Home CHARLES L. MANSER vs. SECRETARY OF THE COMMONWEALTH.

301 Mass. 264

October 7, 1938 - October 10, 1938

Suffolk County

Present: FIELD, C.J., DONAHUE, LUMMUS, QUA, & DOLAN, JJ.

The time within which one nominated as a candidate for a State office by nomination papers may withdraw his name from nomination is governed by G. L. (Ter. Ed.) c. 53, Section 13, as amended by St. 1937, c. 26; c. 77, Section 4.

PETITION filed in the Supreme Judicial Court for the county of Suffolk on October 4, 1938, for a writ of mandamus.

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The case was reserved for the full court by Cox, J.

R. S. Wilkins, (J. L. Hurley with him,) for the petitioner.

E. O. Proctor, Assistant Attorney General, for the respondent.


FIELD, C.J. This is a petition for a writ of mandamus. The respondent is the Secretary of the Commonwealth. The petitioner has filed with the respondent nomination papers as a candidate for Governor of the Commonwealth to be voted for at the next State election. On or before September 26, 1938, he attempted to file with the respondent a request for the withdrawal of his name from such nomination. The respondent refused, and still refuses, to accept such withdrawal, and intends to cause the ballots for said State election to be printed showing the petitioner as a candidate for Governor. The petitioner prays that a writ of mandamus issue commanding the respondent "to receive the said withdrawal and to treat said withdrawal as legal and effective, and further commanding the respondent to omit the petitioner's name as a candidate for the office of Governor of the Commonwealth in the printing of the ballots for the election." The case was heard by a single justice of this court who, at the request of the parties, reserved it without decision "upon all questions of law raised by the petition, answer, the traverse of the petitioner, and the agreed statement of facts" for the determination of the full court. See G. L. (Ter. Ed.) c. 211, Section 6; c. 231, Section 111; Campbell v. Justices of the Superior Court, 187 Mass. 509 , 510.

It is the duty of the respondent to prepare ballots for use at the State election, G. L. (Ter. Ed.) c. 54, Section 40, and this duty includes placing the petitioner's name upon the ballot as a candidate for Governor or omitting it therefrom as the law may require. The respondent makes no contention that mandamus is not a proper remedy to compel him to perform his duty in this respect, that the petitioner is not a proper party to bring a petition for a writ of mandamus to compel such performance, or that the petition in this case is not adequate in form. See Prescott v. Secretary of the Commonwealth, 299 Mass. 191 ; Bigney v. Secretary

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of the Commonwealth, ante, 107. Furthermore, it is not contended that the petitioner's request for the withdrawal of his name from nomination is not in proper form. The sole question argued is whether, in view of the time when the petitioner's request for withdrawal was made, the respondent, as matter of law, is required to receive the withdrawal and to omit the petitioner's name from the ballot as a candidate for Governor.

It is clear that, if the petitioner's right to withdraw his name from nomination is governed by G. L. (Ter. Ed.) c. 53, Section 13, as amended by St. 1937, c. 26, and St. 1937, c. 77, Section 4, his request for withdrawal was not made seasonably and the respondent was prohibited from receiving it. Material provisions of this section are as follows: "A person nominated as a candidate for any state, city or town office may withdraw his name from nomination by a request signed and duly acknowledged by him, and filed with the officer with whom the nomination was filed, within the time prescribed by section eleven for filing objections to certificates of nomination and nomination papers and no such requests for withdrawals shall be received after such time has expired." The time fixed by this section for withdrawal of a name from nomination for a State office expired on August 5, 1938. See G. L. (Ter. Ed.) c. 53, Section 10, as amended by St. 1938, c. 373, Section 4; Section 11, as amended by St. 1937, c. 212, Section 1; G. L. (Ter. Ed.) c. 54, Section 62, as amended by St. 1935, c. 257, Section 5. It does not appear that the petitioner's attempt to file a request for withdrawal was made before September 26, 1938.

The petitioner contends that his right to withdraw his name from nomination is not governed by G. L. (Ter. Ed.) c. 53, Section 13, as amended, for the reason that this section is not applicable to a person nominated as a candidate for a State office by nomination papers. This contention cannot be sustained.

G. L. (Ter. Ed.) c. 53, Section 13, as amended, purports to authorize a "person nominated as a candidate for any state . . . office" to withdraw his name from nomination in the manner and within the time stated. The phrase

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quoted is broad enough to include any person nominated, regardless of the manner in which he was nominated -- even a person nominated at the State primary. But G. L. (Ter. Ed.) c. 53, Section 53A, makes a specific provision for withdrawal by a person nominated at the State primary which is inconsistent with the provision of Section 13, and such specific provision necessarily controls the general provision of Section 13. For this reason, if not for others, persons nominated as candidates at the State primary are excluded from the application of Section 13.

There is, however, no specific provision for withdrawal by a person nominated for a State office by nomination papers, apart from Section 13, which, as in the case of a person nominated at the State primary, would exclude a person nominated by nomination papers from the application of this section, and the phrase therein "A person nominated as a candidate for any state . . . office" naturally includes a person nominated by nomination papers. Indeed there is nothing in the terms of Section 13 indicating that it is not as fully applicable to persons nominated by nomination papers as to those whose nominations are evidenced or made effective by certificates of nomination. (The latter class of persons does not include persons nominated at a State primary, but obviously does include persons nominated at conventions of parties which are not political parties. See G. L. [Ter. Ed.] c. 53, Sections 1, 2, 4, 5, 8, 10, and various amendments. See St. 1938, c. 373, Section 4. Whether this class includes also any person nominated under G. L. [Ter. Ed.] c. 53, Section 14, to fill a vacancy we need not inquire.) On the other hand, the fact that Section 13 fixes the time within which withdrawals must be made by reference to Section 11, which fixes the time for filing objections, not only to certificates of nomination but also to nomination papers, is an indication that the provisions of Section 13, like those of Section 11, extend to persons nominated by nomination papers. Moreover, an interpretation of Section 13 as inapplicable to persons nominated by nomination papers would leave such persons without any express provision for withdrawal -- a result not lightly to be attributed to statutes of such

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comprehensive nature as those relating to elections. And it would leave only a narrow field for the operation of Section 13. But an interpretation of Section 13 as including within its scope, in accordance with its natural meaning, persons nominated by nomination papers results in a uniform application to all nominations for State offices of the principle that the right of withdrawal does not extend beyond the time fixed for filing objections to nominations. See G. L. (Ter. Ed.) c. 53, Section 53A. Finally, Section 13, as here interpreted, is not even remotely in conflict with any other statutory provision.

Ever since provision was first made for the use of official ballots at State elections by St. 1888, c. 436, the statutes have provided for the nomination of candidates for State offices by nomination papers and for withdrawals from nomination. The provision first made for withdrawals applied in terms to "Any person whose name has been presented as a candidate" and permitted withdrawals up to ten days previous to the day of election. See St. 1888, c. 436, Section 8; St. 1889, c. 413, Section 8. This provision clearly applied to persons nominated by nomination papers. By St. 1890, c. 436, Section 9, however, it was provided that "Objections to certificates of nomination and to nomination papers, and withdrawals by candidates from nomination, shall, under said chapter four hundred and thirteen, be made within the seventy-two hours succeeding the last day fixed for the filing of such nomination papers." And by St. 1893, c. 417, Section 84, the provision for withdrawal was in terms made applicable to a person "nominated as a candidate for any state . . . office in accordance with the provisions of this title" -- a title which included provisions for nomination by nomination papers. See Title III, Section 77. The conclusion seems inescapable, that these statutes provided for the withdrawal from nomination of persons nominated by nomination papers. And none of the statutory changes which have culminated in G. L. (Ter. Ed.) c. 53, Section 13, in its present form discloses any intention on the part of the Legislature to change the law in this respect.

It cannot rightly be said that the change in the statute by which the time for withdrawal was much restricted,

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see St. 1890, c. 436, Section 9, see now G. L. (Ter. Ed.) c. 53, Section 13, shows that the statute which is now G. L. (Ter. Ed.) c. 53, Section 13, was not intended to apply to withdrawals by persons nominated by nomination papers, for the reason that the change was made in order that there might be sufficient time for filling vacancies caused by withdrawals and that no provision has ever been made for the substitution of another candidate for a candidate nominated by nomination papers who has withdrawn. See G. L. (Ter. Ed.) c. 53, Section 14. It is to be observed that the change of time for withdrawals was made (St. 1890, c. 436, Section 9) before there was any statutory provision for filling any vacancies caused by withdrawal. St. 1890, c. 436, Section 4; St. 1891, c. 278. We do not discuss the soundness of the premise that there is no statutory provision for substituting a candidate for a candidate nominated by nomination papers who has withdrawn, or enter upon a detailed analysis of the section of the statute (now G. L. [Ter. Ed.] c. 53, Section 14) providing for filling vacancies caused by withdrawals. In any event, the little additional time provided in some circumstances by that section, and the like sections in earlier statutes, for filling vacancies caused by withdrawals can hardly have been the sole ground for so narrowly limiting the time for withdrawals. We find nothing in that section, or in its history, which impliedly excludes persons nominated for State offices by nomination papers from the application of what is now G. L. (Ter. Ed.) c. 53, Section 13, as amended.

The petitioner's contention that G. L. (Ter. Ed.) c. 53, Section 13, is inapplicable to a person nominated by nomination papers rests in part upon arguments from its apparent purpose and from public policy. Those arguments have force only as they affect the interpretation of the section. Undoubtedly, as was said in Morrison v. Selectmen of Weymouth, 279 Mass. 486 , 492: "A statute as a whole ought, if possible, to be so construed as to make it an effectual piece of legislation in harmony with common sense and sound reason." But full recognition of this principle does not lead to an interpretation of Section 13 contrary to that here

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made upon an examination of its language in the light of the election laws as a whole, and of their history. The petitioner argues, in substance, that the name of a person who does not wish to be a candidate ought not to be placed upon the ballot, and that its presence there would tend to confuse the voters and interfere with a free expression of the popular will. See Blackmer v. Hildreth, 181 Mass. 29 , 31; Bordwell v. Williams, 173 Cal. 283, 287. The Legislature appears to have recognized the force of these considerations by providing expressly for withdrawals by persons however nominated. And it was for the Legislature to determine at what time, in the orderly conduct of elections, the right to withdraw should terminate. The limitation upon the time for withdrawal fixed by Section 13 is not so clearly unreasonable as applied to persons nominated by nomination papers that it is to be inferred that the Legislature did not intend this section to apply to such persons. Such an inference cannot rightly be drawn from the fact that the period before election day within which withdrawal cannot be made is longer than ordinarily would be required for printing the ballots. An argument on this ground for excluding persons nominated by nomination papers from the application of Section 13 would apply with almost as great force to persons whose nominations were evidenced or made effective by certificates of nomination and who undoubtedly are within the scope of Section 13. We cannot, however, rightly assume that the only actual or reasonable purpose of Section 13 was to insure ample time for printing the ballots.

The petitioner contends that Section 13 should not be interpreted as applying to persons nominated for State offices by nomination papers, because, under the section so interpreted, the time for withdrawal expires before the result of the State primary can be ascertained. Whether this is a desirable result was for the Legislature to determine. Opinions may differ. In any event this result is not so clearly unreasonable as to indicate that it was not intended by the Legislature. Similar considerations apply to the petitioner's contention that, since he "did not represent any political or other group, no harm would be occasioned

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to any one by allowing his name to be withdrawn." Neither the apparent purpose of Section 13 nor any ground of public policy warrants a departure from the natural interpretation of Section 13 that it applies to a person, in the position of the petitioner, who has been nominated for a State office by nomination papers.

The petitioner relies upon an opinion dated October 10, 1934, of the then Attorney General given to the Secretary of the Commonwealth interpreting G. L. (Ter. Ed.) c. 53, Section 13, in accordance with the petitioner's contention, and upon the fact that this section was thereafter amended by St. 1937, c. 26, and by St. 1937, c. 77, Section 4. This opinion was given after the statute, now said Section 13, had remained in substantially the same form for many years. See St. 1898, c. 548, Section 148. It "was the sole interpretation, judicial or administrative," of the section existing prior to September 23, 1938. It was not, so far as appears, made the basis of any long continued and well known administrative practice. The amendments of Section 13 made in 1937 did not touch the statutory words which are significant upon the question of construction now presented or amount to a legislative use of these words in the light of the opinion. The case does not fall within the authorities cited by the petitioner, where under different circumstances administrative construction and usage have been relied on in determining the meaning of a statute.

Petition dismissed.