused to do so and the defendant excepted. Full instructions were given to which no objection was made except to the refusal to give the above instructions. We think that the presiding judge was right in refusing to give the instructions requested. It could not have been ruled that there was no evidence that the defend- ant counted any votes or made a report of a count and canvass. He made marks on the tally sheet as Jennings called off the answers, for the purpose of keeping an account of the votes, and the jury were warranted in finding that this constituted a counting and canvassing of the votes by him. It was not necessary that he should handle each ballot in order to count and canvass the votes. The count and canvass was none the less a count and canvass by the defendant because made by Jennings and himself, each assisting the other, Jennings handling the ballots and the defendant keeping the count. The jury were also warranted in finding that the tally sheets signed by Jennings and the defendant constituted and were intended to constitute reports of the results of the votes counted and canvassed by them, and were so regarded by those charged with the duty of declaring the results of the election. There was also evidence warranting the jury in finding that the defendant willfully and 152 MASSACHUSETTS . ELECTION CASES — 1909. knowingly made a false count and canvass and a false report of the votes counted and canvassed by him. There was testi- mony tending to show that in blocks 3, 5 and 6 there was an error of forty-two votes, — the recount showing twenty-one less votes in favor of license, fifteen more against it, and six more blanks. The total number of ballots in these three blocks was one hundred and fifty. Jennings was a witness for the Common- wealth and testified in substance that he called off the votes correctly. The whole number of votes in the city on the license question was upwards of eight thousand. The majority for license on the original count of the whole vote was one hundred and eighty. On the recount this was reduced to ninety-three. Of the eighty-seven votes thus shown to have been wrongly counted for license, thirty-eight, or almost one-half, were shown or could be found to have been shown to be in the three blocks of ballots of fifty each, counted and canvassed by the defendant. This warranted the jury in finding either that he was grossly incompetent or that the errors were committed by him willfully and knowingly. There was also evidence tending to show that, after he became aware that Garside and Cram were following the count, the defendant kept the tally correctly. There was likewise evidence of conversations with and statements made by the defendant which the jury may have thought more con- sistent with guilty knowledge on his part than with any other reasonable explanation. The rulings requested by the defendant could not therefore have been properly given. 5. The jury retired to deliberate upon their verdict about 11 o'clock. They were all taken to dinner. About 7 o'clock in the evening the officer in charge of them asked if they cared for supper, and, upon being told that they did, made preparation accordingly. One juryman said that he did not feel well and did not care for supper and would stay and smoke. The other jurors were taken to supper by the officer, and this juryman was left in the jury room, which was locked and the key was left outside near the door, in its accustomed place. When the jury returned the juror was found in the jury room with the door locked. The jury deliberated all night and did not reach a verdict until after breakfast about 10 o'clock the next morning. The court had adjourned when the jury were taken out to supper, and the matter of leaving the juror alone in the jury room was not therefore brought to the attention of the judge at that time. After the verdict was rendered the defendant COMMONWEALTH V. EDGERTON. SUP. JUD. CT., 1909. 153 filed a motion for a new trial, one ground of which was that the jury had been allowed to separate after the case had been submitted to them and before they had arrived at their verdict. The judge denied the motion and the defendant excepted thereto. The decision of the presiding judge is not open to revision here unless there was as matter of law some error in his rulings or findings. Nichols v. Nichols, 136 Mass. 256. - He found as matter of fact that the officer and the juror acted in good faith, and that the reasons which the juror gave for not wanting to go to supper were true; that he remained locked in the jury room alone all the time the other jurors were absent, saw no one and spoke to no one, and nothing occurred during their absence to influence his mind in arriving at a verdict. The judge also found that there was no talk between the other jurors at the supper table in regard to the case, and that, even if some of the jurors did talk about the case in going from and returning to the court house, what was said was of a casual and informal nature and could not reasonably be considered as a part of the deliberations of the jury; and he found that, although the juror might have heard and have been influenced by the remarks made by some of the jurors in going to and re- turning from supper, the argument was too unsubstantial to justify setting aside the verdict, and the facts did not show a reasonable probability that the rights of the defendant had been violated. He ruled as matter of law that, on the facts found by him, the defendant was not entitled to a new trial, and he refused to allow the motion as a matter of discretion. We do not see how it can be said as matter of law that there was any error in his rulings or findings. The only difference between this case and Commonwealth v. Gagle, 147 Mass. 576, is that in that case the juror was permitted by the court to remain in the jury room under the charge of an officer. But if what took place in that case did not constitute as matter of law such a separation as to prejudice the rights of the de- fendant, we do not see how what took place here can be held as matter of law to have constituted such a separation. See also Nichols v. Nichols, 136 Mass. 256. Sound public policy re- quires that the safeguards which have been established to insure verdicts free from all improper influences should be strictly maintained; but as was said in Nichols v. Nichols, the court "ought not to be swift to grant a new trial on account of ir- regularities not attended with any intentional wrong, and 154 MASSACHUSETTS ELECTION CASES — 1909. where it is made satisfactorily to appear that the party com- plaining has not and could not have sustained any injury from them." Exceptions overruled. J. Walsh for the defendant. J. M. Swift, District Attorney (F. B. Fox, Assistant District Attorney, with him), for the Commonwealth. RAY V. REGISTRARS OF VOTERS, ASHLAND. SUP. JUD. CT., 1915. 155 SUPREME JUDICIAL COURT. Fred W. Ray v. Registrars of Voters of Ashland. (Reported in 221 Mass. 223.) Suffolk, Nov. 9, 1914 — May 21, 1915. Present, Rttgg, C.J./Loring, Braley, DeCourcy, Crosby, Pierce and Carroll, JJ. Elections. Pasters. — There being no express statutory provision to the con- trary, a voter's designation on the official ballot of his choice for a certain officer by pasting over a name regularly placed upon the ballot a slip containing the name of a person not nominated by any party and then placing a cross in the appropriate blank opposite the name, while irregular, is not illegal, and the ballot properly may be counted as a vote for the person named on the slip. Mistake in marking Official Ballot. — Where such election was for the choice of selectmen for a term of three years, the words "three years" placed after the name printed on the slip do not as a matter of law constitute a mark upon the ballot by which it may be identified, as described in St. 1913, c. 835, sec. 295, nor render the ballot invalid. Such a ballot properly may be counted for the man whose name appears upon the paster, although only the capital letters that begin his Christian and surname and his middle initial are printed in type conforming to the requirements of St. 1913, c. 835, sec. 280, 258, 261, as to size and character of the letters. Petition, filed on April 9, 1914, for a writ of mandamus directing the respondents, the board of registrars of voters of the town of Ashland, to reject certain ballots cast at an election held in the town on March 2, 1914, for the choice of selectmen for the term of three years and to certify to the town clerk the election of the petitioner. The case was heard by Hammond, J. He found the following among other facts: — The petitioner was a candidate for the office of selectman on nomination papers, and his name was duly printed upon the official ballot. One Charles T. Dearborn also was a candidate for the office of selectman, but had not been nominated by any party, nor had his name been printed upon the official ballot. Many voters inserted the name of Dearborn upon their ballots either by writing in his name in the blank space left at the end of the list of candidates for selectmen, or by the use of pasters placed in such blank spaces. Upon the face of the election returns made by the election officers Dearborn had a plurality of six votes. A petition for a recount of the ballots was filed and the respondents recounted the ballots and found and determined that Dearborn had 156 MASSACHUSETTS ELECTION CASES — 1915. received one hundred and fifty-nine votes, and that the peti- tioner had received one hundred and forty-five votes. Among the ballots counted by the respondents for Dearborn were eighteen pasters which had printed upon them the name of Charles T. Dearborn and which were placed over the name of the petitioner in the space on the official ballot where the petitioner's name was printed. The cross in the square at the right of each such paster was counted for Dearborn. The name of Charles T. Dearborn, wherever it appeared upon the pasters, except for the first letter of his Christian name, the middle initial and the first letter of his surname, was not printed in capital letters, and the type in which it was printed was less than one-eighth of an inch in height. The pasters in addition to the name of " Charles T. Dearborn, Cherry Street," had printed upon them the words "three years." The single justice ruled that the eighteen ballots with pasters placed over the name of the petitioner, which did not have the candidate's name in all capital letters nor in letters not less than one-eighth of an inch in height, and which had after the name the words "three years" printed upon them, were all properly counted for Charles T. Dearborn, and upon such findings and ruling ordered the petition dismissed, and at the request of the petitioner reported the case for determination by the full court. The case was argued at the bar in November, 1914, before Rugg, C.J., Hammond, Braley, DeCourcy and Crosby, JJ., and afterwards was submitted on briefs to all the justices con- stituting the court. J. P. Dexter for the petitioner. E. L. McManus for the respondents. Braley, J. It appears that, the opponent of the petitioner for the office of selectman for the term of three years not having been nominated by any party, his name was not printed on the official ballot. While many voters, either in writing or by the use of pasters, inserted his name in the blank space provided therefor at the end of the list of candidates, these votes seemingly were insufficient to insure his election, and the petitioner is entitled to the office unless the eighteen pasters placed over the petitioner's name in the space where his name appeared, and the cross made in the square opposite thereto, were properly counted for his opponent whose name they bore. The cardinal rule is, that "if the intent of the voter can be RAY V. REGISTRARS OF VOTERS, ASHLAND. SUP. JUD. CT., 1915. 157 fairly determined, effect shall be given to that intent and the vote counted in accordance therewith." Flanders v. Roberts, 182 Mass. 524, 525, 526, and authorities cited. And his intention is to be found from the evidence of what he did. If not pro- hibited by statute, ballots which fairly and unmistakably express the voters' purpose are to be counted as deposited in the ballot box. O'Connell v. Mathews, 177 Mass. 518, 521; Brown v. McCollum, 76 Iowa, 479; State v. Eagan, 115 Wis. 417. The original act of 1888, c. 436, sec. 23, as amended by St. 1889, c. 413, provided that the voter could fill in the blank space on the ballot with the name of the candidate of his choice; but in the codification of the election laws in St. 1893, c. 417, sec. 162, this wording was so changed as to read "by inserting the name of the candidate of his choice." It was said in Cole v. Tucker, 164 Mass. 486, 488, where the use of the official ballot by the voter was under discussion, that "the acts permit the voter to vote for such persons as he pleases by leaving blank spaces on the official ballot in which he may write or insert in any other proper manner the names of such persons." The blank space is as appropriate for the insertion of a printed slip as of a written name, and under this statute and subsequent revisions the use of pasters, while not expressly, is impliedly, recognized. St. 1898, c. 548, sec. 224; R. L. c. 11, sec. 227; St. 1907, c. 560, sec. 260; St. 1913, c. 835, sec. 292, as amended by St. 1914, c. 435. We find no express provision, however, in St. 1913, c. 835, prohibiting the voter, if he chooses such mode of exercis- ing his right, from placing a written or printed slip bearing the name of another person over the name of a candidate, and voting for that person by making a cross in the appropriate blank opposite the name. The designation may be irregular, but it is not illegal. Coughlin v. McElroy, 72 Conn. 99; Tandy v. Lavery, 194 111. 372. It is not a "spoiled ballot," which under section 296 the voter can exchange for a fresh ballot, nor is the paster itself a distinguishing mark used by the voter, subjecting him to the penalty of imprisonment under section 543. People v. Shaw, 133 N. Y. 493, 497, 498. The cases cited by the petitioner are not in conflict with this view. In Whittam v. Zahorik, 91 Iowa, 23, and Van Winkle v. Crabtree, 34 Ore. 462, the ballots plainly showed marks by which the voter could be readily identified, while in Fletcher v. Wall, 172 111. 426, the use of pasters was prohibited by statute. Apple v. Barcroft, 158 111. 649, and Kelly v. Adams, 183 111. 193, deter- mined that two straight marks through the circles and squares 158 MASSACHUSETTS ELECTION CASES — 1915. on a printed ballot were not crosses; that a cross to the right of the name of a candidate, between such name and the square opposite the name of an opposing candidate, did not sufficiently show the intention of the voter; that a ballot marked only by pencil erasures of all the names on one ticket could not be counted; and that a ballot not officially endorsed by the judge of election was not a ballot within the statute, and that the ballot in question, which bore two sets of crosses over the printed names of eight of the candidates for office, with a non- descript mark shaped like a large hook upon one of the crosses, contained distinguishing marks. • A further review is unnecessary. The decisions as to what constitute marks which invalidate the ballot depend upon the construction of local statutes and are not uniform, but we have found none exactly similar to the case at bar. See 15 Cyc. 357, 358, 359, and notes. The election, as we have said, was for the choice of selectmen for three years and other town officers for the ensuing year. The words "three years," appearing on the paster after the name of the person voted for, correctly stated the term of office required by the official ballot. St. 1913, c. 835, sees. 406, 407. If a dis- tinguishing mark is the use by the voter of numbers, letters, characters or symbols by which he can be identified and how he voted determined, the words of themselves do not disclose the voter's identity, and whether by some prearrangement or understanding they were deliberately so intended was a question of fact upon which the finding for the respondents by the single justice is conclusive. Voorhses v. Arnold, 108 Iowa, 77; Kelso v. Wright, 110 Iowa, 560; Boston Supply Co. v. Rubin, 214 Mass. 217, 220. If it be suggested that the blank spaces enable the voter to insert the name of any person not printed on the ballot, section 259 reads that those spaces are left in which "the voter may insert" such names. The statute does not say that he must use this mode of expressing his will or his ballot is defective, If the construction by implication the petitioner urges is adopted, he gets an office to which he has not been elected, unless the will of a majority of the voters at an election, where no fraud or misconduct appears or is claimed, is nullified, a result wholly inconsistent with the spirit of our election laws. The Legislature, if it intended to restrict the voter to the use of the blank spaces alone, should have directed in appropriate language that this was the only way in which the voter could express an independent choice. RAY V. REGISTRARS OF VOTERS, ASHLAND. SUP. JUD. CT., 1915. 159 The petitioner also relies on Miner v. Olin, 159 Mass. 487, as having decided that the voter no longer can prepare his own ballot except by the insertion of names in the spaces left blank. But the only questions there considered were the constitutionality of the provisions of St. 1893, c. 417, relating to caucuses and the placing of names of candidates not thus nominated on the official ballot by the Secretary of the Commonwealth. It must be borne in mind that our laws relating to elections are enacted not merely to preserve the purity and secrecy of the ballot and to curb, in so far as possible, corrupt practices, but to ascertain and not to thwart the popular will honestly expressed. Blackmer v. Hildreth, 181 Mass. 29, 31. The St. of 1913, c. 835, sec. 280, provides that pasters which are to be placed on the official ballot shall conform, as to names, residences and political designations of candidates and the size of the type in which the names shall be printed with the re- quirements of sections 258 and 261, where the names of all candidates not here material "shall be in capital letters not less than one eighth of an inch nor more than one quarter of an inch in height." The single justice having found that the name on the pasters was not in conformity with the statute, except as to the initial letters of the name printed thereon, the petitioner further contends that for this reason these ballots are defective. If the voter had chosen to write or even print in the blank space the name of the person for whom he desired to vote, followed by a cross in the appropriate space, the ballot would have been counted under St. 1913. c. 835, sec. 292, although the size of the letters used did not conform with the requirement of section 261. Cole v. Tucker, 164 Mass. 486, 488. It would follow from the petitioner's view that, if the voter chooses to use a slip on which the name had been similarly printed with the appropriate designation, the ballot is defective because the letters are not of statutory size. Or, in other words, the first class of voters c&n have their votes counted, while those using the second mode practically are disfranchised, which, in the opinion of a majority of the court, cannot be reached under the statute. O'Connell v. Mathews, 177 Mass. 518, 521. The statute, as to all the questions raised, being directory and not mandatory, the board of registrars rightly counted these ballots, and the petition by the terms of the report is to be dismissed. Sewall v. Jones, 9 Pick. 412, 414; Torrey v. Millbury, 21 Pick. 64, 67; Green v. Holway, 101 Mass. 243, 248; Taunton v. County of Bristol, 213 Mass. 222, 224. So ordered. 160 MASSACHUSETTS ELECTION CASES — 1916. SUPREME JUDICIAL COURT. Joseph J. Dinan and Others v. Simon Swig. (Repoeted in 223 Mass. 516.) Suffolk, March 20, 1916 — April 6, 1916. Present, Rttgg, C.J., Loring, Braley, DeCourcy, Crosby, Pierce and Carroll, JJ. Constitutional Law. Legislature. Elections. — So much of St. 1914, c. 783, sec. 10, as undertakes to impose upon the courts the duty of inquiry into corrupt prac- tices in connection with the election of members of the General Court is contrary to chapter 1, section III, Article X, of the Constitution, which provides that "The house of representatives shall be the judge of the returns, elections, and qualifications of its own members," and also to Art. 30 of the Declaration of Rights, which declares the separation of the legislative and judicial departments of the government. Rugg, C.J. This is a petition brought under St. 1913, c. 835, sec. 369, as amended by St. 1914, c. 783, sec. 10, which relates to corrupt practices in elections, against the respondent, who was elected a member of the General Court of the Commonwealth for 1916. Summarily stated, the statute, so far as here material, requires that, upon petition of five or more voters having reason- able cause to believe that there has been committed by a success- ful candidate (for whom they had a right to vote), in connection with his election or in his interest and behalf, a corrupt practice as defined in the act, three judges of the Superior Court shall investigate the election. If after a hearing it is found that such corrupt practice has been committed, then the court is given power to enter a decree (section 10 (#)), "declaring void the election of the defendant to the office in question, and ousting and excluding him from such office and declaring the office vacant: providing, however, that if an election petition is brought to investigate the election of a member of the senate or house of representatives of the commonwealth, or of the United States Congress, and the court or a majority of them shall find that violations of this act have been committed with reference to such election, of such a nature that a decree would otherwise be entered declaring void the election or ousting or excluding the candidate from such office and declaring the office vacant, the court shall, subject to the limitations and conditions hereinbefore prescribed, enter a decree declaring that with respect to the election of the said candidate a corrupt practice was committed and setting forth the facts relative to such finding, and shall DINAN V. SWIG. SUP. JUD. CT., 1916. 161 forthwith certify the decree and declaration to the secretary of the commonwealth, to be by him transmitted to the presiding officer of the legislative body to which the defendant was elected. " Proceedings have been had in accordance with the terms of this statute, and a finding with appropriate details has been made that the respondent, elected a member of the House of Representatives of the Commonwealth, committed corrupt prac- tices in connection with his election. The three judges x then reported to this court among other matters the question whether the statute is constitutional so far as it imposes duties upon the court with reference to the election of a member of the Legis- lature. The pertinent provision of the Constitution is in chapter 1, section III, Article X: "The house of representatives shall be the judge of the returns, elections, and qualifications of its own members, as pointed out in the constitution. ..." The power to pass upon the election and qualification of its own members thus is vested exclusively in each branch of the General Court. No other department of the government has any authority under the Constitution to adjudicate upon that sub- ject. The grant of power is comprehensive, full and complete. It is necessarily exclusive, for the Constitution contains no words permitting either branch of the Legislature to delegate or share that power. It must remain where the sovereign authority of the State has placed it. General phrases elsewhere in the Con- stitution, which in the absence of an explicit imposition of power and duty would permit the enactment of laws to govern the subject, cannot narrow or impair the positive declaration of the people's will that this power is vested solely in the Senate and House, respectively. It is a prerogative belonging to each house, which each alone can exercise. It is not susceptible of being deputed. As was said by Chief Justice Gray in Peabody v. School Committee of Boston, 115 Mass. 383, at page 384: "It cannot be doubted that either branch of the Legislature is thus made the final and exclusive judge of all questions whether of law or of fact, respecting such elections, returns or qualifications, so far as they are involved in the determination of the right of any person to be a member thereof. " If the statute should be construed as conferring upon the three judges of the Superior Court final jurisdiction to pass upon the issue whether a successful candidate had been guilty of corrupt 1 Fox, Jenney, and McLaughlin. 162 MASSACHUSETTS ELECTION CASES — 1916. practices, it would be in derogation of the express grant of the Constitution because it would deprive each branch of the Legis- lature of the unlimited right to be " the judge of the . . . elec- tions, and qualifications of its own members." No legislative body can be the sole judge of the election and qualifications of its members when it is obliged to accept as final a decision touching the purity of the election of one of its members made by another department of the government in an inquiry to which that legislative body is not a party and which it has not caused to be instituted. The proceeding created by the instant statute does not ema- nate from either branch of the Legislature. It is set in motion only by the initiative of five or more voters. It may result in sending to the legislative branch, to which the defendant has been elected, a decree setting forth the determination of the judges that a corrupt practice has been committed. That decree may be ignored by the branch of the legislature to which it is sent. There is no legal compulsion resting upon that branch to take action respecting such decree. Only its sense of self-respect and duty to the whole Commonwealth to purge itself of a mem- ber unworthy of his office would impel it to pay heed to the decree. If action should be taken, it still would be open for that branch of the Legislature to exercise its constitutional pre- rogative, and to examine the whole issue for itself and to decide whether the election and qualification of the member were such that he ought to be expelled and the election declared void. That decision, when made by the branch of the Legislature con- cerned, would stand as final, and could not be disputed or revised by any court or authority. Coffin v. Coffin, 4 Mass. 1, 34-36; Opinion of the Justices, 10 Gray 613, 623; Hiss v. Bartlett, 3 Gray, 468, 472, 475. Such decision would nullify the efficacy of the finding of the facts set forth in the decree of the three judges of the Superior Court. The Constitution confers upon each branch of the Legislature by necessary implication the power to determine for itself the procedure as to settlement of controversies touching the election and qualification of its own members, and the ascertainment of all facts relative thereto, and to change the same at will. That established by one branch might differ from that adopted by the other. But the statute, so long as it stands, imposes upon both branches uniformity of procedure so far as concerns this partic- ular matter. One branch cannot ignore it without a repeal of the statute. A repeal can be accomplished only by affirmative vote DINAN V. SWIG. SUP. JUD. CT., 1916. 163 of both branches and approval by the Governor. Yet the Constitution plainly gives to each branch of each successive Legislature an untrammeled power to proceed in its own manner and according to its own judgment without seeking the concur- rence or approval of the other branch, or of the Executive. This discretion to determine the method of procedure cannot under the Constitution be abrogated by action taken by an earlier Legislature. The only way open to either branch of the Legislature under the Constitution to obtain the assistance of the judicial depart- ments of government in the performance of the duties reposed in it by the Constitution is under chapter 3, Article II. That goes no further than to enable either branch to secure the advice of the justices of the Supreme Judicial Court "upon important questions of law, and upon solemn occasions." It does not extend to the determination of questions of fact. It does not authorize the imposition upon the courts of functions vested by the Constitution exclusively in other departments of government. Case of Supervisors of Election, 114 Mass. 247; Boston v. Chelsea, 212 Mass. 127. The statute cannot be supported by chapter 1, section III, Article XI, of the Constitution. The final paragraph of that article is : " And the senate and house of representatives may try and determine all cases where their rights and privileges are concerned, and which, by the constitution, they have authority to try and determine, by committees of their own members, or in such other way as they may respectively think best." It is still "the senate and house of representatives" which must hold the trial and make the decision. The Senate or House of Representatives of any particular Legislature to which the question may be presented has the power to decide whether to try such cases by "committees of their own members, or in such other way as they may respectively think best." This grant of absolute power cannot be fettered by the opinion of both branches of some preceding Legislature expressed in a statute. Each branch of the Legislature may try and determine the question as to violation of the corrupt practices act by a committee of its own members or doubtless by a committee otherwise constituted. But it cannot require the judiciary as a co-ordinate department of government to hold a trial and render a decision which in its nature must be purely tentative or advisory and wholly subject to its own review, revision, retrial or inaction. This would be imposing upon the judicial 164 MASSACHUSETTS ELECTION CASES — 1916. department of the government the investigation of a matter not resulting in a judgment, not finally fixing the rights of parties and not ultimately determining a state of acts. It would subject a proceeding arising in a court to modification, suspension, annulment or affirmation by a part of the legislative department of government before it would possess any definitive force. Mani- festly this is in contravention of Art. 30 of the Declaration of Rights, which marks the entire separation of the legislative and judicial departments of the government. Denny v. Mattoon, 2 Allen, 361, 379; Opinion of the Justices, 201 Mass. 609, 612. The statute cannot be upheld upon the ground which supports the appointment of commissioners to perform duties lying close to the line between the legislative and judicial faculities, but partaking chiefly of the latter nature, illustrated by Boston, Petitioner, 221 Mass. 468, 474, and cases there collected, — Northampton Bridge Case, 116 Mass. 442; Brayton v. Fall River, 124 Mass. 95; County Commissioners, Petitioners, 140 Mass. 181; In m Metropolitan Park Commissioners, Petitioners, 209 Mass. 381; and similar cases. In all those cases the Legislature reserves no power of revision, but the whole matter proceeds to a final judgment in the courts. For these reasons we are constrained to hold that so much of St. 1914, c. 783, sec. 10, as undertakes to impose upon the courts the duty of simple inquiry into corrupt practices in connection with the election of members of the General Court is contrary to the terms of the Constitution. No opinion is intimated as to the validity of other parts of the act. It is unnecessary to con- sider the other questions reported. It follows that the first question, 1 so far as relates to the proceeding at bar, must be answered in the negative. So ordered. The case was argued at the bar in March, 1916, before Rugg, C.J., Braley, De Cottrcy, Pierce and Carroll, JJ., and afterwards was submitted on briefs to all the justices. J. P. Wahh {G. F. Grimes with him) for the petitioners. H. Parker for the respondent. i The first question reported by the three judges was as follows: "1. Is St. 1914, c. 783, as far as it imposes duties upon this [the Superior] court with reference to a member of the Legislature, valid? " ATTY.-GEN. V. APPORTIONMENT COM'rS. SUP. JUD. CT., 1916. 165 supreme judicial court. Attorney-General v. Suffolk County Apportionment Commissioners. Henry L. Higginson and Others v. Same. Frank N. Nay and Others v. Same. Tilton S. Bell v. Same. Herman Hormel v. Same. George F. Whipple and Others v. Same. Petitions for Writs of Mandamus. James Donovan v. Same. W. Prentiss Parker and Others v. Same. David T. Montague and Others v. Same. George F. Whipple and Others v. Same. Petition for Writs of Certiorari. George E. Brock v. Same. Bill in Equity. (Reported in 224 Mass. 598.) Suffolk, Sept. 5, 1916 — Sept. 8, 1916. Present, Rtjgg, C.J., Lorwg, Braley, DeCourcy and Carroll, JJ. Apportionment Commissioners. — On a petition by the Attorney-General for a writ of mandamus addressed to the Suffolk County apportionment commissioners elected under St. 1913, c. 835, sec. 390, declaring an apportionment of representa- tion in the legislative districts in that county attempted to be made by the re- spondents to be void as not in conformity with the Constitution, and ordering them to proceed "as soon as may be'' to divide the county of Suffolk into representative districts so as to apportion the number of representatives assigned to that county "equally, as nearly as may be, according to the relative number of legal voters" in the several districts, a clause in the reservation for determination of the case by this court, stating that, if the question whether the respondents acted in good faith was material, this court might draw conclusions from the apportionment itself, was disregarded by this court, because this court has no power to decide facts in a proceeding at law, and the question of good faith, if material, was one of fact, and it was held that the case must be considered by the court on the footing that the good faith of the commissioners was presumed. Constitutional Law. — By Article 21 of the Amendments to the Constitution, which provides that a "board of special commissioners . . . shall, on the first Tuesday of August next after each assignment of representatives to each county . . . proceed, as soon as may be, to divide the same into representative districts of contiguous territory, so as to apportion the representation assigned to each county equally, as nearly as may be, according to the relative number of legal voters in the several districts of each county," the principle of practical equality of representation among all the voters of the Commonwealth is established. 166 MASSACHUSETTS ELECTION CASES — 1916. The Suffolk County apportionment commissioners elected under St. 1913, c. 835, sec. 390, in 1915, and in every tenth year thereafter, who are directed to " so divide said county into representative districts of contiguous territory as to apportion the representation of said county, as nearly as may be, according to the number of voters in the several districts," must perform their duties as directed by Article 21 of the Amendments to the Constitution; and, where it is manifest from the inspection of an apportionment attempted to be made by them that there is grave, unnecessary and unreasonable inequality in the representation assigned by them to different districts, the Constitution has been violated and their attempted action is void. Apportionment of Representatives. — Among the inequalities, which were held to have been sufficient to make the attempted apportionment void, was the appor- tioning to one district of two representatives for 3,913 voters, and in another district giving only one representative for 6,182 voters. Another inequality was apportioning one representative to a district with almost 5,000 voters and appor- tioning three representatives to another district with about 6,000 voters. There were many other similar disparities showing gross and palpable inequalities extend- ing to a considerable number of the districts. Mandamus. — A petition for a writ of mandamus addressed to the Suffolk County apportionment commissioners, who had filed a report purporting to make an apportionment of representation in the legislative districts in that county which was void as in violation of Article 21 of the Amendments to the Constitution, commanding them to proceed with the provisions of the Constitution, affords the appropriate form of relief, and is a remedy expressly provided by Section 502 of the statute named for enforcing the provisions of that chapter. The remedy by mandamus described above is available to a citizen and voter interested in the execution of the laws. Attorney-General. — In the case above described it was held that, the public interests being involved, the Attorney-General might institute and maintain a petition for a writ of mandamus to vindicate the public right. Mandamus. — In the case above described it was held that in issuing the writ of mandamus no specific time need be fixed for the completion by the commissioners of their work, it being assumed that they would be actuated by a consciousness oi serious, public duty with the obligations thereby entailed. Rugg, C.J. These proceedings are brought to test the legality of the division into representative districts of the fifty-four representatives to the General Court apportioned to Suffolk County by St. 1916, c. 270, sec. 24. This division is required to be made by a board of nine commissioners elected by the voters of Suffolk County. St. 1913, c. 835, sec. 390, provides as follows : — "At the annual state election in the year nineteen hundred and fifteen, and in every tenth year thereafter, nine commis- sioners shall be elected for the county of Suffolk, for the per- formance of the duties hereinafter specified. Five of said com- missioners shall be residents of and voters in the city of Boston and shall be elected by the voters of that city; two shall be residents of and voters in the city of Chelsea and shall be elected by the voters of that city; one shall be a resident of and a voter in the town of Winthrop and shall be elected by the ATTY.-GEN. V. APPORTIONMENT COM'RS. SUP. JUD. CT., 1916. 167 voters of that town; and one shall be a resident of and a voter in the town of Revere and shall be elected by the voters of that town. Said commissioners shall hold office for one year from the first Wednesday of January next after their election. At their first meeting, they shall organize by choosing a chair- man, who shall be one of their number, and a clerk. The city of Boston shall provide them with a suitable office, and room for hearings and shall allow and pay to them for compensation a sum not exceeding five hundred dollars each, said sum to be determined by the governor and council, and a further sum of not more than seven hundred dollars for clerk hire, stationery and incidental expenses. "The said commissioners shall, on the first Tuesday of August next after the secretary of the commonwealth shall have certified to them the number of representatives to which the county of Suffolk may be entitled, as determined by the general court, assemble in the city of Boston, and, as soon as may be, shall so divide said county into representative districts of contiguous territory as to apportion the representation of said county, as nearly as may be, according to the number of voters in the several districts. Such districts shall be so formed that no ward of a city and no town shall be divided, and no district shall be so formed that it shall be entitled to elect more than three repre- sentatives. . . ." One of the commissioners has deceased, and the remaining eight are the respondents in each of the petitions and the de- fendants in the bill in equity in which the Secretary of the Commonwealth also is joined as a defendant. A report has been filed by the commissioners. The division into representative districts therein set forth is assailed on the ground that it has not been made in accordance with the re- quirement of the Constitution. The pertinent provision of the Constitution is in Article 21 of the Amendments, and is as follows: — ■ "A census of the legal voters of each city and town, on the first day of May, shall be taken and returned into the office of the secretary of the commonwealth, on or before the last day of June, in the year one thousand eight hundred and fifty- seven; and a census of the inhabitants of each city and town, in the year one thousand eight hundred and sixty-five, and of every tenth year thereafter. In the census aforesaid, a special enumeration shall be made of the legal voters; and in each city, said enumeration shall specify the number of such legal voters 168 MASSACHUSETTS ELECTION CASES — 1916. aforesaid, residing in each ward of such city. The enumeration aforesaid shall determine the apportionment of representatives for the periods between the taking of the census. "The house of representatives shall consist of two hundred and forty members, which shall be apportioned by the legis- lature, at its first session after the return of each enumeration as aforesaid, to the several counties of the commonwealth, equally, as nearly as may be, according to their relative numbers of legal voters, as ascertained by the next preceding special enumeration; and the town of Cohasset, in the county of Norfolk, shall, for this purpose, as well as in the formation of districts, as hereinafter provided, be considered a part of the county of Plymouth; and it shall be the duty of the Secretary of the commonwealth, to certify, as soon as may be after it is determined by the legislature, the number of representatives to which each county shall be entitled, to the board authorized to divide each county into representative districts. The mayor and aldermen of the city of Boston, the county commissioners of other counties than Suffolk, — or in lieu of the mayor and aldermen of the city of Boston, or of the county commissioners in each county, to be elected by the people of the county, or of the towns therein, as may for that purpose be provided by law, — shall, on the first Tuesday of August next after each assignment of representatives to each county, assemble at a shire town of their respective counties, and proceed, as soon as may be, to divide the same into representative districts of contiguous territory, so as to apportion the representation assigned to each county equally, as nearly as may be, according to the relative number of legal voters in the several districts of each county; and such districts shall be so formed that no town or ward of a city shall be divided therefor, not shall any district be made which shall be entitled to elect more than three representatives." The court has jurisdiction to determine whether the commis- sioners in making the division have violated the requirements of this article of amendment to the Constitution. Scarcely any right more nearly relates to the liberty of the citizen and the independence and the equality of the freeman in a republic than the method and conditions of his voting and the efficacy of his ballot, when cast, for representatives in the legislative department of government. It was said in the Opinion of the Justices, 10 Gray, 613, at page 615, "Nothing can more deeply ATTY.-GEN. V. APPORTIONMENT COM'RS. SUP. JUD. CT., 1916. 169 concern the freedom, stability, the harmony and success of a representative republican government, nothing more directly affect the political and civil rights of all its members and sub- jects, than the manner in which the popular branch of its legis- lative department is constituted." The right to vote is a fundamental personal and political right. The equal right of all qualified to elect officers is one of the securities, of the Decla- ration of Rights, Articles 1-9. Unlawful interference with the right to vote, whether on the part of public officers or private persons, is a private wrong for which the law affords a remedy, although it may also have significant political results. Capen v. Foster, 12 Pick. 485; Lamed v. Wheeler, 140 Mass. 390. The right of every voter to participate in the election of repre- sentatives to the General Court "equally, as nearly as may be," with all his fellows is secured by the twenty-first amendment to the Constitution. An act of the Legislature limiting or in any way interfering with this right would be invalid. See Kinneen v. Wells, 144 Mass. 497. County commissioners or special commissioners in performing the duties reposed in them by the Constitution stand on no higher ground than does the Legis- lature in performing its constitutional functions. While the right to vote for members of the Legislature is in a sense a political right, it is also a precious personal right. The duty of dividing the authorized number of representatives among the legal voters is in a sense political, yet so far as it affects contrary to the Constitution the rights of citizens, such an infringement is cognizable in the courts when presented in an appropriate proceeding between proper parties. On principle the conclusion is irresistible that the court has jurisdiction to redress the wrongs here alleged. The decisions of other States are numerous and harmonious to the same effect. The circumstance that political considerations may be con- nected with rights affords no justification to courts for refusal to adjudicate causes rightly pending before them. Such a con- troversy, even though political in many of its aspects, is of judicial cognizance. Warren v. Mayor and Aldermen of Charles- town, 2 Gray, 84; Stone v. Charlestown, 114 Mass. 214; McPher- son v. Secretary of State, 146 U. S. 1, 23. There is nothing at variance with this conclusion in Opinion of the Justices, 10 Gray, 613. That discussion was directed wholly to the powers of the Legislature to correct alleged errors 170 MASSACHUSETTS ELECTION CASES — 1916. in a division of representatives. The jurisdiction of the courts was not involved in any of the questions submitted to the justices. The words of the justices must be read as applicable to the subject under consideration and not treated as of such general purport as to cover instances not then before their minds. Swan v. Justices of the Superior Court, 222 Mass. 542, 545. But it appears from the report of the election case of Lothrop, Petitioner, Mass. Election Cases (Loring & Russell's ed.), 49, 54, in reference to which that opinion was given, that the jurisdiction of the Supreme Judicial Court to correct errors in such a case was assumed by the legislative committee. More- over, although the jurisdiction of the court was not pertinent to answers to the inquiries of the House of Representatives, it there was said in substance only that "the. doings and returns (of the county commissioners, of the mayor and aldermen of Boston or of special commissioners) made conformably to the article of amendment" were conclusive. Nothing was intimated as to "doings and returns" manifestly contrary to the terms of that article of amendment to the Constitution. The cases come before us on a "report and reservation" made by a single justice. Against the objection of the respondents a clause was inserted to the effect that, "If the question whether the respondents acted in good faith is material, the court, in any of the said proceedings except the petitions for certiorari, may draw conclusions from the apportionment itself, notwithstanding the failure of the petitioners to join issue on the allegations of good faith contained in the answers." This clause in the reser- vation must be disregarded. If good faith is material, it is a fact and must be found by a tribunal authorized to try and decide facts. This court has no power to decide facts in a proceeding at law. Electric Welding Co. v. Prince, 200 Mass. 386; Foster v. Boston Elevated Railway, 214 Mass. 61. The cases must be considered on the footing that the good faith of the special commissioners is presumed. The particular ground of attack is that the report of the special commissioners shows that they have failed "to divide" the county of Suffolk "into representative districts . . . . so as to apportion the representation assigned to" that county "equally, as nearly as may be, according to the relative number of legal voters in the several districts." Article 21 of the Amendments to the Constitution. The great principle established by this amendment is equality of representation among all the voters of ATTY.-GEN. V. APPORTIONMENT COM'RS. SUP. JUD. CT., 1916. 171 the Commonwealth. That is a fundamental principle of repre- sentative government. It is pre-eminently so in a State whose Declaration of Rights declares that "all men are born free and equal," and in a nation whose Declaration of Independence asserts that "all men are created equal." There can be no equality among citizens if the vote of one counts for consider- ably more than that of another in electing public officers. The true spirit and meaning of the Constitution is that each voter has an equal voice in the enactment of laws and in the election of officers of the State. Such equality must be secured in all laws for the choosing of representatives in the General Court, or the Constitution is violated. One voter or one group of voters cannot be given a greatly preponderating power in shaping legislation through the election of a representative or represent- atives by a disproportionately small number of voters as com- pared with another group, and still the equality between voters secured by the Constitution be preserved. Inequality of rep- resentation apparent on the face of the apportionment offends against this constitutional provision, — a provision of the very essence of any conception of equality among voters, each of whom is the peer in political right of every other. Absolute equality of representation is not required by the article of amendment. There are other inflexible conditions of the apportionment which must be observed and which prevent exactness of equality. The representative districts must be within the several counties; they cannot be formed by the di- vision of towns or wards of cities. They must be made up of contiguous territory, and no district can be given more than three representatives. But within these limitations there must be the nearest approximation to equality of representations which is reasonably practicable. The words of the amendment, that the representatives must be apportioned upon the basis of equality "as nearly as may be," does not mean mathematical accuracy of equality. They do not aptly express that idea. The words import some flexibility in the division. Something is left to the sound judgment of the body charged with making the apportion- ment and division. But the rule established by the Constitution is plain. The total number of two hundred and forty members of the House of Representatives must first be divided by the Legislature be- tween the several counties "equally, as nearly as may be, according to their relative numbers of legal voters," with the ex- ception of the town of Cohasset, which, although in the county 172 MASSACHUSETTS ELECTION CASES — 1916. of Norfolk, is for this purpose to be treated as a part of the county of Plymouth. The commissioners are then to make the division of the several counties into representative districts. In doing this five general rules are laid down by the amendment: (1) They must proceed within their respective counties, with the single exception of Cohasset. (2) No town or ward of a city can be divided. (3) The territory of each district must be con- tiguous. (4) No more than three representatives can be as- signed to one district. (5) The representatives must be divided so that "as nearly as may be" the same number of voters shall in every instance be entitled to an equal representation in the House. These five mandates all stand on the same footing. One is no more imperative than another. The only guide for determining equality to which resort may be had under the Constitution is the "numbers of legal voters, as ascertained by the next preceding special enumeration," provided for by the first paragraph of the Twenty-first Article of Amendment. That article says that that enumeration "shall determine the apportionment of representatives for the periods between the taking of the census." It would be hard to conceive words ex- pressive of a more positive and unmistakable command. Its fundamental idea is that the special enumeration of legal voters alone shall be considered in making the apportionment and di- vision. Opinion of the Justices, 142 Mass. 601, 604; Opinion of the Justices, 157 Mass. 595. In the performance of the duty of providing equal representa- tion within any county, the commissioners naturally, if not neces- sarily, would divide the whole number of legal voters in the county by the number of representatives allotted to that county. Thus the unit of representation or the ratio between the voters and the representatives is found. Upon this unit or ratio the representative districts must be formed, each having, as nearly as may be, in view of the other mandatory requirements of the amendment, a number of legal voters equal to the unit or ratio thus found for one representative, or twice that number for two representatives, or three times that number for three represent- atives. Equality in the ratio between voters and representatives amongst the several districts is the command of the people as expressed in the Constitution. The commissioners are bound by the most sacred considerations of official duty to follow this plain command of the Constitution in forming the districts and in dividing between the districts the number of representatives. This is in substance the statement of the duty of the officers ATTY.-GEN. V. APPORTIONMENT COM'RS. SUP. JUD. CT., 1916. 173 charged with the duty of forming representative districts and dividing among them the representatives set out in Opinion of the Justices, 10 Gray, 613, 619. If each board of officers in each of the counties follows this plain rule of the Constitution, then there will be secured to every voter throughout the State that equality of influence in shaping legislation which it is the in- dubitable design of the Constitution to maintain. It is not every inequality between the several representative districts which will be fatal in a constitutional sense. It is in- evitable that there must be in the several districts some vari- ation from the unit of representation found by dividing the legal voters of the county by the number of representatives ap- portioned to that county. These variations may be augmented where there are numerous towns and cities with different num- bers of wards and of legal voters. The difficulties may be con- siderable. There is abundant room for the exercise of reason and judgment in the formation of the districts and in disposition to be made of the excess or deficiency of the number of voters as compared with the unit of representation or ratio between voters and representatives, which unavoidably must be found even with the most conscientious efforts. Many questions may arise which cannot be solved by computation and which may require the exercise of a high degree of sagacity. A wide dis- cretion must of necessity be exercised by the commissioners. Doubtless some apparent" inequalities, not amounting to a gross disparity, might be explained by reference to the complexities arising from town and ward lines and the different numbers of legal voters found in each. Not every deviation from exact uniformity in the ratio between legal voters and representatives would justify resort to the courts or warrant the conclusion that the Constitution had been ignored. The court would be slow to set aside an apportionment which appeared by an exercise of sound discretion to have followed the requirements of the Con- stitution and to be an approximation to equality. But where it is manifest on its face from a mere inspection of the apportion- ment that the Constitution has been transgressed, then the division made by the commissioners cannot stand. When fair- minded men from an examination of the apportionment and di- vision can Entertain no reasonable doubt that there is a grave, unnecessary and unreasonable inequality between different dis- tricts, the Constitution has been violated and it is the duty of the court so to declare. Baird v. Supervisors of Kings County, 138 N. Y. 95, 114. 174 MASSACHUSETTS ELECTION CASES — 1916. Tried by this test there can be no uncertainty in the result to be reached in the case at bar. The inequality is obvious and indisputable. It is momentous, excessive and might have been avoided. No argument is needed. It is demonstrated by a statement of the facts. The unit of representation or ratio of legal voters to representatives in Suffolk County obtained by dividing its 175,890 legal voters by the 54 representatives is 3,257|, and may be regarded for convenience as 3,258. Where a less number are given one representative the inequality increases their voting power, and where a larger number are given one representative the inequality diminishes their voting power in the House of Representatives. The commissioners divided Boston (which is by far the largest part of Suffolk County) into repre- sentative districts by adopting as such districts the several wards, except that they combined wards 19 and 21 into one district. Therefore no such complexity arises as might exist in the com- bination of towns or of towns with one or more wards of a city. The most glaring inequality is between District No. 26, with 3,913 legal voters, to which two representatives are given, or one for 1,957 voters, and District No. 16, with 6,182 legal voters, to which one representative is given. A voter in District No. 26 thus would have more than three times the voting power of a voter in District No. 16 in the election of representatives to the General Court. The variation from the unit of legal voters for one representative as found above is from 1,301 below in District No. 26 to 2,924 above in District No. 16. The dis- parity between the two is more than 3 to 1. Any attempt to conform to the equality of representation required by the Con- stitution as to these two districts would have reversed the ap- portionment and given two representatives to District No. 16 and one to District No. 26. Districts Nos. 24 and 25 contain, respectively, 4.842 and 4,282 voters, and each is given one representative, while Districts Nos. 9 and 10, containing, respec- tively, 6,151 and 6,056 voters, are each given three representa- tives, being one representative to 2,051 and 2,018 voters, re- spectively, or a disparity of more than 2 to 1 in each instance. Districts Nos. 14, 17, 18, 20 and 22, with voters varying from 6,105 to 5,666, but no one of them equaling in number the voters of District No. 16 are each given two representatives, a dis- parity of more than 2 to 1 as compared with District No. 16, which is given only one representative. The two largest dis- tricts, Nos. 7 and 19, containing, respectively, 10,714 and 11,571 voters, are given two representatives each, while Dis- ATTY.-GEN. V. APPORTIONMENT COM'RS. SUP. JUD. CT., 1916. 175 tricts Nos. 5, 9 and 10, each considerably smaller, and contain- ing, respectively, 7,946, 6,151 and 6,056, each are given three representatives. Three representatives to each of the two largest districts would have given in the smaller of the two one representative to 3,571 legal voters, or 313 more than the unit, while in the largest of those to which three have been given there is one representative for only 2,649, or 611. less than the unit, and in the smallest of those to which three have been given there is one representative for 2,019 voters, or 1,239 below the unit of representation. Plainly any effort at an approxima- tion to equality would have given three representatives to each of the two largest districts. District No. 6, with 8,618 voters, is given two representatives, while, as just pointed out, three districts with a less number of voters are given three representa- tives. Three representatives to District No. 6 would have been one for 2,873 voters, or only 385 below the unit, a very ap- preciably less number below the unit than appears in Districts Nos. 3, 4, 5, 9, 10, 20, 22 and 26. Three representatives have been assigned to District No. 9 and also to District No. 10, but the population of each, being 6,151 and 6,056, respectively, shows that, if given two representatives, they still would have a larger representation according to legal voters than the correct ratio. These references to the report of the commissioners show such numerous and flagrant deviations from equality of representation that it is impossible to reconcile the apportionment with the constitutional requirement. The inequality is gross and palpable and extends to a considerable number of districts. Even a cur- sory examination of the report would show that a far more equal apportionment might have been made by following the plain mandate of the Constitution. The conclusion is irresistible that the constitutional require- ment of equality has been ignored. It is not open to reasonable controversy. Tried by the standard of equality of representa- tion fixed by the Constitution, the result reached by the Com- missioners appears arbitrary. It has been urged that the com- missioners have been hampered by ward lines. But they are not responsible for the ward lines. These have been established by independent authority, and the commissioners must accept them as they find them. Fitzgerald v. Mayor of Boston, 220 Mass. 503. They must make a determination of the nearest practicable approach to equality of representation on the exist- 176 MASSACHUSETTS ELECTION CASES — 1916. ing ward lines. The report of the commissioners, being plainly not conformable to the Constitution, has no validity. It has been argued ably in behalf of the commissioners that the grave results which will flow from declaring the report null and void should cause hesitation in sustaining the petitioners' contentions. These considerations may be entitled to weight in determining whether a constitutional mandate has been violated. But when once it has become evident beyond a doubt that the Constitution has been infringed, and that rights indisputably secured by it have been trampled, then there is no other way but to maintain the Constitution when relief is promptly sought. No consequence of adherence to the Constitution can be so evil as a failure to abide by its terms under the circumstances here disclosed. Mandamus affords the appropriate form of relief. It is the remedy to which resort usually is had to set aside the illegal performance of duty and to compel the performance of duty according to law, by public officers entrusted with discretionary, administrative or political functions when it is their duty to act. Flanders v. Roberts, 182 Mass. 524, 529; Cox v. Segee, 206 Mass. 380; Money weight Scale Co. v. McBride, 199 Mass. 503, 505;- Attorney-General v. Boston, 123 Mass. 460, 479; Rea v. Aldermen of Everett, 217 Mass. 427; Luce v. Board of Ex- aminers of Dukes County, 153 Mass. 108; Keough v. Aldermen of Holyoke, 156 Mass. 403; Cheney v. Barker, 198 Mass. 356, 367; People v. Ammenwerth, 197 N. Y. 340. It is a remedy expressly provided by St. 1913, c. 835, sec. 502, for the enforcement of the provisions of the very act, under section 390 of which these commissioners were elected, and according to which they must perform their duties. It has been the remedy granted in most of the case cited earlier in this opinion as to the jurisdiction of the court. It is available in proper cases to an individual who is a citizen and voter and thus interested in the execution of the laws. Brewster v. Sherman, 195 Mass. 222. Where the public interests are involved, the Attorney-General may institute a petition for mandamus to vindicate the public right. Attorney-General v. City Council of Lawrence, 111 Mass. 90; Attorney-General v. Boston, 123 Mass. 460, 478; Wellington, Petitioner, 16 Pick. 87, 105. No discussion is needed to show that the composition of the House of Representatives, according to the requirement of the Constitution, is a matter of public concern. ATTY.-GEN. V. APPORTIONMENT COM'RS. SUP. JUD. CT., 1916. 177 The commissioners are still in office. By the express terms of sec. 390 of St. 1913, c. 835, "Said commissioners shall hold office for one year from the first Wednesday of January next after their election." These commissioners were elected in 1915. The report which they have already filed is a nullity. There- fore they have not performed their duty and are not fundi officio. It is now their plain duty to make a division and ap- portionment according to the Constitution. They are amenable to the court to this end. It has been urged that a special mandate be issued to the commissioners fixing a time within which a new and legal ap- portionment shall be filed. Doubtless the public exigency is great. The nomination and election of representatives to the Legislature from Suffolk County during the current year ap- parently can be accomplished only by the enactment of a special statute, for the time provided by the existing law for filing nomination papers expired before the present cases were entered in this court. St. 1913, c. 835, sees. 118, 120. A special statute to bring about this result can be enacted only by a special session of the Legislature. But it cannot be doubted that the commissioners will proceed with all speed to the per- formance of their duties in the light of the rules here laid down. This must be presumed in their favor. They must at present be familiar with all the facts which will enable them forthwith to act in conformity to the Constitution and laws. No specific time need now be fixed for the completion of their work. It must be assumed that they will be actuated by a solemn con- sciousness of serious public duty, with all the obligations thereby entailed. Since the several individual petitioners for writs of mandamus appear equally entitled to relief, and since only one order need be made, the remedy may be granted in the petition of the Attorney-General for mandamus. Let the entry be in that cause in substance, that the division and apportionment of the county of Suffolk into representative districts already made and filed by the commissioners is void as not in conformity to the Constitution, and that the commissioners must proceed "as soon as may be" to divide the county of Suffolk into repre- sentative districts so as to apportion the number of repre- sentatives assigned to that county "equally, as nearly as may be, according to the relative number of legal voters" in the several districts, and otherwise in conformity to the Constitution, and 178 MASSACHUSETTS ELECTION CASES — 1916. to make due report thereof as required by said article. Any- party may apply for further direction and relief. In each of the other petitions for mandamus the entry may be, demurrer over- ruled and petition dismissed without prejudice, for the reason that adequate relief is granted in the petition brought by the Attorney-General. In the petitions for certiorari the entry may be, petitions dismissed. The bill in equity may be dis- missed. So ordered. TV. A. Bute (T. J. Ahem with him) for the commissioners. TV. H. Hitchcock, Assistant Attorney-General (C. TV. Mulcahy with him) for the Attorney-General. N. Matthews (F. G. Goodale and J. E. Searle with him) for the individual petitioners and the plaintiff in the suit in equity. DONOVAN V. APPORTIONMENT COM'rS. SUP. JUD. CT., 1916. 179 supreme judicial court. James Donovan v. Suffolk County Apportionment Com- missioners. Herman Hormel v. Same. (Reported in 225 Mass. 55.) Suffolk, Sept. 26, 1916 — Oct. 5, 1916. Present, Rugg, C.J., Loring, Braley, Crosby, Pierce and Carroll, JJ. Constitutional Law. — An attempted apportionment of representation in the legislative districts of Suffolk County by commissioners elected under St. 1913, c. 835, sec. 390, which allots three representatives to 7,946 voters and only two representatives to 8,613 voters, and allots two representatives to 4,854 voters and only one representative to 5,596, is void, because it does not apportion the representatives assigned to Suffolk County "equally, as nearly as may be, accord- ing to the relative number of legal voters," as required by Article 21 of the Amendments to the Constitution. Apportionment of Representatives. — A petition for a writ of mandamus ad- dressed to the Suffolk County apportionment commissioners declaring void an attempted apportionment of representation in the legislative districts of that county, and ordering the commissioners to perform their duty in conformity to Article 21 of the Amendments to the Constitution, may be maintained by a voter in a district against which discrimination was made in the attempted apportion- ment. Evidence. — Upon the question of granting such a petition evidence as to the reasons that influenced the commissioners in making the apportionment sought to be set aside is immaterial, and the report of the commissioners must be judged by what appears on its face in the light of the facts judicially known to the court. Rugg, C.J. These two petitions for writs of mandamus are brought to set aside a report of the commissioners (elected ac- cording to St. 1913, c. 835, sec. 390) dividing Suffolk County into representative districts and apportioning among them the number of representatives allotted under St. 1916, c. 270, sec. 24, on the ground that it violates the rights of the petitioners secured by Article 21 of the Amendments to the Constitution. Since the decision of Attorney-General v. Apportionment Com- missioners, 224 Mass. 598, wherein it was necessary to declare their first report manifestly contrary to the provisions of the Constitution, the commissioners have filed this new and second report of apportionment. The present report is assailed as to four districts, each con- terminous with a ward of Boston. District No. 3, containing 4,854 legal voters, is given two representatives, or one for 2,427 legal voters. District No. 5, with 7,946 legal voters, is given 180 MASSACHUSETTS ELECTION CASES — 1916. three representatives. District No. 6, with 8,618 legal voters, is given two representatives. District No. 23, with 5,596 legal voters, is given one representative. The disparity between the smallest and largest number of legal voters for one representa- tive is the difference between 2,427 in District No. 3, and 5,596 in District No. 23, or 3,169. Each voter in Districts Nos. 3 and 5 is given more than twice the voting power for representatives in the General Court given to each voter in District No. 23. District No. 5 is given one more representative than is given to 672 more legal voters in District No. 6. District No. 3 is given one more representative than is given to District No. 23, with 742 more voters. The mandate of the Constitution is that the county shall be divided "into representative districts ... so as to apportion the representation assigned . . . equally, as nearly as may be, ac- cording to the relative number of legal voters in the several dis- tricts." It is manifest that the constitutional mandate has not been followed in this report. It is not an approximation to equally allot three representatives to 7,946 voters and only two representatives to 8,618 voters, and to allot two representatives to 4,854 voters and one representative to 5,596 voters. The number of these representatives is in inverse proportion to the number of voters. It requires no argument to demonstrate that a reversal of this allotment would be a much nearer approach to equality. This report confers special power in the election of representatives to voters in favored districts as compared with voters in other districts against which discrimination is made. This disparity in favor of the privileged districts as against the disparaged districts is not insignificant nor negligible, but, be- sides the additional discriminatory representation given to each favored district, is 672 in one instance and 742 in another, in themselves very considerable numbers as compared with 3,258 which is the representative unit of Suffolk County. Whenever this kind of inequality of apportionment has been before the courts it has been held to be contrary to the Constitu- tion. It has been said to be "arbitrary and capricious and against the vital principle of equality." Supervisors of Houghton County v. Secretary of State, 92 Mich. 638, 647, 653; Giddings v. Secretary of State, 93 Mich. 1, 13; Parker v. State, 133 Ind. 178, 197; Denney v. State, 144 Ind. 503, 535. See, also, Goodrich v. Lunenburg, 9 Gray, 38, and Stone v. Bean, 15 Gray, 42. This report does not apportion the representatives assigned to Suffolk County "equally, as nearly as may be, according to the relative DONOVAN V. APPOKTIONMENT COM'KS. SUP. JUD. CT., 1916. 181 number of legal voters." The inequality disclosed on the face of this report is grave and might have been avoided to a con- siderable degree if the rule established by the Constitution had been heeded. It is not in accordance with the Constitution. It is contrary to the principles discussed at length in Attorney- General v. Apportionment Commissioners, 224 Mass. 598. The petitioners are entitled to maintain the present petitions. They are voters in districts against which discrimination is made. Attorney-General v. Apportionment Commissioners, 224 Mass. 598. The single justice 1 heard evidence as to the reasons which influenced the commissioners in making the apportionment, and found certain facts to be considered "if deemed material by the full court." We are of opinion that evidence is not material upon this point. The commissioners act as independent officers in the performance of a duty imposed by the Constitution. No provision is made for a revision of their conduct or a review of their report. It stands unless manifestly contrary to the Consti- tution and therefore a nullity. The report is entitled to all the presumptions which ordinarily are made in favor of the constitu- tionality of a statute. See Commonwealth v. Boston & Northern Street Railway, 212 Mass. 82, 86; Commonwealth v. Moore, 214 Mass. 19, 24. No evidence is received as to the motives or pur- poses of members of the Legislature in enacting a statute. Good intentions of commissioners cannot make valid a report on its face obnoxious to the requirements of the Constitution. The report must be judged by what appears on its face in the light of facts of which the court can take notice. Let the entry be, in substance, that the present division and apportionment of the county of Suffolk into representative dis- tricts, made and filed by the commissioners, is void as not in conformity to the Constitution, and that the commissioners pro- ceed "as soon as may be" to divide the county of Suffolk into representative districts so as to apportion the number of repre- sentatives assigned to that county "equally, as nearly as may be, according to the relative number of legal voters" in the several districts, and otherwise in conformity to the Constitu- tion and to Article 21 of the Amendments to the Constitution, and to make due report thereof as required by said article of amendment. So ordered. 1 De Courcy, J., who with the consent of counsel reported the cases for determination by the full court. 182 MASSACHUSETTS ELECTION CASES — 1916. The cases were argued at the bar in September, 1916, before Rugg, C.J., Loring, Bralet, Pierce and Carroll, JJ., and afterwards was submitted on briefs to all the justices except De Courcy, J. N. Matthews and A. D. Hill (F. G. Goodale with them) for the petitioners. W. A. Buie for the respondents. McGLUE V. COUNTY COMMISSIONERS, ESSEX. SUP. JUD. CT., 1916. 183 SUPREME JUDICIAL COURT. Charles H. McGlue v. County Commissioners of Essex. (Reported in 225 Mass. 59.) Essex, Sept. 26, 1916 — Oct. 5, 1916. Present, Rtjgg, C.J., Loring, Braley, Crosby, Pierce and Carroll, JJ. Constitutional haw. — A report of the Essex County commissioners, made under Article 21 of the Amendments to the Constitution, of the division of that county into representative districts and the apportionment among those districts of the representatives allotted to them by St. 1916, c. 270, sec. 24, can be called in ques- tion in the courts only by the Attorney-General representing the public, or by one who shows that his constitutional rights have been impaired. Apportionment of Representatives. — Accordingly a voter in a legislative district of that county against which no unjust discrimination has been made cannot main- tain a petition for a writ of mandamus to set aside such a report of the county commissioners on account of alleged discrimination against other districts. Upon a petition by a voter of legislative District No. 14 of Essex County against the county commissioners of that county for a writ of mandamus to set aside their report apportioning the legislative representation in that county, it appeared that District No. 14, as defined by the commissioners, comprised Wards 3 and 4 of Lynn and the town of Nahant, and that three representatives were apportioned to the district, giving one representative for each 3,414 voters, which was only 174 voters more than the unit of representation for the whole county, and that the county contained twenty-seven towns, which could not be divided, and seven cities composed of forty-six wards, which could not be divided, and it was held, that the petition must be dismissed; because the excess of 174 voters above the representative unit did not show that the petitioner's constitutional rights had been violated. Rugg, C.J. This is a petition by a voter in Essex County against the county commissioners of that county for a writ of mandamus to set aside the report of the division of Essex County into representative districts and the apportionment among those districts of the thirty-one representatives allotted to that county by St. 1916, c. 270, sec. 24, made by the county commissioners under Article 21 of the Amendments to the Constitution. 1 The ground alleged in the petition is that by the report the constitutional right of the petitioner "to vote for as many representatives, as nearly as may be, as the voters in the other districts of" the county has been violated. The petitioner attacks numerous districts of the division and the apportionment of representatives thereto. The right of the petitioner to invoke the aid of the court to set aside this report of division and apportionment is challenged 1 The case was heard by De Courcy, J., who at the request of the parties reported it for deter- mination by the full court. 184 MASSACHUSETTS ELECTION CASES — 1916. by the commissioners. It is a general principle that no one can question the constitutionality of a public act except one whose rights are impaired thereby. It is elementary that courts have no power to inquire into the validity of public laws by a pro- ceeding brought directly for that purpose. It is only when some person invokes the aid of the judiciary in resisting the operation of such laws to the harm of his liberty, his rights or his property, that the objection of unconstitutionality can be raised. Only those who have a right affected can question the validity of an act. Strangers have no standing in the courts upon such matters. This is manifestly a sound principle. It is a part of the very fabric of our law. It was declared early by this court. It has been adhered to consistently. It has been adopted generally. It would be unfortunate if volunteers and strangers could institute at will proceedings to attack the constitutionality of public acts. Wellington, Petitioner, 16 Pick. 87, 96; Hingham & Quincy Bridge Corp. v. County of Norfolk, 6 Allen, 353, 357; Pearsons v. Ranlett, 110 Mass. 118, 126; Brewster v. Sherman, 195 Mass. 222, 224; Attorney -General v. Provident Institution for Savings, 201 Mass. 23, 25; Lampams v. Bell, 180 U. S. 276; Red River Valley Bank v. Craig, 181 U. S. 548, 558; Hatch v. Rear don, 204 U. S. 152, 160; Jeffrey Manuf. Co. v. Blagg, 235 U. S. 571, 576; Louisville & Nashville Railroad v. Finn, 235 U. S. 601, 610. See cases collected in 6 R. C. L. Constitutional Law, sees. 87 et seq., and in 8 Cyc. 787. The county commissioners in making a division and appor- tionment are officers created by the Constitution. They perform duties imposed by the Constitution. Their report regulates in vitally important particulars the election of the representatives of the people to the more numerous branch of the Legislature for a period of ten years. Every reasonable presumption is made in favor of such a report. It stands unless unmistakably and palpably contrary to the requirements of the Constitution. It manifestly is a public act touching a fundamental aspect of the Constitution. To question its validity raises a constitutional question. Any one who assails such a report in a judicial pro- ceeding must show that his rights have been thereby infringed before he can be heard. The petitioner's constitutional right is that the division and apportionment shall be so made that his vote shall be accorded the weight to which it is entitled on the basis of an apportion- ment of representatives in proportion as nearly as may be to the number of legal voters in the county. If his vote is given McGLUE V. COUNTY COMMISSIONERS, ESSEX. SUP. JUD. CT., 1916. 185 its due weight on the footing of an equal division, his right to vote has not been reduced or impaired. Then no discrimination has been practiced against him. In such a case no division and apportionment could be made under the Constitution which would leave him, as to voting, in any substantially different position, or give to his vote any greater power or any less power in the election of representatives. If his right to become a candidate for public office is to be considered, the result is the same. The number of voters requisite for his nomination and election would be the correct number upon the principle of equality. A division thus made would deal with him justly on the principle of equality secured by the Constitution, even though there might be defects as to other districts. No right of his would be in- fringed. He would have no right to complain of other dis- crimination or inequalities in the report, because they would not harm him; and their correction would not alter the weight of his vote when cast for other candidates, or the number of the votes of his fellows necessary to nominate or elect him if he should become a candidate. A violation by the commissioners of their constitutional duty in any material respect may be called in question in the courts at the instance of the Attorney- General as representing the public. It can be so questioned, also, in an action by any one who shows that his constitutional rights have been impaired. But it can be so questioned by no one else. No matter how great may be the discrimination or disparity worked by the division and apportionment in other parts of the county, the petitioner has no right to attack the report in the courts unless his constitutional rights are violated. Manifestly a legal voter in a representative district containing exactly the number of legal voters, to which one representative ought to be and has been assigned in order that the apportion- ment be precisely equal throughout the county, would not be harmed or affected in his constitutional voting power for mem- bers of the House of Representatives by inequality and dis- parities elsewhere. There would be secured to him the exact voting right to which he was entitled under the Constitution. His vote would have the accurate weight to which it was en- titled, because he would be in a district to which exact justice had been done in the apportionment. A voter in a district where the ratio between voters and representative was lower than the representative unit for the county, that is, where a smaller number of voters than the unit has been given a repre- sentative, has a standing to question in court the constitu- 186 MASSACHUSETTS ELECTION CASES — 1916. tionality of a division and apportionment, because he has suffered injury in his constitutional right. Such voter lives in a district against which discrimination is made. These principles were not discussed in either Attorney-General v. Apportionment Commissioners, 224 Mass. 598, or Donovan v. Apportionment Commissioners, ante, 55, because the Attorney- General appeared as representing the public interest in the first case, and because in both cases each of the individual petitioners for mandamus was a voter in a district against which a manifest discrimination had been made, so that plainly each had suffered a direct injury in his voting power as secured by the Constitu- tion. The rights of the petitioner must be settled in accordance with these principles. The petitioner is a legal voter in Ward 4 of the city of Lynn, which is included within the fourteenth district established by the report. He has a standing to attack the re- port of the commissioners by showing that discrimination has been made against that district, or that for any reason his right as a voter is injuriously affected. He has no standing to ask that the report be set aside because voters in other districts have been injured in their constitutional rights. Therefore we cannot con- sider the apportionment as to other districts, nor decide whether as to some of them a different result might be reached, because such matters are not before us. District No. 14 comprises Wards 3 and 4 of the city of Lynn, and the town of Nahant. It contains 10,243 legal voters. To it are apportioned three representatives. The ratio is one repre- sentative to each 3,414 legal voters. Thirty-one representatives were apportioned to Essex County, which contained 100,445 legal voters. By dividing the number of legal voters in the county by the number of representatives the representative unit or ratio of representation to legal voters is found to be 3,240 for the county. A comparison between 3,414, the ratio of legal voters to representative in District No. 14, and 3,240, the ratio for the county, shows a disparity against District No. 14 of 174. Essex County contains twenty-seven towns and seven cities, the latter being divided into forty-six wards. There are thus seventy-three territorial units, which cannot be subdivided and which must be used in making the division and apportionment. The largest number of legal voters in any of the towns and wards, as shown by the census, was 5,077 in Ward 3 of Lynn, and the smallest, 190 in the town of Boxford. The fractions of the representative unit or ratio for the county, shown by the McGLUE V. COUNTY COMMISSIONERS, ESSEX. SUP. JUD. CT., 1916. 187 number of legal voters in the several towns and wards, are in many instances large, but range to others comparatively small. The county commissioners were required under the Constitu- tion to divide the county into representative districts of con- tiguous territory without dividing a town or a ward of a city, and not allotting more than three representatives to any one district, in such way as to apportion the thirty-one representa- tives "equally, as nearly as may be, according to the relative number of legal voters in the several districts." These constitu- tional regulations are inflexible and inviolable. They must be complied with. But they are not minute as to particulars. They do not govern details of conduct. The task confronting the commissioners involved some com- plexity. The grouping of so many towns and wards into dis- tricts of contiguous territory in such way that each shall approxi- mate as nearly as possible to 3,240 voters for each of thirty-one representatives was by no means simple. Within the broad lines established by the Constitution there is room for diversities of opinion as to the proper arrangement of towns and wards into districts with one, two or three representatives, in order to reach as nearly as is reasonably practicable the unit or ratio of repre- sentation. After conscientious effort there may be instances of considerable excess or deficiency in some districts as compared with the unit. Exact equality would be impossible. An excess of 174 above the representative unit under these circumstances does not show that the petitioner's rights under the Constitution have been violated. Possibly other combina- tions of towns and wards might have been made, which would have approached closer to exact equality; but this disparity is comparatively insignificant. We do not understand the petitioner to contend that the re- port is invalid as to his own district. At the argument he dis- claimed any personal interest. But however that may be, it seems too plain for serious discussion that there is no discrimina- tion where the disparity is so small under the conditions here disclosed. This is not an instance where fair-minded men can entertain no rational doubt that there is a grave, unnecessary and unreason- able inequality of representation by discriminating against Dis- trict No. 14. It is not a wide and bold departure from the constitutional requirement. Attorney-General v. Apportionment Commissioners, 224 Mass. 598; Donovan v. Apportionment Com- missioners, ante, 55; In re Baird, 142 N. Y. 523; State v. 188 MASSACHUSETTS ELECTION CASES — 1916. Campbell, 48 Ohio St. 435; People v. Carlock, 198 111. 150; State v. Weatherill, 125 Minn. 336, 342. The differences between the case at bar and the two cases against the Suffolk County apportionment commissioners cited above are too plain to require statement. Petition dismissed. The case was argued at the bar in September, 1916, before Rugg, C.J., Loring, Braley, Pierce and Carroll, JJ., and afterwards was submitted on briefs to all the justices except De Courcy, J. C. H. McOlue pro se. S. Parsons (C. D. C. Moore with him) for the respondents. BROPHY V. APPORTIONMENT COM'RS. SUP. JUD. CT., 1916. 189 SUPREME JUDICIAL COURT. Patrick J. Brophy and Another v. Suffolk County Apportionment Commissioners. • John P. Mahoney v. Same. Tilton S. Bell v. Same. James Buchanan, Jr. v. Same. Daniel J. Kiley and Others v. Same. H. Raymond Carter v. Same. (Reported in 225 Mass. 124.) Suffolk, Oct. 18, 1916 — Oct. 26, 1916. Present, Rttgg, C.J., Loring, Braley, Pierce and Carroll, JJ. Apportionment of Representatives. — Suffolk County comprises the city of Bos- ton, divided into twenty-six wards, the cities of Chelsea and Revere, each divided into five wards, and the town of Revere. The unit of representation for the county is 3,258 voters. The number of voters in the smallest ward in Boston exceeds this unit by almost 700. Under Article 21 of the Amendments to the Constitution each representative district must consist of contiguous territory, "no town or ward of a city shall be divided therefor" and no district "shall be entitled to elect more than three representatives." In the division into districts and the apportion- ment of representation made by the third report of the Suffolk County appor- tionment commissioners elected under St. 1913, c. 835, sec. 390, the most serious inequality shown on the face of the report was between a district of 4,854 voters, which was given two representatives, being one for each 2,427 voters, or 831 less than the unit of representation, and a district of 4,282 voters, which was given only one representative, making an excess of 1,024 voters above the unit. To the cities of Chelsea and Revere three representatives were assigned, and the aggregate number of legal voters in the two cities lacked only 929 of being four times the unit of rep- resentation. Two other districts, each with three representatives, contained, respectively, 11,510 and 11,262 voters, or 3,836 and 3,754 voters for each repre- sentative. It was held, that, while the division and apportionment made by the report were not ideal, the question was not whether in the opinion of this court there could have been a closer approximation to equality, because the work was to be done by the commissioners, whose duty it was to exercise their sound judg- ment and practical wisdom in selecting the best among the various possible methods for forming the districts, and that the inequalities of voting power between the different districts, as created by the division and apportionment made by the report, were not so great, and the means of avoiding them were not so clear, as to compel this court to decide that there was a grave and unnecessary inequality be- between the different districts in violation of the requirements of the Constitution. Constitutional Law. — Inequalities in the apportionment are not enough to make void an apportionment. Supreme Judicial Court. — The function of the court is not to review or revise the exercise of official judgment of the apportionment commissioners within its legitimate limits, but only to declare void a division and apportionment so vicious in its nature as to transcend the constitutional power of the commissioners. 190 MASSACHUSETTS ELECTION CASES — 1916. Rugg, C.J. The third report of the apportionment commis- sioners elected in accordance with St. 1913, c. 835, sec. 390, at- tempting to divide Suffolk County into representative districts, and to apportion among them the representatives assigned to that county, is attacked by these proceedings 1 as contrary to Article 21 of the Amendments to the Constitution. The general principles by which such an apportionment must be made in order to conform to that amendment to the Constitu- tion have been stated at length in the two recent decisions in which it has been necessary to declare void the two earlier re- ports of the commissioners. Attorney-General v. Apportionment Commissioners, 224 Mass. 598; Donovan v. Apportionment Com- missioners, ante, 55. See also McGlue v. County Commissioners, ante, 59. These principles need not be repeated. It is enough to say that the mandate of the Constitution is that the division into representative districts must be made so as to apportion the representatives assigned to Suffolk County "equally, as nearly as may be, according to the relative number of legal voters in the several districts." Equal representation in the Legislature in proportion to the number of legal voters is fun- damental in a true representative government. The great pur- pose of the Twenty-First Amendment to the Constitution is to establish and to preserve in every apportionment equality among all legal voters in their voting power in the election of members of the House of Representatives, so far as this is reasonably practicable in view of the other constitutional limitations as to the formation of representative districts, namely, contiguity of territory, indivisibility of towns and wards of cities, and the assignment of not more than three representatives to one dis- trict. The present report must be examined to ascertain whether on its face there is a plain evasion of this constitutional require- ment in the light of all the attendant conditions. Suffolk County comprises the cities of Boston, Chelsea and Revere and the town of Winthrop. Boston is divided into twenty-six wards, the number of legal voters in which varies from 3,913 in the smallest to 10,714 in the largest. Each of the other two cities is divided into five wards, with legal voters ranging from 500 to 2,079. Winthrop has 3,445 voters. The unit of representation or ratio of voters to one representative for the county is 3,258. The problem of dividing Suffolk County 1 Six petitions for writs of mandamus brought by legal voters residing in five of the legislative districts of that county. The cases were heard by De Courcy, J., who found the facts to be as set forth in the petitions, and at the request of all the parties reported the cases for determination by the full court. BROPHY V. APPORTIONMENT COM'RS. SUP. JUD. CT., 1916. 191 into districts and apportioning among them the fifty-four rep- resentatives assigned to it in some respects is peculiarly simple when approached from the standpoint of the requirements of the Constitution. But there are inherent difficulties in reaching equality of representation. The wards of Boston are large in number of legal voters, the smallest exceeding by almost 700 the representative unit. These wards cannot be subdivided. The districts must be composed of contiguous wards and towns, and no more than three representatives can be assigned to one district. The present report divides the county into twenty-seven dis- tricts. In ten of these, to which are allotted nineteen repre- sentatives, the variation from the representative unit is less than 300. In five more districts, to which are assigned thirteen representatives, the variation is more than 300 and less than 400. There are eight other districts, to which are assigned seventeen representatives, where the variation is between 400 and 700. In the remaining four districts, with five representatives, the variations are 790, 831, 868 and 1,024. Some of these inequal- ities are not insignificant. Such disproportion ought to be avoided if reasonably practicable. But inequalities alone are not enough to make void an apportionment. The inequalities must be unnecessary and incompatible with reasonable effort to con- form to the requirements of the Constitution. The most serious inequality shown on the face of the present report is between District No. 3, conterminous with Ward 3 of Boston, which, with 4,854 voters, is given two representatives, being one for 2,427 voters, or 831 less than the unit of representa- tion of 3,258; and District No. 25, conterminous with Ward 25 of Boston, with 4,282 voters, to which one representative is assigned, being an excess of 1,024 above the unit. This in- equality could have been avoided only by combinations of these two wards with others into larger districts, and apportioning to them different numbers of representatives. The single practi- cable combination of Ward 3 is with Ward 4. The latter ward, having 5,387 voters, is by the report made District No. 4, to which are assigned two representatives, or one representative for 2,693 voters, or 565 less than the unit of representation. Some of the excess representation given to Districts Nos. 3 and 4, which are contiguous, might be eliminated by combining them into a single district with three representatives. But the dis- crimination against District No. 25 would, by combination with District No. 26, which is Ward 26 of Boston, the only practi- 192 MASSACHUSETTS ELECTION CASES — 1916. cable combination, be changed into almost as great a discrimin- ation in favor of the new district. District No. 26, with 3,913 voters and one representative, has 655 more than the unit of representation. The discrimination against the two districts in the aggregate is 1,679. If Wards 25 and 26 were made one dis- trict with three representatives, there would be 8,195 voters, or a discrimination in favor of the district as a whole of 1,579. Complaint is made, also, of the apportionment of three rep- resentatives to the cities of Chelsea and Revere, in place of four representatives assigned to them under the earlier reports of these commissioners. The aggregate number of legal voters in these two cities lacks 929 of being four times the unit of repre- sentation. Nevertheless, there is strong argument in favor of a division of these two cities so as to assign to them four repre- sentatives in all. But the ward lines and legal voters in the several wards in these cities are such as to make impossible a division into four separate districts with one representative each, without greater appearance of inequality in some respects than is disclosed in the present report. There are obvious objections which may be urged against combinations of wards into double or triple districts. The avoidance of them has something in its favor. Criticism is made of the apportionment as to Districts Nos. 19 and 22. These districts contain, respectively, 11,510 and 11,262 voters, or 3,836 and 3,754 voters for each representative. While these disparities are not inconsiderable, they are not so large and the means for correcting them are not so obvious as to leave no doubt that there has been a violation of the Constitution, in view of the number of legal voters in the territorial units which must be used without division in forming the districts and making the apportionment. The present report as an entirety avoids in large part the manifest discriminations disclosed in the earlier reports. Some of the disparities of the present report, stated either in absolute figures or in percentages, are relatively large. W T ell-reasoned and sound decisions are to be found holding, upon the facts there pre- sented, that disparities measured in terms of percentages as great as some of those here disclosed were enough to render such an apportionment a nullity. See Brooks v. State, 162 Ind. 568; Sherrill v. O'Brien, 188 N. Y. 185. But in these instances the ratio of voters or inhabitants to representatives was larger and the territorial units usable without division were propor- tionately smaller than in the case at bar. BROPHY V. APPORTIONMENT COM'RS. SUP. JUD. CT., 1916. 193 The division and apportionment of the present report are not ideal. Doubtless a closer approximation to equality might have been made. But the Constitution has placed the duty of making the division and apportionment upon the commissioners and not upon the court. There is room for some diversity of honest opinion in selecting among the various possible methods the best one for forming the districts. Sagacity is demanded in reaching a right determination. The division and apportion- ment is not a mere example in arithmetic. It involves the ex- ercise of sound judgment and practical wisdom. When the re- port disregards a reasonable application of sound judgment, acting within the positive command for equality of voting power contained in the amendment to the Constitution, then it is a nullity. Every reasonable presumption must be made in favor of the report of the commissioners. The function of the court is not to review or revise the exercise of official judgment within its legitimate limits, but only to declare void a division and ap- portionment so vicious in its nature as to transcend the con- stitutional power of the commissioners. Something must be left to the commissioners, unless in substance the division and apportionment are to be made at last by the court. If this apportionment on its face does not indicate a manifest abuse of power in ignoring the mandate of the Constitution, or an evasion or direct infraction of the principles stated in our earlier decisions, the court cannot interfere to set it aside. In re Baird, 142 N. Y. 523, 529. With some hesitation we are brought to the conclusion that the inequalities of voting power between the several districts, as shown by the present report, are not quite so great and the means for avoiding them not quite so clear as to leave fair-minded men in no reasonable doubt that there is a grave and unnecessary inequality between the different districts, and to make imperative the conclusion that the requirements of the Constitution have been violated. In each case let the entry be Petition dismissed. N. Matthews and F. G. Goodale for the petitioners Kiley, McVey and Campbell. Lee M. Friedman (G. A. Ham with him) for the petitioner Bell. J. J. Leonard for the petitioner Mahoney. C. F. Eldredge for the petitioners Brophy and Ahern, and J. M. Levenson for the petitioners Buchanan and Carter, also were in attendance. W. A. Buie for the respondents. 194 MASSACHUSETTS ELECTION CASES — 1917. SUPREME JUDICIAL COURT. Charles S. Ashley v. Theee Justices of the Superior Court and Intervenors. (Reported in 228 Mass. 63.) Bristol, June 18, 1917 — July 30, 1917. Present, Rugg, C.J., Braley, DeCourcy, Pierce and Carroll, JJ. Corrupt Practices. Pleading. — Under St. 1914, c. 783, sec. 10, an allegation, in a petition charging the respondent with having violated provisions of the cor- rupt practices act in connection with his election as the mayor of a certain city, that the petitioners are "inhabitants, taxpayers, and qualified voters in the city" in question, is a sufficient averment that the petitioners had a right to vote for mayor at the election in question, which was less than two months before the filing of the petition. And, if such allegation were not sufficient, it could be amended, so that the validity of the proceeding would not be impaired. Election Petitions. — In the provision of St. 1914, c. 783, sec. 10 (c), that "Elec- tion petitions . . . shall be heard and determined by three justices of the superior court who shall each year, immediately following the annual state election, be assigned by the chief justice of said court for the hearing and determination of all matters arising under election petitions during the ensuing year," the word "shall" has no compulsory significance in relation to fixing the time when the assignment oi the three judges shall be made, and such an assignment made by the chief justice of the Superior Court nearly three months after the last annual State election on the day following the granting by a judge of the Superior Court of an order to the effect that there is reasonable cause to believe that a corrupt practice has been committed by the respondent named in an election petition under the statute is a valid assignment of the three judges who are to hear and determine all matters arising under election petitions during the year, including the petition already filed. Constitutional Law. — By an assignment by the chief justice of the Superior Court under authority of the statute named above of three judges of that court to hear election cases during the year no new tribunal is created, and the statute does not violate chapter 2, section I, Article IX of the Constitution, which pro- vides that "All judicial officers . . . shall be nominated and appointed by the governor, by and with the advice and consent of the council." Article 15 of the Declaration of Rights, which provides that "In all contro- versies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury," does not apply to an election petition under the statute named above; because the right to hold an office to which one has been elected is not "property" within the meaning of the word as used in the Declara^- tion of Rights, and a proceeding upon an election petition is not a "suit between two or more persons" in the sense in which those words there are used. Quo Warranto. — The hearing of an election petition under the corrupt prac- tices act is a civil proceeding in the nature of a quo warranto, and is not a criminal prosecution. Constitutional Law. — The provisions of the corrupt practices act contained in St. 1913, c. 835, sec. 497, as amended by St. 1914, c. 783, sec. 12, that "Whoever is found by final judgment upon an election petition ... to have committed a ASHLEY V. JUSTICES SUPERIOR COURT. SUP. JUD. CT., 1917. 195 corrupt practice, and shall, in accordance with such finding forfeit the office to which he has been elected, or whoever is convicted in a criminal proceeding of violating any provision of law relating to corrupt practices in elections shall be disqualified as a voter for a period of three years following the date of his convic- tion, and shall be deemed ineligible to hold public office for the said period," con- sidered in connection with the Fortieth Amendment to the Constitution, which added to the classes of persons from whom the right to vote is withheld, who there- tofore were "paupers and persons under guardianship," "persons temporarily or permanently disqualified by law because of corrupt practices in, respect to elec- tions," do not give the respondent in an election petition a constitutional right to a trial by jury thereon. The provisions of the corrupt practices act above described impose no un- constitutional limitations upon the right to vote or the right to hold office. The "full power and authority" given to the General Court by chapter 1, sec- tion I, Article III of the Constitution "to erect and constitute judicatories and courts of record, or other courts," includes by necessary implication the power to fix the territorial limits within which such courts shall exercise jurisdiction and the places at which they shall be held. The provision of the corrupt practices act, that election petitions shall be entered in the Superior Court in Suffolk County, is within this power, and the respondent's right under Article 11 of the Declaration of Rights "to obtain right and justice freely" is not impaired thereby. There is nothing in the corrupt practices act in conflict with the provision of Article 9 of the Declaration of Rights that "All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments." Corrupt Practices. — There is nothing in the corrupt practices act that deprives the respondent in an election petition of the equal protection of the laws. Constitutional Law. — The provision of the corrupt practices act contained in St. 1913, c. 835, sec. 371, as amended by St. 1914, c. 783, sec. 11, excepting from its operation the elections of town officers in towns of less than 10,000 inhab- itants, does not impair the constitutional validity of the act. Supreme Judicial Court. — There is nothing in the corrupt practices act in derogation of the constitutional powers of the Supreme Judicial Court. Constitutional Law. — There is nothing in the corrupt practices act in conflict with any provision of the Constitution of the United States. The provision in regard to trial by jury in the Seventh Amendment to the Con- stitution of the United States relates only to the courts of the United States. Trial by jury is not essential to the due process of law secured by the Four- teenth Amendment to the Constitution of the United States. Neither the right to hold an elective public office nor the right to vote is a prop- erty right within the meaning of the Fourteenth Amendment to the Constitution of the United States. The portion of the corrupt practices act contained in St. 1914, c. 783, sec. 10. which in Dinan v. Swig, 223 Mass. 516, was held to be unconstitutional and void as in violation of the provisions of the Constitution, which make each branch of the General Court the final judge of the returns, elections and qualifications of its own members, is distinct and separate from the rest of the act and does not affect the validity of the other parts. Writ of Prohibition. — A writ of prohibition will not be issued to correct errors or irregularities of a tribunal that is acting within its jurisdiction, and can be invoked only to prevent such tribunal from exercising a jurisdiction that it does not possess. Pleading. — The respondent named in an election petition brought under St. 1914, c. 783, sec. 10, charging him with having violated the provisions of the cor- rupt practices act in connection with his election as the mayor of a city, appeared specially and pleaded specially that he could not be held to answer the petition 196 MASSACHUSETTS ELECTION CASES — 1917. because the subpoena addressed to him had been made returnable in fifteen days instead of fourteen days after the filing of the petition. A few days later, without waiting for the Superior Court to pass upon his plea, he brought a petition for a writ of prohibition against the three judges of the Superior Court assigned to hear election petitions. Held, that the matter set up in the special plea in regard to the return day of the subpoena was within the jurisdiction of the Superior Court, and was not open to the petitioner upon his petition for a writ of prohibition. Petition, filed on Feb. 16, 1917, and allowed to be filed in its amended form on March 20, 1917, by Charles S. Ashley, who was elected mayor of New Bedford on Dec 5, 1916, against three justices of the Superior Court, for a writ of prohibition prohibiting the respondents from proceeding to hear and deter- mine an election petition of Edward R. Hathaway and four others, charging the present petitioner with having violated the corrupt practices act and seeking to have his election as mayor of New Bedford declared void, alleging "that on January 25 last Edward R. Hathaway and four others of said New Bedford made written application to a justice of the Superior Court sitting in Suffolk County for leave to file an election petition and obtained an order thereon giving such leave, and thereafter on Jan. 26, 1917, filed in the Superior Court for the county of Suffolk an election petition asking to have the aforesaid election of this petitioner as mayor of New Bedford declared void; that neither the said application, nor the said order, nor the said petition, alleged that the said Hathaway and four others, or any of them, had the right to vote for this petitioner, or had the right to vote at the election in which this petitioner was chosen mayor, and no evidence that they or any of them had such right was introduced at the hearing on said application; that the subpoena issued on said election petition was not re- turnable fourteen days after the date of the filing of the petition as required by law; that the said writ of subpoena did not bear teste of the first justice of the court to which it was returnable; that at the time said election petition was filed no court was legally constituted for the trial of said petition; that at the time said petition w r as filed the respondents had not been and were not legally assigned for the hearing and determination of election petitions, and had not then been and are not now legally assigned for the hearing and determination of the afore- said election petition; that the respondents, claiming to be legally assigned for the hearing and determination of election petitions, are intending and proceeding to hear and determine the said election petition brought against this petitioner; that the ASHLEY V. JUSTICES SUPERIOR COURT. SUP. JUD. CT., 1917. 197 statute under which the respondents are acting, and the statutes creating, defining, penalizing and punishing corrupt practices at elections are unconstitutional and violate the Constitution of Massachusetts; that the statute under which the respondents are acting and the other statutes aforesaid are unconstitutional and in violation of section 1 of Article 14 of the Amendments to the Constitution of the United States, in that they abridge the privileges and immunities of citizens of the United States, in that they deprive persons of life, liberty and property without due process of law, and in that they deny persons within their jurisdiction equal protection of the laws; and that the re- spondents have no jurisdiction to hear and determine said election petition." The respondents filed an answer. By orders of the court Edward R. Hathaway and the Attorney-General were per- mitted to intervene as parties respondent. The special appearance of the present petitioner in the Su- perior Court for the purpose of moving to dismiss the election petition against him, which is mentioned in the opinion, was filed on Feb. 10, 1917, and was as follows: "And now, without waiving any rights, and without submitting himself to the jurisdiction of the court, the respondent, appearing specially for the sole purpose of objecting to the jurisdiction, says that the subpoena in this case was not made returnable fourteen days after the date on which the petition was filed, and that no proper subpoena has been duly served upon the respondent. Wherefore, he prays that the petition be dismissed." The case came on to be heard before Braley, J., upon the amended petition, the answer to the original petition and the answer to the amended petition. It was admitted that all the allegations of fact in the amended petition and the answers were true, and the single justice found them to be true. The justice reported the case for determination by the full court, with the stipulation that the petition was not to be denied on the ground of discretion. The case was argued at a special sitting of this court on June 18, 1917. J. W. Cummings and C. R. Cummings for the petitioner. H. E. Woodard for Edward R. Hathaway. C. W. Mulcahy, Assistant Attorney-General, for the Attorney- General, filed a brief. 198 MASSACHUSETTS ELECTION CASES — 1917. Rugg, C.J. This is a petition for a writ of prohibition. The petitioner is the respondent in an election petition filed under the corrupt practices act, St. 1913, c. 835, as amended by St. 1914, c. 783. That election petition charged the respondent therein, the present petitioner, who hereafter will be called the peti- tioner, with having violated provisions of the corrupt practices act in connection with his election in December, 1916, as mayor of New Bedford. The respondents are three judges of the Superior Court who have been assigned to hear such election petitions. The grounds alleged for the issuance of the writ of prohibition in the petition at bar, succinctly stated, are: (1) that the election petition is fatally defective in jurisdictional allegations not susceptible of being cured by amendment; (2) that the respondents have no jurisdiction to hear the election petition because not legally assigned therefor in accordance with the statute; (3) that the statute under which the election petition is brought is unconstitutional in several respects; (4) that no legal subpoena issued to summon the respondent into court, in that, while the statute required that the subpoena "be returnable fourteen days after the date on which the petition is filed," it was in fact made returnable fifteen days thereafter. In their answer the respondents admit that the petitioner was declared elected and was inaugurated mayor of New Bedford, and aver that they were assigned in accordance with the statutes to hear election petitions; that they were at the time of the filing of the present petition intending and proceeding to hear the election petition brought against the present petitioner; that the papers on file show that the subpoena on the election petition was returnable fifteen days after the filing of the peti- tion; that the petitioner as respondent therein appeared specially and filed a motion to dismiss the election petition on the ground that the subpoena was not issued according to the statute, and he had not been rightly summoned; and that no action has been taken by them upon this motion to dismiss, only seven days having elapsed between its filing and the bringing of the present petition, whereupon they immediately directed all pro- ceedings in the election petition case to be suspended until the further order of the Supreme Judicial Court on the present petition. The first of the petitioners in the election petition and the Attorney-General have been allowed to intervene. The case was reserved upon the petition and answer for the determination of the full court. ASHLEY V. JUSTICES SUPERIOR COURT. SUP. JUD. CT., 1917. 199 These several grounds urged in support of the issuance of prohibition will be examined in the order stated above. 1. The first is the fatally defective nature of the election petition. That petition alleges that the petitioners therein named are "inhabitants, taxpayers and qualified voters in the city of New Bedford." This is a sufficient averment that the petitioners had a right to vote for mayor at the election in question in a proceeding of this sort, where the petition, by St. 1914, c. 783, sec. 10 (b), must be filed within two months after the date of the election to which it relates, in view of other requirements of law as to registration of voters and the well-known customs of registrars. But if the allegations were not sufficient, they might be corrected by amendment. See Tucker v. Fish, 154 Mass. 574, 578; Dartmouth v. County Commissioners, 153 Mass. 12; Crafts v. Sihes, 4 Gray, 194. The decisions relied on by the petitioner need not be reviewed. They are by courts of other jurisdictions, where doubtless the policy of the law is more insistent upon niceties of pleading than it is in this Commonwealth. 2. The second ground urged by the petitioner is that the respondents have not been legally assigned as the three judges to hear election petitions in accordance with the statute, and hence are without jurisdiction in the premises. The words of St. 1914, c. 783, sec. 10 (c) are that "Election petitions . . . shall be heard and determined by three justices of the superior court who shall each year immediately following the annual state election, be assigned by the chief justice of said court for the hearing and determination of all matters arising under election petitions during the ensuing year." The annual State election in 1916 was held on November 7. The three judges were not assigned by the chief justice of the Superior Court until Jan. 27, 1917, which was the day following the granting of the order by the Superior Court judge to the effect that there was reasonable cause to believe that a corrupt practice had been committed by the petitioner. It does not appear that there had been any occasion for the assignment of the three judges earlier than this date, or that there had been any suggestion upon the records of the court that any corrupt practice had been com- mitted in the Commonwealth. The word "shall" as used in this statute cannot be thought to have compulsory signification in the sense that the rights of parties and the public fail utterly of possibility of enforcement if there has been a delay in making the assignment of the judges. Important public and private 200 MASSACHUSETTS ELECTION CASES — 1917. interests ordinarily are not intended to be made dependent wholly upon the performance of a duty by a public officer at a given moment of time. When the word "shall" is used for fixing the time for the performance of official duty, where private rights are not directly concerned, it commonly is construed to be directory rather than mandatory. The act imposes an im- perative obligation upon the chief justice to make the assign- ment. It indicates the time when the assignment ought to be made. But the jurisdiction of the court over the parties is not impaired if the assignment of the three judges is made in season to perform the duties established by the statute. Cheney v. Coughlin, 201 Mass. 204, 211, 212, where earlier cases of this and other courts are collected and reviewed. Rutter v. White, 204 Mass. 59; Pevey v. Aylward, 205 Mass. 102; Rea v. Alder- men of Everett, 217 Mass. 427, and cases cited at 430. It follows that the respondents are not without jurisdiction on this ground to consider the election petition. 3. It is argued that the corrupt practices act is unconstitu- tional on several grounds. (a) The provision that three judges of the Superior Court "for the hearing and determination of all matters arising under election petitions during the ensuing year," "shall each year, immediately following the annual state election," "be assigned by the chief justice of said court," does not contravene chapter 2, section I, article IX of the Constitution to the effect that "All judicial officers . . . shall be nominated and appointed by the governor, by and with the advice and consent of the council." The election petitions established by the corrupt practices act are proceedings in the Superior Court. The act provides that all election petitions shall be brought in the Superior Court in the county of Suffolk, that they can be brought only by permission granted by a Superior Court judge after an ex parte preliminary hearing, and that they shall be entered in a separate docket by the clerk of the Superior Court for Suffolk County. They are to be heard and determined by three judges of the Superior Court. From beginning to end the matter is conducted by the judges, recorded upon the records, and the papers are kept in the custody of the clerk, of the Superior Court. No new court is established. No new tribunal is created. A new kind of procedure is created. In some respects the practice is regu- lated in considerable detail, and is made radically different from that heretofore prevailing in more familiar classes of litigation. But the jurisdiction is conferred upon an existing court. ASHLEY V. JUSTICES SUPERIOR COURT. SUP. JUD. CT., 1917. 201 The Legislature may provide that particular causes may be tried before one or more judges of any court. The history of statutory changes respecting the trial of indictments for capital offences, from the original requirement that all such trials must be before this court sitting en banc to the present provision that they be had before a single judge of the Superior Court, is an illustration of the power of the Legislature in this regard. Com- monwealth v. Phelps, 210 Mass. 78. The authority of the Legis- lature to transfer jurisdiction from justices of the peace to the judges of the police court and conferring upon the latter a new name, was confirmed by Wales v. Belcher, 3 Pick. 508. Brien v. Commonwealth, 5 Met. 508. It was held in Dearborn v. Ames, 8 Gray, 1, that jurisdiction over insolvency matters previously vested in elective officers whose election was provided for by the constitution, might be transferred to a regularly constituted court. There are numerous instances where the hearings must be had before two or more judges. Allusion has already been made to trials of capital cases. Jurisdiction was conferred by R. L. c. 201, sec. 2 upon three judges of the Superior Court to hear claims against the Commonwealth in excess of $1,000. Provision is made by R. L. c. 157, sec. 5 for trial of certain civil causes before three judges of the Superior Court. The assignments of the judges to hold the court in all these cases must of necessity be made by the chief justice. It is expressly provided by St. 1912, c. 649, sec. 8, that the three judges of the Municipal Court of the City of Boston to hold the Appellate Division of that court thereby established, shall "be designated from time to time by the chief justice" of that court. It never has been suggested in any of the numerous cases which have been appealed from the Appellate Division of that court that there was any- thing unconstitutional in its organization. The most ancient and familiar illustration of division of work is in the Supreme Judicial Court, where constantly certain justices are sitting as the quorum of the full court, and others are holding court as single justices. It requires no argument to demonstrate that the designation of the justices to sit as the full court is a judicial duty. The circumstance, that under the instant statute the three judges assigned are to hear all the election petitions brought during the year, is immaterial in this connection. It is a well- known practice for the assignments of judges to specific duties to be made for the period of a year. 202 MASSACHUSETTS ELECTION CASES — 1917. It is an appropriate function of the office of chief justice to make such assignments as are required by this statute. It is a detail in the efficient administration of justice by courts com- posed of several judges that the chief justice should arrange a division of work among the different judges in such way as to promote the transaction of the business of the court in the most satisfactory manner. It is the performance of a strictly judicial duty. No new court is established and no new judges are required by the corrupt practices act. An existing court is given jurisdiction of a new kind of litigation, and provision is made for designation in the ordinary way of judges already commissioned, to perform the duties arising from the new kind of jurisdiction. The con- clusion is imperative that the act is not violative of the con- stitutional requirement that all judges shall be appointed by the Governor. It is not necessary to inquire whether the subject of elections is so much in the nature of a political question that the Legis- lature is unlimited in its power to establish tribunals and fix their jurisdiction to deal with election to public office, and may even treat it as an executive or administrative function and not so judicial in character as necessarily to be vested in the courts. See in this connection State v. Lewis, 51 Conn. 113; Williamson v. Lane, 52 Texas, 335; Lynch v. Chase, 55 Kans. 367, 371; State v. Hawkins, 44 Ohio St. 98, 109; Ewing v. Filley, 43 Penn. St. 384, 390. Nor is it necessary to consider whether the principle of Young v. BlaisdcU, 138 Mass. 344, may be applicable. (6) The right of trial by jury as secured by the Constitution is not denied by the act. The Declaration of Rights, by Article 15, holds sacred the right to a trial by jury "In all contro- versies concerning property and in all suits between two or more persons, except in cases in which it has heretofore been other- ways used and practiced." It was decided in Attorney -General v. Sullivan, 163 Mass. 446, 451, 452, that a public office like that of mayor is not "property" as that word is used in the Declaration of Rights. A public office does not possess the attributes of private property. Any office created by the General Court, and not established by name or tenure by the Constitution, "may be regulated, limited, enlarged or terminated by law, as public exigency or policy may require." Taft v. Adams, 3 Gray, 126, 130. A public office is not the private property of the person elected to it. It is a public trust, to be held and administered ASHLEY V. JUSTICES SUPERIOR COURT. SUP. JUD. CT., 1917. 203 entirely and absolutely for the benefit and in the interest of the people. This rule prevails generally. Attorney-General v. Jochim, 99 Mich. 358, 367; People v. Coler, 173 N. Y. 103; Prince v. Skillin, 71 Me. 361, 365; Donahue v. County of Will, 100 111. 94; Taylor v. Carr, 125 Tenn. 235; Mason v. State, 58 Ohio St. 30; Moore v. Strickling, 46 W. Va. 515, 518; State v. Douglas, 26 Wis. 428, 432; Hawkins v. Roberts & Son, 122 Ala. 130; Gray v. McLendon, 134 Ga. 224, 251, 252. There- fore it follows that so far as concerns the question of property, no jury trial need be provided in trials as to the title to a public office. The right to vote also is in its nature political and not property. Kinneen v. W ells, 144 Mass. 497; Cooley Const. Lim. (7th ed.) 901. See cases collected, 1 L. R. A. Ill, note. The election petition provided by the corrupt practices act is not a "suit between two or more persons" in the sense in which those words are used in the Declaration of Rights. The right to contest an election in the manner and to the extent set forth in the instant statute is not either in form or in substance a common-law right. It is not in its essence a controversy between two parties in the sense of ordinary litigation. It is in its nature an inquiry into the purity of the election. A corrupt practice is defined by section 368 of the act as amended. 1 The election petition must be confined to a request for an investigation respecting the matters enumerated in this section of the act. It must be brought by five persons whose only qualification as petitioners is that they were voters qualified by law to vote at the election as to which complaint is made. They have no private interest to subserve. The purity and freedom of elections is fundamental in a Republican form of government. Scarcely anything can be conceived more vital to the public welfare than free and honest elections. An election 1 The provisions referred to are as follows: "A candidate shall be deemed to have committed a corrupt practice who shall, either by himself or by another, violate the provisions of section three hundred and forty-eight relative to the expenditure of money in excess of the amounts therein authorized; who shall make a false return in any statement filed in accordance with sec- tions three hundred and sixty-two and three hundred and sixty-three of this act ; who shall, either by himself or another, pay or give, or directly or indirectly, promise to a voter any gift or reward to influence his vote or to induce him to withhold his vote; who shall, either by himself or another, aid or abet a person, who is not entitled to vote, in voting or attempting a vote at a primary election, or in voting or attempting to vote under a name other than his own, or in casting or attempting to cast more than one ballot; who shall either by himself or another fraudulently and wilfully obstruct and delay a voter; who shall, either by himself or another interfere with, hinder or prevent an election officer from performing his duties, forge an endorsement upon, or alter, destroy or deface a ballot; or who shall, either by himself or another, tamper with or injure or attempt to injure any voting machine or ballot box to be used or being used in an elec- tion, or shall prevent or attempt to prevent the correct operation of such machine or box." 204 MASSACHUSETTS ELECTION CASES — 1917. petition cannot be brought without leave first obtained from a judge who must certify after hearing that he is satisfied that there is reasonable cause not only to believe that a corrupt practice was committed with reference to the particular election, but also that upon the evidence obtainable the corrupt practice may be successfully proved. An election petition once entered in court cannot be discontinued without the oonsent of the Attorney-General. Sec. 366. The judgment entered at the con- clusion of the proceeding, if a corrupt practice is found to have been committed, is not in the nature of a remedy for a private wrong, but a vindication of an outrage upon the public and a purging of public office from a foul stain. The election is to be declared void and the respondent ousted from office and the office declared vacant. Section 369, as amended by St. 1914, c. 783, sec. 10. The whole proceeding, throughout, is public rather than private in character. It is in the nature of a quo warranto proceeding. The public, instead of being represented at the initiatory stages by the Attorney-General, is in effect represented by the five voters acting not wholly upon their own volition, but upon authorization from the court; and after the bringing of the petition the Attorney-General has a limited control over the proceedings. It is no more a suit between persons than is a petition for quo warranto which in Attorney- General v. Sullivan, 163 Mass. 446, 451, was held not to be such suit. In this respect the case at bar is governed by that decision, and the petitioner has suffered no legal wrong in being denied a trial by jury. Kansas v. Ziebold, 123 U. S. 623, 673. See also Carleton v. Rugg, 149 Mass. 550. Since this is not a pursuit of an individual right, but essentially an inquest into a matter of public import, it does not come within the definition of suit given in Worcester Color Co. v. Henry Wood's Sons Co., 209 Mass. 105. (c) The election petition is not criminal in its form. It is expressly provided that such petitions shall be governed by the rules of equity practice and procedure, so far as applicable, in the absence of special rules of court. The act makes distinct provisions in other sections for criminal prosecutions, and the election petition throughout is treated as civil in its nature. Since it is in the nature of a quo warranto, it is a civil proceeding and not a criminal prosecution. That has been decided. At- torney-General v. Sullivan, 163 Mass. 446, 449; Ames v. Kansas, 111 U. S. 449, 460. See also State v. Thompson, 91 Minn. 279, and State v. Moores, 56 Neb. 1. But it is contended that a ASHLEY V. JUSTICES SUPERIOR COURT. SUP. JUD. CT., 1917. 205 punishment criminal and infamous in its nature is imposed by the act, and hence that it is obnoxious to Article 12 of the Declaration of Rights, which guarantees a trial by jury in such cases. It is provided by section 497 of the act, as amended by St. 1914, c. 783, sec. 12, that "Whoever is found by final judg- ment upon an election petition ... to have committed a cor- rupt practice, and shall, in accordance with such finding, forfeit the office to which he has been elected, or whoever is convicted in a criminal proceeding of violating any provision of law relating to corrupt practices in elections, shall be disqualified as a voter for a period of three years following the date of his conviction, and shall be deemed ineligible to hold public office for said period." It is urged that deprivation of the right to vote and to hold public office for a period of three years, as a consequence of the finding of a corrupt practice having been committed by the defendant in an election petition, is a criminal or infamous punishment. This question must not be treated by itself alone, but must be considered in connection with the Fortieth Amend- ment to the Constitution, which became operative in 1912. That Amendment added a new class to those citizens from whom the right of franchise is withheld by Article 3 of the Amendments, namely, "persons temporarily or permanently disqualified by law because of corrupt practices in respect to elections." The effect of this amendment was to confer upon the General Court power to declare by general law disfranchisement as an accom- paniment to the commission of corrupt practices in elections. It did not confine or limit its powers in this respect to the establish- ment of the fact of corrupt practice by criminal rather than by civil proceedings. It conferred by implication the power in broad terms. It gave ample discretion to the Legislature as to the means to be employed for the ascertainment of the fact, by any constitutional means, of a corrupt practice having been committed. It authorized the Legislature to attach disfranchise- ment for corrupt practices in connection with elections upon the same footing as disfranchisement because of being a pauper or under guardianship. Manifestly a trial by jury is not re- quired to determine whether one shall be a pauper or placed under guardianship simply because deprivation of the right to vote follows as a result of that status. See Dowdell, Petitioner, 169 Mass. 387; Sporza v. German Savings Bank, 192 N. Y. 8. Pauperism and guardianship as matter of common knowledge have been generally established by proceedings in which there is 206 MASSACHUSETTS ELECTION CASES — 1917. i no trial by jury. The circumstance that the Fortieth Amend- ment does not automatically attach disqualification from voting to all persons found to have committed corrupt practices, but leaves that matter to be settled from time to time by general law, gives no additional constitutional rights to the individual. He cannot demand on that account as a constitutional right that this matter be settled by a jury when he is not otherwise entitled to it. Therefore it is needless to consider the bearing in this connection of United States v. Waddell, 112 U. S. 76; Ex parte Wilson, 114 Y. S. 417, and People v. Kipleij, 171 111. 44, 72, relied on by the petitioner, or to discuss whether deprivation of the right to vote and to hold office as isolated factors without the imposition of fine or imprisonment constitute infamous punishment. Of course the Legislature cannot by a mere change of name or of form convert that which is in its nature a prosecution for a crime into a civil proceeding and thus deprive parties of their rights to a trial by jury. The Constitution cannot thus be trifled with. Stock-bridge v. Mixer, 215 Mass. 415. But there is nothing to prevent the Legislature from enlarging proceedings and remedies in their nature civil, so as to include new matters of the same general character. Brown's Case, 173 Mass. 498; Young v. Blaisdell, 138 Mass. 344; Renado v. Lummus, 205 Mass. 155, 158. In view of the principles declared in Attorney- General v. Sullivan, 163 Mass. 446, and Ames v. Kansas, 111 U. S. 449, and in other cases before cited, it is unnecessary to examine State v. Markham, 160 Wis. 431; S. C. 162 Wis. 55, and kindred decisions, or to determine whether in the light of differing constitutional provisions they are inconsistent with the conclusion here reached. (d) Nothing contrary to the Constitution is perceived in the further provision that one found to have committed corrupt practices shall be deemed ineligible to hold public office. The privilege of voting is so closely connected with the right to hold office that power to deprive of the former may well include the latter. See Opinion of the Justices, 7 Mass. 523; State v. Van Beek, 87 Iowa, 569; State v. Smith, 14 Wis. 497. Moreover, the power of the Legislature to determine the qualifications re- quired of those elected to fill municipal offices is ample and need not be uniform throughout the Commonwealth. Graham v. Roberts, 200 Mass. 152, 154, 155; Cole v. Tucker, 164 Mass. 486. It follows that the act imposes no unconstitutional limitations upon the right to vote or to hold office. ASHLEY V. JUSTICES SUPERIOR COURT. SUP. JUD. CT., 1917. 207 (e) It is not open to serious question that the acts described in the statute as corrupt practices are well within the scope of those words as used in the Fortieth Amendment. (/) The provision that election petitions shall be entered in the Superior Court in Suffolk County is not violative of any constitutional provision. The General Court is given full power and authority, by chapter 1, section I, Article III of the Con- stitution, "to erect and constitute judicatories and courts of record or other courts." This ample grant includes by necessary implication power to fix the territorial limits within which such courts shall exercise jurisdiction and the places in which they shallbe held. Having created by the instant statute a new kind of civil litigation, there is no basis in the Constitution for limiting the right of the Legislature to say that such causes shall be entered in Suffolk County, where the Superior Court always is in session. The right of the petitioner "to obtain right and justice freely" as guaranteed by Article 11 of the Declaration of Rights is not impaired thereby. The Superior Court being a court of general jurisdiction, there is nothing to prevent the respondents in the exercise of their discretion from hearing election petitions where the public interest requires. (g) It follows from what has been said, without further dis- cussion, that there is nothing in the challenged portions of the act which is in conflict with Article 9 of the Declaration of Rights, to the effect that "All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifi- cations as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments." The whole purpose of the act is to promote and insure the freedom of elections by discouraging the improper influence of elections and the pollution of the ballot through corrupt practices. (h) The contention that the petitioner is denied the equal protection of the laws is untenable. It is elementary that the General Court may make reasonable classifications in selecting the subjects of legislation and determining what shall be included within designated inhibitions. Such classification does not violate the constitutional requirement for equal protection of the laws unless "plainly and grossly oppressive and unequal, or contrary to common right." Oliver v. Washington Mills, 11 Allen, 268, 279. A classification, general in its nature, will not be held to be unequal when there appears to be reasonable ground for it, but only when it seems to be simply arbitrary, based upon no 208 MASSACHUSETTS ELECTION CASES — 1917. sound distinction and not founded upon any natural difference or rational discrimination. See Commonwealth v. Libbey, 216 Mass. 356, 358; Young v. Duncan, 218 Mass. 346, 353; Bogni v. Perotti, 224 Mass. 152, 157; Tax Commissioner v. Putnam, 227 Mass. 522, and cases cited in each of these decisions. It is impossible in the nature of things to remove from office as a consequence of corrupt practices any except those who have been elected. Disfranchisement and ineligibility to hold office attach equally to everybody convicted of the violation of the criminal provisions of the act. The circumstance that no like civil proceeding is provided against defeated candidates for public office does not render the act unequal in a constitutional sense. The successful perpetration of a wrong ordinarily is punished in law by a more severe penalty than a thwarted at- tempt to commit the same wrong. This is true even in prose- cutions for crimes, although the moral turpitude may be as great in one case as in the other. (i) There is no constitutional inequality in the provision that election petitions shall be brought and may be heard in Suffolk County, while prosecutions for criminal violation of the election laws must be in the county where the crime is alleged to have been committed. Misdemeanors may be tried and finally dis- posed of in local courts, while felonies of a certain magnitude can be disposed of finally only at the county seat, even upon plea of guilty. Similar differences as to places of trial are found between the Probate Courts, the Land Court, the Superior Court and the Supreme Judicial Court sitting at nisi prius. (j) The limitation in section 371 of the act as amended by St. 1914, c. 783, sec. 11, excepting from its operations elections of town officers in towns of less than 10,000 inhabitants, does not impair the constitutional validity of the act. The New England town meeting system of elections and government in comparatively small communities is proverbial as one of the finest illustrations of practical democracy. The intimate knowl- edge that each voter in such comparatively small communities is likely to possess touching the honesty and general qualifi- cations of his fellows and of all candidates for election to public office well may have been regarded as the best security against political corruption. The difference in this respect between large and small municipalities furnishes a manifestly reasonable line of demarcation. The precise point at which that line is drawn in the present instance clearly is not irrational. Cole v. Tucker, 164 Mass. 486; Opinion of the Justices, 138 Mass. 601, ASHLEY V. JUSTICES SUPERIOR COURT. SUP. JUD. CT., 1917. 209 603; Cunningham v. Mayor of Cambridge, 222 Mass. 574, 577; Brown's Case, 173 Mass. 498; Hayes v. Missouri, 120 U. S. 68; Mallett v. North Carolina, 181 U. S. 589; Ocampo v. United States, 234 U. S. 91. (k) The act is not in derogation of the constitutional powers of the Supreme Judicial Court. It is not necessary to discuss this subject at large. This court is recognized as the court of highest final decision by section 10 (d) of said chapter 783; It is not necessary to determine the extent or nature of the powers of this court to correct errors of law committed by the judges of the Superior Court if in any case there should be an unreasonable refusal to report a question to this court. This conclusion does not shake in any degree what was said by Chief Justice Shaw in Commomvealth v. Anthes, 5 Gray, 185, 232-236, as to the basis in the Constitution for the Supreme Judicial Court and the scope of its general powers. The strength of that discussion and reasoning stands unimpaired. (I) The act is not in conflict with any provision of the Federal Constitution. The trial by jury secured by the Seventh Amendment to the Federal Constitution relates only to the courts of the United States. Bothwell v. Boston Elevated Railway, 215 Mass. 467, and cases cited at page 471; Walker v. Sauvinet, 92 U. S. 90. (m) Trial by jury is not essential to the due process of law secured by the Fourteenth Amendment to the United States Constitution. Montana Co. v. St. Louis Mining & Milling Co., 152 U. S. 160, 171; Dowdell, Petitioner, 169 Mass. 387. The instant act purports to afford to all defendants in election petitions a full and fair trial before impartial judges according to fixed laws applicable alike to all persons similarly situated. This is a sufficient compliance with the Fourteenth Amendment. Marchant v. Pennsylvania Railroad, 153 U. S. 380. (n) The right to hold an elective public office is not a property right within the meaning of the Fourteenth Amendment of the Federal Constitution. If the petitioner should be deposed from the office of mayor by act of the Legislature or by any judicial proceeding in the courts founded on such act, no property right secured by that amendment would be invaded. That was settled after great deliberation, with ample review of the au- thorities and a full discussion of fundamental principles, in Taylor v. Beckham, 178 U. S. 548, 575, 577, and Attorney -General v. Tillinghast, 203 Mass. 539, 545. (o) It was said by Chief Justice Field, in Stone v. Smith, 159 210 MASSACHUSETTS ELECTION CASES — 1917. Mass. 413, "It is settled that the right to vote is not one of the privileges or immunities of citizens of the United States within the meaning of Article 14 of the Amendments to the Constitution of the United States. United States v. Cruikshank, 92 U. S. 542; Minor v. Happersett, 21 Wall. 162." It follows that the provisions of the present act as to deprivation of the right to vote and to hold office are not in contravention of the United States Constitution. Guinn v. United States, 238 U. S. 347, 362, 363; Myers v. Anderson, 238 U. S. 368. (p) It was held in Dinan v. Swig, 223 Mass. 516, that so much of St. 1914, c. 783, sec. 10, as undertakes to impose upon the courts the duty of inquiry into corrupt practices of members of the General Court was contrary to chapter 1, section III, Article X (and see chapter 1, section II, Article IV) of the Con- stitution which makes each branch of the General Court the final judge of the returns, elections and qualifications of its own members. It is a well-settled principle of constitutional law that one part of a statute may be contrary to the Constitution, while the rest may stand as valid, provided the two parts are distinct and in their nature separable the one from the other, and are not so interwoven and mutually dependent as to require the belief that the Legislature would not have enacted the one without the other. Warren v. Mayor & Aldermen of Charles- town, 2 Gray, 84, 98, 99; Commonwealth v. Petranich, 183 Mass. 217, 220; County of Berkshire v. Cande, 222 Mass. 87, 90, 91; Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371, 380; Berea College v. Kentucky, 211 U. S. 45, 55; International Text Book Co. v. Pigg, 217 U. S. 91, 113. It seems plain that the provisions as to corrupt practices of mem- bers of the General Court are quite distinct and separable from the rest of the act and have no necessary and inherent con- nection with its other parts. The section in question dealt with that matter differently from the way in which the act dealt with other corrupt practices. The Legislature evidently recog- nized that they constituted two different classes of officers under the Constitution and must be treated differently. The failure of the effort to include members of the Legislature has little connection with the rest of the statute, which can stand pre- cisely as enacted in its application to a large number of highly important offices. A similar decision upon this point was made in Diehl v. Totten, 32 No. Dak. 131. It is manifest that the election petition against the petitioner does not raise questions as to the right to free speech and ASHLEY V. JUSTICES SUPERIOR COURT. SUP. JUD. CT., 1917. 211 freedom of the press. Although he has referred to these ques- tions, he has not argued them at length, and doubtless they are not open to him. McGlue v. County Commissioners, 225 Mass. 59, and cases collected at page 60; Rail & River Coal Co. v. Industrial Commission of Ohio, 236 U. S. 338, 349. It is, there- fore, unnecessary to consider them. See Adams v. Lanadon, 18 Idaho, 483; State v. Pierce, 163 Wis. 615; Ex parte Harrison, 212 Mo. 88. 4. It has been assumed in favor of the petitioner in the dis- cussion thus far, but without examining critically the matter of remedy, that prohibition would be open to him. But it is plain that the fourth general point urged by him — namely, that the subpoena having been made returnable fifteen instead of fourteen days after the filing of the petition, he cannot be held to answer the election petition — cannot properly be considered on a petition for a writ of prohibition. The principles which govern the issuance of that extraordinary writ are well settled. It will not be granted if the court or tribunal against which it is sought has jurisdiction of the cause or matter which it pro- poses to adjudicate. Prohibition lies only to restrain a clear excess of jurisdiction about to be committed against one who has not submitted thereto where there is no other adequate remedy. It does not issue to correct or restrict errors or ir- regularities of a tribunal which is acting within its jurisdiction, although proceeding improperly in the exercise of that juris- diction. It can be invoked to prevent a court from exercising a jurisdiction which it does not possess. It will not be granted to remedy the errors of a judicial tribunal acting within its jurisdiction, but lies only to restrain such tribunal from acting outside its jurisdiction. Washburn v. Phillips, 2 Met. 296, 298, 299; Connecticut River Railroad v. County Commissioners, 127 Mass. 50; Hyde Park v. Wiggin, 157 Mass. 94, 99; Tehan v. Justices of the Municipal Court, 191 Mass. 92; Welch v. Fox, 205 Mass. 113; Mayor of Someroille v. Justices of the Police Court, 220 Mass. 393, 396; Ex parte Oklahoma, 220 U. S. 191, 208. It has been held in the application of these principles that, where a tribunal is acting under an unconstitutional statute, it may thus be restrained. Connecticut River Railroad v. County Commissioners, 127 Mass. 50. It already has been pointed out that the election petition here complained of is pending before a legally constituted court, which has jurisdiction over the subject-matter. The petitioner has appeared specially in answer to the election petition, and has pleaded specially the 212 MASSACHUSETTS ELECTION CASES — 1917. matter of which he here complains. But he brought his present petition within a few days after filing that special appearance and plea, without waiting for the Superior Court to pass upon its merits. It appears from the record that immediately upon the filing of the present petition all proceedings upon the elec- tion petition were suspended. The matters set out in the special plea of the petitioner in the election petition are clearly within the jurisdiction of that court. It is provided by the corrupt practices act, section 369, as amended by St. 1914, c. 783, sec. 10 {d), that "Upon an election petition the decision of the three justices of the Superior Court assigned as aforesaid, or of a majority of them, shall be final and conclusive upon all matters in controversy, whether interlocutory or final, and whether in matters of fact or matters of law. But the said justices, or a majority of them, may in their discretion, after a finding of facts, either of their own motion or at the request of either party, report the case to the Supreme Judicial Court for determination by the full court." Without passing upon the scope or signification of these provisions, it is not open to question that jurisdiction of this matter is vested in the Superior Court. There is no suggestion that the petitioner's special plea will not be considered on its merits by the Superior Court and decided according to its view of the law. It is an indubitable result of well-settled principles that this point is not open to the petitioner in this proceeding. Petition dismissed. MANSFIELD V. SECRETARY OF COMM. SUP. JUD. CT., 1917. 213 SUPREME JUDICIAL COURT. Frederick W. Mansfield v. Secretary of the Common- wealth. (Reported in 228 Mass. 262.) Suffolk, Oct. 18, 1917 — Oct. 19, 1917. Present, Rugg, C.J., Braley, DeCourcy, Pierce and Carroll, JJ. Elections. Mandamus. — Upon a petition for a writ of mandamus, which is a proceeding at law, this court has no jurisdiction to change or reverse a decision as to the facts made by the single justice who heard the case unless the finding of fact is not warranted by the evidence. Elections. Official Ballot. — Upon a petition for a writ of mandamus a finding of a single justice, warranted by the evidence presented before him, that the sur- name ot a candidate for Governor always has been spelled "McCall", and never has been spelled "MacCall," that the name of the candidate is "McCall", and not "MacCall", and that under St. 1913, c. 835, sec. 259, "the name of Frederick W. Mansfield should precede that of Samuel W. McCall in the arrangement of names in alphabetical order upon the official ballot of candidates for Governor," is a finding of fact which is not open to revision by this court. Petition, filed on Oct. 16, 1917, for a writ of mandamus addressed to the Secretary of the Commonwealth commanding him, in the preparation of the official ballot for the election of Governor under St. 1913, c. 835, sec. 259, which provides that the names on the official ballot for election to office shall be arranged in alphabetical order according to the surnames, to print the name of the petitioner, Frederick W. Mansfield, before the name of Samuel W. McCall, an opposing candidate for the office of Governor. The answer of the respondent, as filed by the Attorney- General, contained, among other allegations, the averment "that the name 'McCall' is an abbreviation of the name 'MacCall,' and that according to accepted usage and custom pertaining at the time of the adoption of the statute requiring names on official ballots to be arranged in alphabetical order according to surnames, and at the present time names such as ' McCall ' are arranged with names spelled 'MacCall' and similar names, and precede in alphabetical arrangement the name 'Mansfield.'" The case was heard by Crosby, J., who made certain findings of fact, including those that are stated in the opinion and con- cluding as follows: "I further find that the surname of Samuel 214 MASSACHUSETTS ELECTION CASES — 1917. W. McCall has, so far as the evidence shows, always been spelled 'McCall' and never has been spelled 'MacCall,' and that the surname of Frederick W. Mansfield, so far as the evidence shows, has always been spelled 'Mansfield.' I further find that Mr. McCall's name is 'McCall' and not 'MacCall.' Upon these facts, so far as it is a question of fact, I find that the name of Frederick W. Mansfield should precede that of Samuel W. McCall in the arrangement of names in alphabetical order upon the official ballot of candidates for Governor." The single justice reported the case, reserving all questions of law arising upon the record for determination by the full court, such disposition to be made of the case as the full court should direct. F. W. Mansfield pro se. H. W. Barnum, Assistant Attorney-General, for the respondent. Rugg, C.J. This is a petition for a writ of mandamus to compel the Secretary of the Commonwealth to place the name of the petitioner as candidate for Governor before that of Samuel W. McCall upon the official ballot for the impending State election. It is the duty of the respondent to arrange the names of the several candidates for Governor upon the ballot "in alphabetical order according to the surnames." St. 1913, c. 835, Part III, sec. 259. There has been a hearing before a single justice who has made a finding of facts. His conclusion, after a narration of various matters of probative value on the issue, is in these words: "Upon these facts, so far as it is a question of fact, I find that the name of Frederick W. Mansfield should precede that of Samuel W. McCall in the arrangement of names in alphabetical order upon the official ballot of candidates for Governor. I reserve all questions of law arising upon the record for the determination of the full court, such disposition of the case to be made as that court shall direct." A petition for a writ of mandamus is a proceeding at law. This court has no jurisdiction in a proceeding at law to change or reverse a decision as to the facts made by the tribunal charged with the duty of ascertaining the facts. The weight of evidence in such proceeding is not open to revision by this court. Electric Welding Co. Ltd. v. Prince, 200 Mass. 386, 391; Commonwealth v. National Contracting Co. 201 Mass. 248. The rule in equity is different. MANSFIELD V. SECRETARY OF COMM. SUP. JTJD. CT., 1917. 215 The alphabetical precedence of surnames under the circum- stances here disclosed is a question of fact and not of law. The precise point is whether in arranging the names in alphabetical order McCall should be treated as equivalent to the com- bination of letters MacCall, and as if so spelled. How it is spelled in truth, and whether the real name is "MacCall" or McCall," and whether the latter form is an abbreviation of the former are questions of fact. We know of no rule of law by which to settle those questions. The only question of law open on this record is whether the decision of the single justice, to the effect that the surname "Mansfield" precedes the surname "McCall" in alphabetical order, and that the latter is not to be treated as the equivalent of " MacCall," finds any justification in the evidence. That finding cannot be pronounced erroneous as matter of law if there is any evidence of substance to support it. It is only when such finding is unwarranted by the evidence that it can be set aside. Wade v. Smith, 213 Mass. 34; Bailey v. Harden, .193 Mass. 277. The subsidiary facts found by the single justice are in effect that there is a general custom in the United States and England, in arranging and indexing surnames in books and catalogues, to place names beginning with "Mc" before those beginning with "Man;" and that this custom is nearly if not quite universally observed by librarians, and prevails generally in the arrangement of names in directories and in a large number of other publica- tions, including dictionaries, encyclopaedias and digests. The letters "Mc" or Mac" and also "M" as part of a surname are derived from the Gaelic and mean "son of." But he also finds that there are a number of other publica- tions and lists in which names beginning with "Man" precede those beginning with " Mc." These include the Boston telephone and other directories, certain acts and resolves, and the voting list of the town of Winchester, where Mr. McCall resides. He finds, further, that the surname of the candidate has in fact always been spelled "McCall" and has never been spelled " MacCall." There was evidence tending to support all these findings. That hardly can be disputed upon this record. Its weight is not for us to consider. Although it reasonably might have been inferred that the name "McCall" is an abbreviated form of the full name "MacCall," and therefore ought to be so treated in alphabetical arrangement, and that such arrangement was customary and hence proper, this cannot be said to be the only rational inference of which the subsidiary facts and the 216 MASSACHUSETTS ELECTION CASES — 1917. evidence are susceptible. It cannot be declared as matter of law that the ultimate finding to the effect that the name " Mans- field" precedes the name "McCall" in alphabetical order is erroneous. It is not wholly unsupported by evidence. It follows as a necessary consequence of the finding of fact made by the single justice that the writ ought to issue com- manding the respondent to arrange the names of candidates in accordance therewith by placing that of Mansfield before that of McCall. So ordered. BEAUCHEMIN V. FLAGG. SUP. JUD. CT., 1918. 217 SUPREME JUDICIAL COURT. J. Wilfrid Beauchemin and Others v. J. Frank Flagg and Another. (Reported in 229 Mass. 23.) Worcester, Oct. 2, 1917 — Jan. 2, 1918. Present, Rugg, C.J., Braley, DeCourcy, Crosby and Pierce, JJ. Elections. Marking. — In the provision of the election laws contained in St. 1913, c. 835, sec. 292, as amended by St. 1914, c. 435, that "The voter on receiv- ing his ballot shall, . . . except in the case of voting for presidential electors, prepare bis ballot by making a cross ( X ) in the square at the right of the name of each candidate for whom he intends to vote," the requirement that the cross shall be marked "in the square" is merely directory and not mandatory, and a vote for a candidate may be counted where the cross was marked by the voter against the name of the candidate between that name and the square, if the inten- tion of the voter to vote for the candidate is manifest. Petition, filed on March 20, 1917, by ten qualified voters of the town of Hubbardston for a writ of mandamus addressed to J. Frank Flagg, the moderator of the annual town meeting held on Feb. 5, 1917, and William H. Wheeler, the town clerk of Hubbardston, commanding them to make a recount for school committee, counting as blank seven ballots which at the town meeting were counted for Maud Vanston Lufkin as a member of the school committee and declaring George H. Kelton, the opposing candidate, to have been elected a member of the school committee. The case was heard by Carroll, J., who made the findings of fact and the ruling of law that are described in the opinion. He made an order for a decree that a writ of mandamus should issue, and at the request of the parties reported the case for determination by the full court. If the ruling of law made by the single justice was right, the writ to issue. If the ruling made by him was wrong, the petition was to be dismissed. The case was argued at the bar in October, 1917, before Rugg, C.J., Loring, Braley, De Courcy and Pierce, JJ., and afterwards was submitted on briefs to all the justices except Loring and Carroll, JJ. H. W. Blake for the petitioners. C. M. Thayer, F. C. Smith, Jr., and G. A. Gaskill, for the respondents, submitted a brief. 218 MASSACHUSETTS ELECTION CASES — 1918. De Courcy, J. At the annual town meeting in Hubbardston Maud Vanston Lufkin was a candidate for the school committee. On the original count and at the recount she was declared elected. Seven of the ballots counted for her were marked, each with a cross against her name and between the square and her name, but not in the square. If these seven ballots are not counted for her, George H. Kelton, her opponent, will be elected. The single justice before whom the petition for a writ of man- damus was heard, found as a fact that it was the intention of the voter in each case to vote for Maud Vanston Lufkin. He ruled as matter of law, however, that the statute required the voter to express his choice in the square, and not elsewhere on the ballot, and the ballots must be counted as blanks, and re- ported the case to the full court with a stipulation that if this ruling was not right the petition should be dismissed. Where a ballot is so marked that upon inspection it indicates with reasonable certainty the candidate for whom the elector intended to vote, the vote should be counted in accordance with that intent, provided the voter has substantially complied with the requisites of the election statute. Strong, Petitioner, 20 Pick. 484; Ray v. Ashland, 221 Mass. 223; Woodward v. Sarsons, L. R. 10 C. P. 733. It is settled by the finding of the single justice that these seven voters intended to cast their ballots for Mrs. Lufkin. That distinguishes this case from O'Connell v. Mathews, 177 Mass. 518 and Flanders v. Roberts, 182 Mass. 524, where the intent of the voter was left to mere conjecture, as the cross was marked in the square opposite a blank; and from Brewster v. Sherman, 195 Mass. 222, where the single justice was unable to determine how the voter intended to vote on the question sub- mitted. That these seven voters honestly attempted to comply with the terms of the statute is not questioned. In order to deter- mine whether there was a substantial compliance with its pro- visions it is well to have before us the following sections which are applicable: — St. 1913, c. 835, sec. 259: "... Ballots shall be so printed as to give to each voter an opportunity to designate by a cross (X), in a square at the right of the name and designation of each candidate . . . his choice of candidates. . . ." Section 292 (as amended by St. 1914, c. 435): "The voter on receiving his ballot shall, . . . except in the case of voting for presidential electors, prepare his ballot by making a cross (X) in the square at the right of the name of each candidate for BEAUCHEMIN V. FLAGG. SUP. JUD. CT., 1918. 219 whom he intends to vote or by inserting the name and residence of such candidate in the space provided therefor and making a cross in the square at the right; and, upon a question submitted to the vote of the people, by making a cross in the square at the right of the answer which he intends to give." Section 303: ". . . If a voter marks more names than there are persons to be elected to an office, or if his choice cannot be determined, his ballot shall not be counted for such office." It is to be noted that, although section 292 provides that the voter shall make a cross "in the square at the right of the name," the only provision which expressly forbids the counting of a ballot deposited in the ballot box is section 303, and that applies only to cases where the voter's choice cannot be deter- mined. The Legislature, in contested election cases, has construed this requirement as to marking a cross in the square to be directory and not mandatory, where the voter's intent is manifest. See Moore v. Booth, 1910, House Document No. 259 and Riley v. Aldrich, 1904, House Document No. 343, where crosses were marked between the candidate's name and the square. Under the earlier statute it was likewise held that such informality does not nullify the ballot. Shepard v. Sears, Mass. Election Cases, 1886-1902 (Russell's ed.), 30; Jones v. Loring, 36; Adams v. Moore, 79. The precise question here involved has not been before this court. In Ray v. Ashland, 221 Mass. 223, 226, the candidate's name was not printed on the ballot, and the voter used a paster on which the candidate's name appeared. Section 259 of the election statute provides: "Blank spaces shall be left at the end of the list of candidates for each different office, equal to the number to be elected thereto, in which the voter may insert the name of any person not printed on the ballot for whom he desires to vote for such office." Instead of placing the paster in the blank space the voter placed it over the name of the candidate printed on the ballot. It was held that the ballot properly might be counted as a vote for the person named on the slip, the statutory provision as to the precise place of in- serting the name being directory and not mandatory. In our opinion that case in principle governs the case at bar; and the language used in the opinion is equally applicable here: "The statute does not say that he [the voter] must use this mode of expressing his will or his ballot is defective. If the construction by implication the petitioner urges is adopted, he [Kelton] gets 220 MASSACHUSETTS ELECTION CASES — 1918. an office to which he has not been elected, unless the will of majority of the voters at an election, where no fraud or mis- conduct appears or is claimed, is nullified, a result wholly in- consistent with the spirit of our election laws. The Legislature, if it intended to restrict the voter to the use of the blank spaces [squares] alone, should have directed in appropriate language that this was the only way in which the voter could express an independent choice." The decisions in other jurisdictions as to such irregularities in marking a ballot are not uniform. In some States the Massa- chusetts rule is adopted, and emphasis is placed upon giving effect to the voter's intention where it can be fairly determined on inspection of the ballot. In other States the provisions of the local statute as to the position of the cross mark are construed to be mandatory; or emphasis is placed on the possibility that marking the ballot in an improper place may reveal the identity of the voter, and render the ballot invalid for that reason. For collection of cases see 20 Ann. Cas. 672, 674; 47 L. R. A. 806, 827-831; 15 Cyc. 354, 357. Mass. Election Cases 1886-1892 (Russell's ed.), editor's note, 89-100. To avoid misapprehension it may be said that this decision does not involve the question whether the location of the cross constituted a "mark upon a ballot by which it may be identi- fied," within the prohibition of section 295. Presumably the single justice determined that question of fact in the negative, as he did not report it for our consideration. For the reasons hereinbefore stated a majority of the court are of opinion that the statute did not make it mandatory to count these seven ballots as blanks; and in accordance with the terms of the report the petition should be dismissed. Ordered accordingly. INDEX DIGEST. 221 INDEX DIGEST. APPORTIONMENT COMMISSIONERS. A petition for a writ of mandamus addressed to the Suffolk County appor- tionment commissioners, declaring void an attempted apportionment of rep- resentation in the legislative districts of that county and ordering the com- missioners to perform their duty in conformity. with Article 21 of the Amend- ments to the Constitution, may be maintained by a voter in a district against which discrimination was made in the attempted apportionment. Donovan v. Apportionment Commissioners (225 Mass. 55), p. 179. Upon the question of granting such a petition, evidence as to the reasons that influenced the commissioners in making the apportionment sought to be set aside is immaterial, and the report of the commissioners must be judged by what appears on its face in the light of the facts judicially known to the court. Ibid. An attempted apportionment of representation in the legislative districts of Suffolk County by commissioners selected under St. 1913, c. 835, sec. 390, which allots three representatives to 7,946 voters and only two representa- tives to 8,613 voters, and allots two representatives to 4,854 voters and only one representative to 5,596, is void, because it does not apportion the rep- resentatives assigned to Suffolk County "equally as nearly as may be, accord- ing to the relative number of legal voters " as required by Art. 21 of the Amend- ments to the Constitution. Ibid. A report of the Essex County commissioners made under Article 21 of the Amendments to the Constitution, of the division of that county into repre- sentative districts and the apportionment among those districts of the repre- sentatives allotted to them by St. 1916, c. 270, sec. 24, can be called in question in the courts only by the Attorney-General representing the public, or by one who shows that his constitutional rights have been impaired. McGlue v. County Commissioners (225 Mass. 59), p. 183. Accordingly a voter in a legislative district of that county against which no unjust discrimination has been made cannot maintain a petition for a writ of mandamus to set aside such a report of the county commissioners on account of alleged discriminations against other districts. Ibid. Upon a petition by a voter of legislative District No. 14 of Essex County against the county commissioners of that county for a writ of mandamus to set aside their report apportioning the legislative representatives in that county, it was held that the petition must be dismissed, because an excess of 174 voters above the representative unit did not show that the petitioner's constitutional rights had been violated. Ibid. As to the third report of the Suffolk County apportionment commissioners, it was held that, while the division and apportionment made by the report were not ideal, the inequalities of voting power between the different districts were not so great and the means of avoiding them were not so clear as to compel this court to decide that there was a grave and unnecessary inequality between the different districts in violation oi the requirements of the Constitution. Brophy v. Apportionment Commissioners (225 Mass. 124), p. 189. 222 INDEX DIGEST. APPORTIONMENT COMMISSIONERS — Concluded. The Suffolk County apportionment commissioners, elected under St. 1913, c. 835, sec. 390, in 1915 and every tenth year thereafter, who are directed to "so divide said county into representative districts of contiguous territory as to apportion the representation of said county as nearly as may be, according to the number of voters of the several districts," must perform their duties as directed by Article 21 of the Amendments to the Constitution. Attorney- General v. Apportionment Commissioners (224 Mass. 598), p. 165. And, where it is manifest from the inspection of an apportionment attempted to be made by them that there is grave, unnecessary and unreasonable in- equality in the representation assigned by them to different districts, the Constitution has been violated and their attempted action is void. Ibid. Inequalities which were held to show gross and palpable inequalities, ex- tending to a considerable number of the districts, and to have been sufficient to make the attempted apportionment void. Ibid. A petition for a writ of mandamus addressed to the Suffolk County apportion- ment commissioners, who had filed a report purporting to make an apportion- ment of representation in the legislative districts in that county which was void as in violation of Article 21 of the Amendments in the Constitution, command- ing them to proceed with the performance of their duties under St. 1913, c. 835, in accordance with the provisions of the Constitution, affords the appropriate form of relief and is a remedy expressly provided by section 502 of the statute named for enforcing the provisions of that chapter. Ibid. The remedy by mandamus described above is available to a citizen and voter interested in the execution of the laws. Ibid. In the case above described it was held that, the public interests being in- volved, the Attorney-General might institute and maintain a petition for a writ of mandamus to vindicate the public right. Ibid. On such a petition by the Attorney-General, a clause in the reservation for determination of the case by this court, stating that, if the question whether the respondents acted in good faith was material this court might draw con- clusions from the apportionment itself, was disregarded by this court because this court has no power to decide facts in a proceeding at law. Ibid. In the case above described it was held that in issuing the writ of mandamus no specific time need be fixed for the completion by the commissioners of their work, it being assumed that they would be actuated by a consciousness of serious public duty with the obligations thereby entailed. Ibid. APPORTIONMENT OF SENATORS AND REPRESENTATIVES. By Article 21 of the Amendments to the Constitution, providing for the dividing of the counties by special commissioners "into representative districts of contiguous territory, so as to apportion the representation assigned to each county equally, as nearly as may be, according to the relative number of legal voters in the several districts of each county," the principle of practical equality of representation among all the voters of the Commonwealth is established. Attorney -General v. Apportionment Commissioners (224 Mass. 598), p. 165. The Suffolk County apportionment commissioners elected under St. 1913 c. 835, sec. 390, in 1915 and in every tenth year thereafter, who are directed to "so divide said county into representative districts of contiguous territory as to apportion the representation of said county, as nearly as may be, accord- ing to the number of voters in the several districts," must perform their duties as directed by Article 21 of the Amendments to the Constitution. Ibid. INDEX DIGEST. 223 APPORTIONMENT OF SENATORS AND REPRESENTATIVES — Concluded. And where it is manifest, from the inspection of an apportionment, attempted to be made by them, that there is grave, unnecessary and unreasonable ine- quality in the representation assigned by them to different districts, the Con- stitution has been violated and their attempted action is void. Ibid. Inequalities, held to show gross and palpable inequalities extending to a considerable number of districts, and to have been sufficient to make the attempted apportionment void. Ibid. t BALLOT. Ballot held to have been marked so imperfectly that voter's choice on question of license could not be determined. Isaac Brewster v. Charles H. Sherman & Others (195 Mass. 222), p. 132. The requirements of St. 1898, c. 548, sees. 141, 142, 145, as to the time of filing nomination papers and the certificates thereon, although binding on the officers whose duty it is to prepare and pass upon the official ballot, do not invalidate ballots cast for a candidate nominated by papers filed too late and not properly certified. Blackmer v. Hildreih et at. (181 Mass. 29), p. 95. CAUCUS. If a caucus is called for a certain hour, and, it being known that the regularly elected warden will be absent, a temporary warden is elected a few minutes before the hour named to fill the vacancy and when the caucus opens and thereafter acts as warden, semble, that the election of the warden is good under St. 1898, c. 548, sec. 129, giving the power to fill vacancies "at a caucus;" at any rate, there is a warden de facto, and the votes cast at the caucus will not be affected by the irregularity. Commonwealth v. Rogers (181 Mass. 184), p. 99. An indictment for aiding and abetting illegal voting at a caucus is none the less sustained because it appears that there were informalities at the caucus, if they did not make the vote of the caucus void. Ibid. See Indictment. CAUCUS LAWS. See Mandamus. CONSPIRACY. At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, evidence that fraudulent voters were spoken to by one of the conspirators before all of them had come into the scheme is admissible, in connection with proof that the others did come in and by impli- cation adopted the act, and because the usual way of proving a conspiracy is by showing a series of acts on the part of the several defendants all converging to one point. Commonwealth v. Rogers (181 Mass. 184), p. 99. On the trial of an indictment for conspiracy to procure persons to vote illegally at a caucus, there is no variance if it appears that when the conspiracy was formed the conspirators did not know any of the persons named in the indictment as the persons to be procured, and that one of them was not spoken to until 12 o'clock on the day of the caucus when all the plans were complete. In such a case the fact that the conspiracy is indictable in ite initial stages does not prevent its being indicted in the shape which it ultimately assumes. Ibid. 224 INDEX DIGEST. CONSPIRACY — Concluded. At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, it was held that there was sufficient evidence to go to the jury of the guilt of one of the defendants, who was present at the pre- liminary meetings, which were held in his house, and who contributed money toward the illegal scheme and helped at the time of the caucus. Ibid. At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, an exception was taken to a refusal to rule, that no unfavorable inference should be drawn against one of the defendants, who acted as de facto warden at the caucus, because he delayed for half an hour the opening of the caucus, if that delay was on account of the enclosures or pens outside the guard rail. There was independent evidence that the delay was for the purpose of facilitating the carrying off of certain ballots and giving time to take them to the place where the fraudulent voters were assembled. Held, that the ruling rightly was refused. Ibid. CONSTITUTIONAL LAW. Apportionment of Representation. Who may question constitutionally. A petition for a writ of mandamus addressed to the Suffolk County appor- tionment commissioners declaring void an attempted apportionment of rep- resentation in the legislative districts of that county and ordering the commis- sioners to perform their duty in conformity to Article 21 of the Amendments to the Constitution may be maintained by a voter in a district against which discrimination was made in the attempted apportionment. Donovan v. Apportionment Commissioners (225 Mass. 55), p. 179. A report of the Essex County commissioners made under Art. 21 of the Amendments to the Constitution of the division of that county into repre- sentative districts, and the apportionment among those districts of the repre- sentatives allotted to them by St. 1916 c. 270, sec. 24, can be called in question in the courts only by the Attorney-General representing the public, or by one who shows that his constitutional rights have been injured. McGlue v. County Commissioners (225 Mass. 59), p. 183. Accordingly a voter in a legislative district of that county against which no unjust discrimination has been made cannot maintain a petition for a writ of mandamus to set aside such a report of the county commissioners on account of alleged discriminations against other districts. Ibid. Whether apportionment was constitutional. An attempted apportionment of representation in the legislative districts of Suffolk County by commissioners elected under St. 1913 c. 835, sec. 390, which allots three representatives to 7,946 voters and only two representa- tives to 8,613 voters, and allots two representatives to 4,854 voters and only one representative to 5,596, is void, because it does not apportion the rep- resentatives assigned to Suffolk County "equally, as nearly as may be, according to the relative number of legal voters," as required by Article 21 of the Amendments to the Constitution. Donovan v. Apportionment Commis- sioners (225 Mass. 55), p. 179. Upon the question of granting a petition for a writ of mandamus declaring an apportionment void and directing the commissioners to make a proper apportionment, evidence as to the reasons that influenced the commissioners in making the apportionment sought to be set aside is immaterial, and the report of the commissioners must be judged by what appears on its face in the light of the facts judicially known to the court. Ibid. INDEX DIGEST. 225 CONSTITUTIONAL LAW — Continued. Apportionment of Representation — Concluded. As to the third report of the Suffolk County apportionment commissioners it was held that, while the division and apportionment made by the report were not ideal, the inequalities of voting power between the different districts were not so great, and the means of avoiding them were not so clear, as to compel this court to decide that there was a grave and unnecessary inequality between the different districts in violation of the requirements of the Con- stitution. Brophy v. Apportionment Commissioners (225 Mass. 124), p. 189. Upon a petition by a voter of legislative district No. 14 of Essex County against the county commissioners of that county for a writ of mandamus to set aside their report apportioning the legislative representation in that county, it was held that the petition must be dismissed, because an excess of 174 voters above the representative unit did not show that the petitioner's consti- tutional rights had been violated. McGlue v. County Commissioners (225 Mass. 59), p. 183. Caucus Laws. Those provisions of the election act, St. 1898, c. 548, which regulate caucuses and voting at them are constitutional. Commonwealth v. Rogers (181 Mass. 184), p. 99. The provision of St. 1898, c. 548, sec. 91, that no person having voted in the caucus of one political party shall be entitled to vote or take part in the caucus of another political party within the ensuing twelve months, is valid. Ibid. ■ St. 1898, c. 548, sec. 92, requiring voting lists to be used as check lists in balloting at caucuses, is valid. Ibid. Elections. Those provisions of the election act, St. 1898, c. 548, which regulate caucuses and voting at them, are constitutional. Commonwealth v. Rogers (181 Mass. 184), p. 99. The provision of St. 1898, c. 548, sec. 91, that no person having voted in the caucus of one political party shall be entitled to vote or take part in the caucus of another political party within the ensuing twelve months, is valid. Ibid. St. 1898, c. 548, sec. 92, requiring voting lists to be used as check lists in balloting at caucuses, is valid. Ibid. So much of St. 1914, c. 783, sec. 10, as undertakes to impose upon the courts the duty of inquiry into corrupt practices in connection with the election of members of the General Court is contrary to chapter 1, section III, Article X, of the Constitution, which provides that " The house of representatives shall be the judge of the returns, elections, and qualifications of its own members." Dinan v. Swig (223 Mass. 516), p. 160. Separation of Departments of Government. So much of St. 1914, c. 783, sec. 10, as undertakes to impose upon the courts the duty of inquiry into corrupt practices in connection with the election of members of the General Court is contrary to Article 30 of the Declaration of Rights, which declares the separation of the legislative and judicial depart- ments of the government. Dinan v. Swig (223 Mass. 516), p. 160. Unconstitutionality of Separable Portion of a Statute. The portion of the corrupt practices act contained in St. 1914, c. 783, sec. 10, which in Dinan v. Swig, 223 Mass. 516, was held to be unconstitutional and 226 INDEX DIGEST. CONSTITUTIONAL LAW — Concluded. Unconstitutionality of Separable Portion of a Statute — Concluded. void as in violation of the provisions of the Constitution, which make each branch of the General Court the final judge of the returns, elections and quali- fications of its own members, is distinct and separate from the rest of the act, and does not affect the validity of the other parts. Ashley v. Three Justices of Superior Court (228 Mass. 63), p. 194. See General Court. Jury and Jurors. Voting Machine. CORRUPT PRACTICES. So much of St. 1914, c. 783, sec. 10, as undertakes to impose upon the courts the duty of inquiry into corrupt practices in connection with the election of members of the General Court is unconstitutional. Dinan v. Swig (223 Mass. 516), p. 160. See House of Representatives. Superior Court. DOMICILE. Personal absence for a while does not necessarily change one's domicile, and personal presence in a place for a somewhat prolonged period, in absence of intention, does not necessarily establish domicile there. Clarkson v. Vinson (Senate, 1912), p. 47. ELECTIONS. Irregularities in. The illegal distribution of circulars, etc., within the distance from the polls prohibited by statute will not invalidate an election in absence of evidence showing that the voters were actually influenced thereby, and in absence that such distribution was authorized or consented to by the candidate in whose behalf such distribution was conducted. Harvey v. Bradbury (House, 1920), p. 58. The House is the judge of the election and qualification of its members. Ibid. If the intent of the voter can fairly be determined, effect should be given such intent and the vote counted in accordance therewith. Ibid. The House will not disenfranchise voters who have deposited their ballots in good faith unless so directed specifically by statute. Ibid. Filing Nomination Papers. The requirements of St. 1898, c. 548, sees. 141, 142, 145, as to the time of filing nomination papers and the certificates thereon, although binding on the officers whose duty it is to prepare and pass upon the official ballot, do not invalidate ballots cast for a candidate nominated by papers filed too late and not properly certified. Blackmer v. Hildreth (181 Mass. 69), p. 95. Nomination of Candidates. Irregularities. Under R. L. c. 11, sec. 149, when a certificate of a nomination for a State office has been filed with the Secretary of the Commonwealth and is "in apparent conformity with law," it is "valid unless objections thereto are made in writing" and are filed in the manner prescribed by that section. Attorney-General v. Campbell (191 Mass. 497), p. 123. INDEX DIGEST. 227 ELECTIONS — Continued. Nomination of Candidates. Irregularities — Concluded. If the Governor has ordered that a special election be held to fill a vacancy in the office of a clerk of courts at the same time as the annual State election, and a candidate for the office is nominated at a caucus for the nomination of State officers held on the same day on which the precept for the special election is issued, so that the provisions of R. L. c. 11, sees. 89, 90, in regard to the calling of a caucus for a special election are not complied with, and if the nomination is certified to the secretary of the Commonwealth and the name goes unchallenged upon the printed ballot, and the candidate is elected, the irregularities in regard to the making of the nomination do not invalidate his election. Ibid. Meetings, Calling of. A warrant in writing for a meeting of a fire district signed by the chief engineer is a sufficient compliance with the provision of R. L. c. 32, sec. 55, that such a meeting shall be called when requested in writing by the chief engineer. Fritz v. Crean (182 Mass. 433), p. 109. An act creating a fire district provided that it might "adopt by-laws pre- scribing by whom and how meetings may be called and notified." One of the by-laws of the district provided " that the annual meeting shall be called ac- cording to law." The district passed a vote requiring copies of the warrant calling a meeting to be posted at various places named, but this vote did not operate as an amendment to the by-law because not adopted in the manner required for such an amendment. A meeting of the district was notified in accordance with R. L. c. 32, sec. 55, but the vote requiring the posting of copies of the warrant was not complied with. Held, that the meeting was notified properly "according to law" as required by the by-laws. Ibid. Under R. L. c. 32, sec. 55, if a declaration by the moderator of a meeting of a fire district is necessary in order to complete an election of an officer, a declara- tion made by tellers in the presence of the moderator and received by the meeting is a declaration by the moderator within the meaning of the statute. Ibid. A warrant in writing for the meeting of a fire district signed by the chief engineer is sufficient compliance with the provision of R. L. c. 32, sec. 55, that such meeting shall be called when requested in writing by the chief en- gineer. Notice of Meeting, Irregularities in, will not avoid Election. Where the notice of the meeting for the election of State officers was served in a town only four days before the election instead of the seven days as re- quired by statute, the validity of the election of a representative is not neces- sarily affected. If the voters are actually notified the purpose of the law is accomplished. Pratt v. Sargent (House, 1912), p. 45. Official Ballot, Order of Names on. Upon a petition for a writ of mandamus a finding of a single justice, war- ranted by the evidence presented before him, that the surname of a candidate for Governor always has been spelled "McCall" and never has been spelled "MacCall," that the name of the candidate is "McCall" and not "MacCall," and that under St. 1913, c. 835, sec. 259, "the name of Frederick W. Mans- field should precede that of Samuel W. McCall in the arrangement of names in alphabetical order upon the official ballot of candidates for Governor," is 228 INDEX DIGEST. ELECTIONS — Continued. Official Ballot, Order of Names on — Concluded. a finding of fact which is not open to revision by this court. Mansfield v. Secretary of the Commonwealth (228 Mass. 262), p. 213. See Ballots. Caucus. Constitutional Law. Fraud and Intimidation. Marking Official Ballot. Voting Machine. Election Circulars. The House will not declare vacant the seat of a member, on account of the use of a misleading circular or poster used previous to the election, in absence of evidence that such circular did actually mislead and influence the voters. Callahan v. Sweeney (House, 1921), p. 69. Election Petitions. Election Officer. See General Court. Practice. Superior Court. The provisions of St. 1898, c. 548, sec. 173, prohibiting a candidate for elec- tion from acting as an election officer in a voting precinct, does not apply to the moderator of a town meeting. Wheeler v. Carter (180 Mass. 382), p. 87. St. 1898, c. 548, sec. 179, provides that the selectmen of towns not divided into voting precincts shall appoint tellers at least five days before an election, and that the presiding officers at the election may appoint additional tellers. At a town election the selectmen had failed to appoint tellers and the town clerk, presiding before the election of the moderator, appointed tellers who acted throughout the meeting. Semble, that the authority to appoint addi- tional tellers included the right to act when the selectmen had failed to appoint any previously and that the appointment was good, and held, that at any rate, the tellers were de facto officers and an irregularity in their appointment would not affect the legality of the election. Ibid. Evidence. If one who has been declared elected chief engineer at a meeting of a fire district is present at a recount, to guard his interests, he is not estopped thereby from setting up the illegality of the recount. Fritz v. Crean (182 Mass. 433), p. 109. Semble, that where oral evidence of the doings of a meeting of a fire dis- trict has been put in without objection, it is too late to take the ground that the declaration by the moderator of the vote of the meeting must appear by the records of the clerk alone, but, if such a record is required, a record stat- ing that there was a declaration of the election accepted by the meeting im- ports a declaration by the moderator, if such a declaration is necessary. Ibid. Evidence that certain voters in an open town meeting refrained from voting because a candidate for selectman acted as moderator is immaterial and in- admissible. Wheeler v. Carter (180 Mass. 382), p. 87. INDEX DIGEST. 229 ELECTIONS — Continued. Evidence — Concluded. At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, an exception was taken to a refusal to rule that no unfavorable inference should be drawn against one of the defendants who acted as de facto warden at the caucus, because he delayed for half an hour in opening the caucus, if that delay was on account of the enclosures or pens outside the guard rail. There was independent evidence that the delay was for the purpose of facilitating the carrying off of certain ballots and giving time to take them to the place where the fraudulent voters were assembled. Held, that the ruling rightly was refused. Commonwealth v. Rogers (181 Mass. 184), p. 99. At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, the presiding judge, as the ground for admitting the declarations of one defendant as evidence against the others, stated his ruling that there was sufficient evidence of a conspiracy against all the de- fendants. Held, that the ruling was right and the statement of it proper. When a preliminary finding of fact on the part of the judge is necessary for such a purpose there is no duty to conceal it from the jury. Ibid. On a trial for conspiracy, declarations of the several defendants, admissible against themselves but not against the others, may be admitted, the jury being cautioned that statements made after the conspiracy had been carried out are admissible only against the party making them. Ibid. On a trial for conspiracy the weight of the testimony of fellow conspirators properly is left to the jury. Ibid. At the trial of an indictment for a conspiracy to procure persons to vote illegally at a certain caucus, it was held that there was sufficient evidence to go to the jury of the guilt of one of the defendants, who was present at the preliminary meetings, which were held in his house, and who contributed money toward the illegal scheme and helped at the time of the caucus. Ibid. Best Evidence. Official tally sheets kept by defendant indicted for willfully making false count and report of votes in election are best evidence to show that count was kept by him. Commonwealth v. Edgerton (200 Mass. 318), p. 147. At the trial of an election officer charged with making false count and report of votes, it is not necessary to produce original ballots to show what true count of votes was, but official registrars may testify, refreshing recollections from sheets used by them at recount. Ibid. Refreshing Recollection. Official registrars at recount of vote may testify, refreshing recollections from tally sheets kept by them, at trial of election officer charged with will- fully making false count and report of votes, production of original ballots not being necessary. Ibid. Relevancy. Testimony of bystanders at the counting of the votes at an election, held under the circumstances, relevant evidence at the trial of election officials charged with willfully making false counting and reporting of votes. Ibid. False counting and reporting of votes. At the trial of an indictment under St. 1907, c. 560, sec. 410, against an elec- tion officer for willfully performing contrary to law the duties imposed upon him by section 270 of the same chapter in making a false count of votes in an 230 INDEX DIGEST. FALSE COUNTING AND REPORTING OF VOTES — Continued. election and knowingly making a false report of the result of the canvass and count of votes, the official tally sheets kept by the defendant in the counting of the votes are competent and are the best evidence to show what the count kept by the defendant was. Ibid. At the trial of an indictment under St. 1907, c. 560, sec. 410, against an elec- tion officer for willfully performing contrary to law the duties imposed upon him by section 270 of the same chapter in making a false count of votes in an election and knowingly making a false report of the result of the canvass and count of votes, the testimony of bystanders, who observed the defendant's conduct in keeping a false tally of the votes, is admissible to show the facts which they observed although they were not election officers and were interested in the election only as citizens. Ibid. At the trial of an indictment under St. 1907, c. 560, sec. 410, against an election officer for willfully performing contrary to law the duties imposed upon him by section 270 of the same chapter in making a false count of votes in an election and knowingly making a false report of the result of the canvass and count of votes, the Commonwealth, against the objection of the defendant, introduced the testimony of the registrars of voters to show that upon a recount by them it appeared that the ballots had not been counted and re- ported correctly, and the jury were allowed to inspect the sheets used by the registrars at the recount and used by them in testifying to refresh their recol- lections, the jury being instructed that those sheets were not evidence and could not be considered by them. The defendant contended that instead of this testimony the ballots themselves, being the best evidence, should have been produced for the jury to count. Held, that, assuming that the production of the ballots could have been compelled, which was doubted, there being no question raised as to any irregularities appearing on the face of the ballots, the number of the ballots cast on one side and the other was a matter of computation, and that the computation could be testified to by any one who made it, and there- fore that the registrars, refreshing their recollections by referring to the sheets used by them at the recount, properly could testify as to the result of the recount so far as it related to the count and report made by the defendant, and that the jury properly were allowed to inspect the sheets for the purpose of assisting them in passing upon the credibility of the registrars. Ibid. At the trial of an indictment under St. 1907, c. 560, sec. 410, against an election officer for willfully performing contrary to law the duties imposed upon him by section 270 of the same chapter in making a false count of votes upon the question of the granting of licenses for the sale of intoxicating liquors in a city and in knowingly making a false report of the result of the canvass, there was evidence that the defendant made marks on a tally sheet as another election officer called off the answers on the ballots, for the purpose of keeping an account of the votes; that in doing so he marked twenty-one more votes for license, fifteen less votes against license and six less blanks than the other election officer called off to him and then afterwards appeared to be the true numbers upon a recount by the registrars of voters; and also that, when the defendant became aware that two bystanders were following the count, he kept the tally correctly. There was other evidence from which guilty knowledge on the part of the defendant could have been inferred. It further appeared that the defendant and the election officer who called off the answers to him signed the tally sheets thus marked by the defendant, and that these tally sheets were delivered to and. received by those charged with the duty of declaring the results of the election as the reports of the results of the votes counted and canvassed by the defendant and the other election officer who signed them. Held, that there was evidence for the jury that the defendant willfully made INDEX DIGEST. 231 FALSE COUNTING AND REPORTING OF VOTES — Concluded. a false count and knowingly made a false report of the canvass of votes; that the count and canvass by the defendant and the election officer who called off the answers were none the less a count and canvass by the defendant because he merely marked the tally sheets while the other handled the ballots; and that the tally sheets signed by the two constituted and were intended to constitute reports of the results of the votes counted by them. Ibid. FRAUD AND INTIMIDATION. There is no valid ground for contesting an election on account of alleged intimidation. if the result would not be changed, and such would be the event unless a number of voters had been prevented from voting, sufficient to have varied the result. Bullock and Lattimore v. Burke and Driscoll (House, 1921) , p. 73. The sending to the voters of a district of a circular containing misleading and false statements in respect to a candidate for the House will not invalidate an election, if such circular is not shown actually to have influenced voters, or to have been authorized, consented to, or knowingly ratified by the candidate in whose behalf the same was sent, nor unless it appears that the result of the election was materially affected thereby. Ibid. Fraud to invalidate an election must be shown to have affected the result, and such fraud must be known and ratified by the candidate. Ibid. The question in each case must be, has the great body of the electors had an opportunity to express their choice through the medium of the ballot and according to law, and this question must be decided in the light of all the facts and circumstances shown in the evidence. Ibid. GENERAL COURT. The provisions of the corrupt practices act, that election petitions shall be entered in the Superior Court in Suffolk County, is within the power of the General Court, and the respondent's right under Article 11 of the Declaration of Rights "to obtain right and justice freely" is not impaired thereby. Ashley v. Three Justices of Superior Court (228 Mass. 63), p. 194. So much of St. 1914, c. 783, sec. 10, as undertakes to impose upon the courts the duty of inquiry into corrupt practices in connection with the election of members of the General Court is contrary to chapter 1, section III, Article X of the Constitution, which provides that "The house of representatives shall be the judge of the returns, elections, and qualifications of its own members," and also to Article 30 of the Declaration of Rights, which declares the separa- tion of the legislative and judicial departments of the government. Dinan v. Swig (223 Mass. 516), p. 160. HOUSE OF REPRESENTATIVES. Qualification of Membeks. Statements made by a member on the floor of the House will not be allowed to determine or affect his qualifications as a member of another General Court. Bullock and Lattimore v. Burke and Driscoll (House, 1921), p. 73. Statements by a representative that he does not represent a certain class of voters in his district will not be allowed to affect his qualifications as a member. Ibid. Corrupt Practices. Offences against the corrupt practice statutes when trivial and unimportant will not affect the election of a member. Ibid. 232 INDEX DIGEST. HOUSE OF REPRESENTATIVES — Concluded. House of Repeesentatives. The House of Representatives shall be the judge of the returns, elections and qualifications of its members. Callahan v. Sweeney (House, 1921), p. 69. INDICTMENT. On an indictment for a conspiracy to procure persons to vote at a caucus who were not entitled to vote there, the conspiracy might be completed before any of the persons to be procured had been agreed upon, and the particular nature of the disqualification is not material to the offence and need not be alleged in the indictment. Commonwealth v. Rogers (181 Mass. 184), p. 99. An indictment for conspiring to procure persons to vote at a certain caucus who were not entitled to vote there is not bad, because under its charges the conspiracy might be to procure votes which were illegal for different reasons under St. 1898, c. 548, sees. 377, 378, and to abet contrary to section 390 of that statute, the offences punished under these sections being different, since the conspiracy alleged is one, and properly might be alleged to intend them all. Ibid. Under St. 1899, c. 409, sec. 10, an indictment for conspiring to procure persons to vote illegally at a certain caucus, need not state the place of the offence. Ibid. On the trial of an indictment for conspiracy to procure persons to vote il- legally at a caucus, there is no variance if it appears that when the conspiracy was formed the conspirators did not know any of the persons named in the indictment as the persons to be procured, and that one of them was not spoken to until 12 o'clock on the day of the caucus when all the plans were complete. In such a case the fact that the conspiracy is indictable in its initial stages does not prevent its being indicted in the shape which it ultimately assumes. Ibid. An indictment for aiding and abetting illegal voting at a caucus is none the less sustained because it appears that there were informalities at the caucus, if they did not make the vote of the caucus void. Ibid. JURY AND JURORS. Trial by jury is not essential to the due process of law secured by the Four- teenth Amendment to the Constitution of the United States. Ashley v. Three Justices of Superior Court (228 Mass. 63), p. 194. The provision in regard to trial by jury in the Seventh Amendment to the Constitution of the United States relates only to the courts of the United States. Ibid. The provisions of the corrupt practices act contained in St. 1913, c. 835, sec. 497, as amended by St. 1914, c. 783, sec. 12, considered in connection with the Fortieth Amendment to the Constitution, do not give the respondent in an election petition a constitutional right to a trial by jury thereon. Ibid. Article 15 of the Declaration of Rights does not apply to an election peti- tion under the statute named above, because the right to hold an office to which one has been elected is not "property" within the meaning of the word as used in the Declaration of Rights, and a proceeding upon an election petition is not a "suit between two or more persons" in the sense in which those words there are used. Ibid. INDEX DIGEST. 233 MANDAMUS. Mandamus will lie against the registrars of voters of a city, commanding them, upon a recount under R. L., c. 11, sec. 267, not to count certain ballots cast for mayor on which the voter's choice cannot be determined, to make and sign a statement of the question raised by the application for a recount of the votes cast for mayor, omitting the ballots thus defective as votes for any person for that office, and to return this statement to the city clerk. Flanders v. Roberts (182 Mass. 524), p. 113. Mandamus will not lie to enforce the caucus or election laws, the remedy for a violation being given by St. 1898, c. 548, sec. 417, R. L. c. 11, sec. 421, Perry v. Hull (180 Mass. 547), p. 93. Upon a report by a single justice who heard a petition for a writ of man- damus, which is a proceeding at law, this court has no jurisdiction to change or reverse a decision as to the facts made by the single justice who heard the case unless the finding of fact is not warranted by the evidence. Mansfield v. Secretary of the Commonwealth (228 Mass. 262), p. 213. A writ of mandamus is the proper remedy to prevent the board of registrars of voters of a town from counting an imperfectly marked ballot on a recount. Brewster v. Sherman (195 Mass. 222), p. 132. A voter and taxpayer of a town is the proper party to maintain a petition for a writ of mandamus ordering the board of registrars of voters of the town not to count an imperfectly marked ballot. Ibid. A petition for a writ of mandamus addressed to the Suffolk County appor- tionment commissioners, who had filed a report purporting to make an ap- portionment of representation in the legislative districts in that county which was void as in violation of Article 21 of the Amendments to the Constitution, commanding them to proceed with the performance of their duties under St. 1913 c. 835, in accordance with the provisions of the Constitution, affords the appropriate form of relief and is a remedy expressly provided by section 502 of the statute named for enforcing the provisions of that chapter. At- torney-General v. Apportionment Commissioners (224 Mass. 598), p. 165. The remedy by mandamus described above is available to a citizen and voter interested in the execution of the laws. Ibid. In the case above described it was held that in issuing the writ of mandamus no specific time need be fixed for the completion by the commissioners of their work, it being assumed that they would be actuated by a consciousness of serious public duty with the obligations thereby entailed. Ibid. In the case described above it was held that the public interests being in- volved, the Attorney-General might institute and maintain a petition for a writ of mandamus to vindicate the public right. Ibid. On a petition by the Attorney-General for a writ of mandamus addressed to the Suffolk County apportionment commissioners elected under St. 1913, 835, section 390, declaring an apportionment of representation in the legis- lative districts in that county attempted to be made by the respondents to be void as not in conformity with the Constitution, a clause in the reservation for determination of the case by this court, stating that, if the question whether the respondents acted in good faith was material, this court might draw con- clusions from the apportionment itself, was disregarded by this court because this court has no power to decide facts in a proceeding at law. Ibid. See Apportionment Commissioners. 234 INDEX DIGEST. MARKING OF OFFICIAL BALLOT. Under R. L. c. 11, sec. 238, a cross marked on a ballot in the square op- posite a blank, and next below the square opposite the name of a candidate, cannot be counted as a vote for that candidate, although the person who marked it voted by cross in the proper square for each of the other nominees of the same political party, eleven in number, whose names were on the ballot. Flanders v. Roberts (182 Mass. 524), p. 113. The provisions of the election law requiring that the cross shall be marked "in the square" is merely directory and not mandatory, and a vote for a candidate may be counted where the cross was marked by the voter against the name of the candidate between the name and the square, if the intention of the voter to vote for the candidate is manifest. Beauchemin v. Flagg (229 Mass. 23), p. 217. Where a voter at an annual election of a town who has made a cross in each of the squares opposite the names of officers for whom he voted, makes in the square at the right of the word "Yes," following the question relative to the granting of licenses, a diagonal mark and nothing more, this warrants a finding that the voter's choice cannot be determined, and the ballot should not be counted on this question. Brewster v. Sherman (195 Mass. 222), p. 132. Ballots marked with what may be termed double crosses in the square opposite the name of a candidate will be counted. Dennett v. Sullivan (House, 1910), p. 40. Ballot marked with a diagonal mark in the square opposite the name of a candidate where the rest of the ballot is properly marked with crosses will not be counted as a vote. Ibid. Ballots marked with diagonal marks in the square opposite the name of the candidate will be counted, where the rest of the ballot is similarly marked. Ibid. Check marks will be counted as votes where the rest of the ballot is similarly marked. Ibid. Ballot marked with cross in the space between the name of the candidate and the name of the political designation will be counted. Ibid. A ballot where the lines of intersection run in opposite directions but in- tersect in the square opposite the name of a candidate, although the cross is not complete and one line does not pass the point of intersection, will be counted for that candidate. Moore v. Booth (House, 1910), p. 35. Where the ballot was marked with a perfect cross throughout, except for one candidate, in the square opposite whose name appeared a line like the second stroke of a cross, around and upon a part of which appeared a circle, the ballot will not be counted for such candidate, as such an unusual mark will be deemed to have some significance and might have been intended for a mutilation of the cross which had been made, and therefore the intention of the voter is not clear. Ibid. Ballots where cross marks in the squares opposite the names of the can- didates were not so clearly defined as the rest of the ballot, in absence of evidence of erasure, will be counted. Riley v. Aldrich (House, 1904), p. 28. Ballot marked with two oblique strokes in the square opposite the name of the candidate, forming a rude letter Y, will be counted. Ibid. Ballot marked with two oblique strokes in the square opposite the name of the candidate, which, if they had intersected would have formed a letter Y, will be counted. Ibid. INDEX DIGEST. 235 MARKING OF OFFICIAL BALLOT — Concluded. Ballot where intersection of cross marks was upon lower line of square, opposite the name of the candidate, a blank space being next below, will be counted. Ibid. Ballots with single stroke in the square will be counted. Ibid. Ballots with two single strokes in the square, like the figure 11, will be counted. Ibid. Ballot with caret, or inverted V, in the square, will be counted. Ibid. Ballots with cross mark between residence and political designation will be counted. Ibid. Ballot where pencil had injured paper in marking, mark being in the proper place, will be counted. Ibid. A ballot having crosses in the squares opposite the names of the two Demo- cratic candidates, and another cross in the space above the heading "Repre- sentative to General Court," the cross above the space was ignored and the ballot counted. Ibid. Ballot with mark in square opposite the name of the candidate, resembling an inverted Y, will be counted. Ibid. Ballot with cross in the square opposite the name of the candidate, marked over with the figure 2, will be counted. Ibid. If the intention of the voter can be determined from an inspection of the ballot, that intention must prevail. In other words, if it be reasonably clear for whom the voter intended to vote, the ballot must be so counted. See Mandamus. PASTERS ON OFFICIAL BALLOT. The election laws relating to the use of stickers or pasters were enacted not merely to preserve the purity and secrecy of the ballot and to curb, in so far as possible, corrupt practices, but also to ascertain and not thwart the popular will honestly expressed. Harvey v. Bradbury (House, 1920), p. 58. Election officers should refuse to accept ballots or stickers not in conformity with law; if allowed to be deposited and not counted the voters would be dis- enfranchised. Ibid. Where the paster or sticker is pasted over the name of the opposing candi- date, the vote will be counted for the substituted name, as the intent to make the substitution is clear. Ibid. The use of the name of a party as "Republican" on a paster, though pro- hibited by statute, will not invalidate an election, in absence of evidence that the result of the election was affected thereby. Ibid. The provisions of the statutes relative to the size of type to be used on stickers is directory and not mandatory, and if ballots containing such irregular stickers are once deposited in the ballot box they should be counted. Ibid. If irregular stickers are deposited in the ballot box they should be counted, otherwise the voter is disenfranchised. Ibid. 236 INDEX DIGEST. PASTERS ON OFFICIAL BALLOT — Concluded. Ieregttlarities in. The intent of the voter honestly expressed should be the governing rule, unless the statute provides, as a penalty for the violation of its provisions, that the vote should not be counted. Ibid. A voter is not required to ascertain the legality of a sticker or paster which he is allowed by election officials to paste on his ballot, and which ballot is de- posited by the voter in good faith. Ibid. There being no express statutory provision to the contrary, a voter's desig- nation on the official ballot of his choice for a certain office by pasting over a name regularly placed upon the ballot a slip containing the name of a person not nominated by any party and then placing a cross in the appropriate blank opposite the name, while irregular, is not illegal, and the ballot properly may be counted as a vote for the person named on the slip. Ray v. Registrars of Voters of Ashland (221 Mass. 223), p. 155. Where such election was for choice of selectmen for a term of three years, the words "three years" placed after the name printed on the slip do not as a matter of law constitute a mark upon the ballot by which it may be identified, as described in St. 1913, c. 835, sec. 295, nor render the ballot invalid. Ibid. Such a ballot properly may be counted for the man whose name appears upon the paster, although only the capital letters that begin his Christian and sur- name and his middle initial are printed in type conforming to the requirements of St. 1913, c. 835, sees. 280, 258, 261, as to size and character of the letters. Ibid. PLEADING. A count for a conspiracy to procure illegal voting and account for aiding and abetting illegal voting are for offences similar in their nature, mode of trial and punishment, and may be joined in one indictment at common law. Common- wealth v. Rogers (181 Mass. 184), p. 99. PRACTICE, CIVIL. Objection to Jurisdiction. In an election petition brought under St. 1914, c. 783, sec. 10, charging a violation of the provisions of the corrupt practices act, a plea in abatement, setting up a defence that the subpoena had been made returnable in fifteen days instead of fourteen days after the filing of the petition, was held to be within the jurisdiction of the Superior Court, and not be open upon a petition for a writ of prohibition, filed a few days after the plea. Ashley v. Three Jus- tices of Superior Court (228 Mass. 63) , p. 194. PROHIBITION, WRIT OF. A writ of prohibition will not be issued to correct errors or irregularities of a tribunal that is acting within its jurisdiction, and can be invoked only to pre- vent such tribunal from exercising a jurisdiction that it does not possess. Ashley v. Three Justices of Superior Court (228 Mass. 63), p. 194. In an election petition brought under St. 1914, c. 783, sec. 10, charging a violation of the provisions of the corrupt practices act, a plea in abatement, setting up a defence that the subpoena had been made returnable in fifteen days instead of fourteen days after the filing of the petition, was held to be within the jurisdiction of the Superior Court, and not to be open upon a petition for writ of prohibition, filed a few days after the plea. Ibid. INDEX DIGEST. 237 RECOUNT OF VOTES. Where in case of the election of a chief engineer by a fire district under R. L. c. 32, sec. 54, there is no provision for a recount, the original count is final. In such a case the clerk should destroy the ballots, and, if illegally he preserves them, they cannot be used to invalidate the election. Fritz v. Crean (182 Mass. 433), p. 109. Under R. L. c. 11, sees. 266, 267, except in towns where the official ballot is used or where the officers are "voted for on one ballot," there can be no re- count of the votes cast for an officer of the town after the result of the election has been announced and recorded and the meeting has been adjourned. Eldridge v. Selectmen of Chatham (192 Mass. 409), p. 129. As proceedings for a recount of votes are strictly statutory, they are of no effect unless they are authorized by statute and begun and conducted as the statute provides. Ibid. By House of Representatives. The House of Representatives will exercise the right to recount the ballots in a contested election of a representative, upon satisfactory preliminary proof of such substantial facts or well-grounded suspicion as would induce strong conviction that fraud or mistake prejudicial to the contestant might appear from such examination. Lambert v. Forrestall (House, 1907), p. 32. Where a candidate was declared elected by one vote at a recount, the close- ness of the vote, evidence that the recount was conducted in an irregular manner, that the tally sheets were loosely handled, that the result of the tabu- lation was prematurely announced, that outsiders were permitted to verify the tabulation, and had access to the tally sheets, thereby affording an oppor- tunity for fraud and mistake, — taken collectively will warrant the House of Representatives in recounting the ballots. Dennett v. Sullivan (House, 1910), p. 40. Where there is evidence that a mistake has been made in a recount in deter- mining the result of a vote for representative the House of Representatives will recount the ballots. Moore v. Booth (House, 1910), p. 35. The House of Representatives will not recount the ballots in a district, where the petitioner has not availed himself of his statutory rights in respect to a recount, unless he was prevented from doing so by the fraud of his opponent or by some cause beyond his control. Ibid. Where, upon a recount of votes by the registrars of voters, they refuse or neglect to make and sign the returns and statements required by law and to declare the result of the recount, the House will order the ballots recounted in order to ascertain who is elected. Naphen v. Brennan (House, 1914), p. 53. Where an election for representative has been declared a tie the House will order the ballots counted. Whitney v. Cobb (House, 1915), p. 56. The mere closeness of the vote does not in and of itself justify a recount by the House of Representatives. Newell v. Coffin (House, 1903), p. 15. A change in the vote of one part of a district by a recount, in the absence of evidence of fraud or mistake, cannot be used to discredit the accuracy of the count of election of officials in other parts of the district. Ibid. Where the vote in the district is close and a recount has been refused by the registrars of voters on account of a formal defect in the petition for a recount, though the petition was signed by the requisite number of voters, filed within the time required by law, and notice that the recount would be held had been sent to the petitioner by the registrars, the House of Representatives will recount the vote. Ibid. 238 INDEX DIGEST. REGISTRARS OF VOTERS. The State convention of the Democratic party, held in the autumn of 1907, for the purpose of placing in nomination candidates for State officers to be voted for at the next annual election, divided into two factions, one of which nomi- nated one B. for Governor, while the other nominated one W. Each faction claimed the party designation, and, under St. 1907, c. 560, sees. 171, 175, 176, filed with the Secretary of the Commonwealth a ticket designated "Demo- cratic," and, each objecting to the ticket filed by the other, the dispute was referred under section 179 of that statute to the State Ballot Law Commission. It becoming apparent that the decision of the commission would be so delayed that, after its rendition, the defeated faction would be unable to file nomi- nation papers under section 177, both factions filed such papers, each placing in nomination the persons upon the ticket nominated by its convention. The nomination paper containing W. as a candidate for Governor was designated "Democratic citizens." After the time within which nomination papers must be filed under section 177, and the time within which they might be withdrawn under section 180, the commission decided that the ticket headed by W. as a candidate for Governor was entitled to the designation " Democratic. " On the ballot at the State election, W. therefore appeared as a candidate for Governor under the designations "Democratic" and "Democratic citizens, nomination paper." At that election, a candidate designated "Republican" received the highest number of votes, and a candidate designated "Independence League" received more votes than were cast for W. under the designation "Demo- cratic," but less than the total number cast for W. under both the designations "Democratic" and "Democratic citizens." A member of the party designated "Democratic," as representative of one of the two leading political parties, was appointed a member of the board of registrars of voters of a city under section 27 of the statute mentioned above, which provides that such members shall be so appointed that they shall repre- sent, as equally as may be, the "two leading political parties," and an informa- tion by the Attorney-General, at the relation of members of the party desig- nated "Independence League," in the nature of a quo warranto, was filed to try the title of the appointee to his office. Held, that under the circumstances the votes cast for W. under the designation "Democratic citizens, nomination paper," were votes belonging to the party designated "Democratic," and therefore that the respondent was entitled to his office, since he was a member of the " democratic " party, which was one of the " two leading political parties" under section 1 of the statute. Attorney-General v. McOsker (198 Mass. 340), p. 142. RETURN OF VOTES, RECORD. The provision of R. L. c. 11, sec. 267, relating to recounts of ballots cast at a city or town election, that "the records so amended shall stand as the true records of the election," does not take away the jurisdiction of the Supreme Judicial Court to correct errors of law appearing on the face of the record. Flanders v. Roberts (182 Mass. 524), p. 113. SELECTMEN. Under St. 1898, c. 548, sees. 335, 336, 361, a town, which has adopted the use of official ballots for the election of town officers, may, at a meeting held more than thirty days before the next annual meeting, vote to abandon the method of electing selectmen provided by section 335, theretofore adopted by the town, and return to its former method of electing annually three selectmen to serve for one year. Attorney-General v. Hutchinson (185 Mass. 85), p. 119. INDEX DIGEST. 239 SUPERIOR COURT. Under St. 1914, c. 783, sec. 10 (c) an assignment of three judges who are to hear and determine all matters arising under election petitions during the year, including a petition already filed, made by the chief justice nearly three months after the last annual state election on the day following the granting of an order that there was reasonable cause to believe that a corrupt practice had been committed, was held to be a valid assignment. Ashley v. Three Justices of Superior Court (228 Mass. 63), p. 194. In an election petition brought under St. 1914, c. 783, sec. 10, charging a violation of the provisions of the corrupt practices act, a plea in abatement, setting up a defence that the subpoena had been made returnable in fifteen days instead of fourteen days after the filing of the petition, was held to be within the jurisdiction of the Superior Court, and not to be open upon a petition for a writ of prohibition, filed a few days after the plea. Ibid. SUPREME JUDICIAL COURT. Upon a report by a single justice who heard a petition for a writ of man- damus, which is a proceeding at law, this court has no jurisdiction to change or reverse a decision as to the facts made by the single justice who heard the case unless the finding of fact is not warranted by the evidence. Mansfield v. Secretary of the Commonwealth (228 Mass. 262), p. 213. TOWN CLERK. If a town clerk fails to record the number of votes cast at an election, where such a record is required, this does not invalidate the election. In such a case, the clerk has power, and it would be his duty, to amend the record and state the facts. Wheeler v. Carter (180 Mass. 382), p. 87. St. 1898, c. 548, sec. 373, providing for the punishment of a city or town clerk who fails to make a record of the votes cast at an election, does not apply to the record of the election of town officers at a general meeting of the in- habitants of a town. Ibid. TOWN MEETING. An article in the warrant of a town meeting was "to choose all necessary town officers for the ensuing year." The town had accepted St. 1898, c. 548, sec. 335, which required that the selectmen should be elected for a term of three years. Held, that the article was sufficient ; that to choose officers for the ensuing year was to choose them according to the law in force. Ibid. VOTER. A voter and taxpayer of town may petition for mandamus, ordering regis- trars of voters not to count imperfectly marked ballot in recount. Brewster v. Sherman (195 Mass. 222), p. 132. Ballot held to have been marked so imperfectly that voter's choice could not be determined. Ibid. VOTING MACHINE. The provisions of the Constitution requiring that representatives to the General Court shall be "chosen by written votes," those which by implication require that other State officers shall be chosen in the same way, and those in regard to the sorting and counting of votes in such elections, cannot be com- plied with by the use of a voting machine which does not indicate the choice 240 INDEX DIGEST. VOTING MACHINE — Concluded. of the voter by some kind of writing upon a paper or other material thing which in his sight shall pass from his control to that of the officers charged with the duty of conducting the election, and which with the other written votes cast in the election shall continue to be the same material things capable of being handled, sorted and counted. Nichols v. Election Commissioners (196 Mass. 410), p. 136. Under our constitution a voting machine which does not indicate choice of votes by some kind of writing upon a material thing capable of being handled, counted or preserved cannot be used in State elections. Ibid. k R 1 9 BOOKBIUOiNGCG.JNC. MAY 6 \W\ 100 CAMBRIDGE STREET CHARLESTOWN, MASS