Home ANTHONY GALLUCCIO vs. ELECTION COMMISSIONERS OF CAMBRIDGE.

339 Mass. 587

October 9, 1959 - October 14, 1959

Middlesex County

Present: WILKINS, C.J., RONAN, SPALDING, WILLIAMS, & WHITTEMORE, JJ.

The provision of G. L. c. 54, Section 41, as amended through St. 1955, c. 256, requiring that on the ballots in city elections the words "Candidate for Re-election" be added to the name of a candidate for an office of which he is an elected incumbent is applicable in Cambridge having a Plan E charter with election of candidates by proportional representation.

PETITION for a writ of mandamus filed in the Superior Court on September 24, 1959.

The case was heard by R. Sullivan, J.

Richard D. Gerould, City Solicitor, for the respondents.

Charles H. McGlue, for the petitioner.


WILKINS, C.J. The petitioner is a candidate for reelection to the school committee of the city of Cambridge in the coming election. By this petition for a writ of mandamus he seeks an order that the respondent board of election commissioners of the city print the ballots with the words "Candidate for Re-election" after the names of the incumbent councillors and incumbent members of the school committee. An order was entered directing that the writ issue, and the respondent board appealed. G. L. c. 213, Section 1D, inserted by St. 1943, c. 374, Section 4, as amended by St. 1957, c. 155.

General Laws c. 54, Section 41, as amended through St. 1955, c. 256, provides in part, "To the name of a candidate for a state or city office who is an elected incumbent thereof there shall be added in the same space the words `Candidate

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for Re-election.'" [Note 1] The respondent board contends that the provisions of the Plan E charter which in Cambridge call for the election of candidates by proportional representation are such that Section 41 is inconsistent and, therefore, inapplicable.

Plan E was introduced into G. L. c. 43, as Sections 93-116, by St. 1938, c. 378, Section 15. It is unnecessary for present purposes to recount amendments. See Mayor of Gloucester v. City Clerk of Gloucester, 327 Mass. 460 , 462-463. Section 116 reads, "Except as otherwise provided in this chapter, all regular elections held under this plan shall be subject to all general laws relating to elections and corrupt practices, so far as applicable and not inconsistent with this chapter."

More particularly, the respondent board's contention is that c. 54, Section 41, is inconsistent with the intent of the Cambridge charter to secure to each candidate the greatest possible equality on the ballot. See Moore v. Election Commrs. of Cambridge, 309 Mass. 303 , 320-321. We shall enumerate the statutory provisions upon which the board relies.

(1) In the form of nomination papers under Plan E, there is no provision for a declaration that a candidate is a candidate for re¬Člection. G. L. c. 43, Section 110. There is such a provision in the general statute relating to the nomination of candidates for town office. G. L. c. 53, Section 8, as amended through St. 1957, c. 278, Section 1.

(2) Under Plan E the form and contents of ballots are regulated by c. 43, Section 112, which provides in part, "There shall be a separate form of ballot for each body to be elected, and each such separate form of ballot shall be of a different and clearly distinguishable color from that of any other form of ballot prepared and furnished at the public expense for use at the same election. . . . No official ballot used at any regular municipal election shall have printed thereon any party or political designation or mark, and there shall

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not be appended to the name of any candidate any such party or political designation or mark, or anything showing how he was nominated or indicating his views or opinions." In c. 54, Section 41, immediately previous to the sentence upon which the petitioner relies there is this sentence: "To the name of each candidate for a state or city office, except city offices in cities where political designations are forbidden, shall be added in the same space his party or political designation or designations."

(3) The form and contents of ballots are further regulated by G. L. c. 54A, Section 5, inserted by St. 1938, c. 341, Section 1, which provides in part: "Ballots used in elections to such a body or office by proportional representation or preferential voting shall be printed in as many lots as there are candidates for election thereto. In the first lot the names of the candidates shall appear in the alphabetical order of their surnames. In the second lot the names shall appear in the same order except that the first name in the first lot shall be placed last. In each succeeding lot the order shall be the same as that of the lot preceding, except that the first name in that preceding lot shall be placed last. Sets of ballots to be used at the several polling places shall be made up by combining ballots from the different lots in regular rotation, so that no two successive voters shall receive ballots from the same lot, and so that each candidate's name shall appear first and in each other position substantially the same number of times on the ballots used." The general provisions relating to elections give elected incumbents positions at the top of the ballot. G. L. c. 54, Section 42, as amended through St. 1953, c. 432.

We cannot accept the contentions of the respondent board. The broad language of c. 54, Section 41, is of general application and contains no exception. The provisions of Plan E and of the statute relating to proportional representation or representative voting relied upon by the board and outlined above do not amount to an inconsistency rendering the provision in question of c. 54, Section 41, inapplicable to Cambridge.

Order for judgment affirmed.


FOOTNOTES

[Note 1] Prior to St. 1955, c. 256, this sentence read, "To the name of a candidate for a state or city office who is an elected incumbent thereof [and who is one of two or more candidates therefor bearing the same or a similar surname,] there shall be added in the same space the words `Candidate for Re-election.'" The words in brackets were struck out by c. 256.