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[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Person.] 4. Elections 239-Petitioner held to have been elected representative of General Court by plurality of votes susceptible of being counted.

the residue of his estate; she created a trust | ceased candidate was elected to office was asfund of her own, independent of that estab- serting impossibility; "persons," within statute, lished by her husband, though administered meaning living human beings. by the same persons, and distributed to the same persons and corporations. Her trust is a "referential" trust and is to be carried out as she directed "to the same persons or corporations, in the same manner, and according to the same terms" as her husband directed. Her trust was separate and distinct from the trust fund created by her husband. We therefore answer the first prayer of the petitioners, whether the residuary clause of Mrs. Estabrook's will constitutes a valid gift for the benefit of the corporations named in the will of her husband, in the affirmative.

[5] There is no necessity that the trust fund under Mrs. Estabrook's will should be transferred from her executors to themselves as trustees. As executors of her will they should pay and distribute the residue of her estate among the corporations named in the residuary clause of her husband's will, and in the same proportion as they take under his will. Bowditch v. Andrew, 8 Allen, 339; Sears v. Choate, 146 Mass. 395, 15 N. E. 786, 4 Am. St. Rep. 320.

The question of the admissibility of certain evidence offered we do not discuss, because, in our opinion, without considering this evidence the testatrix intended to refer to the existing will of her husband.

Costs between solicitor and client are to be in the discretion of the single justice. The executors of Mrs. Estabrook's will are instructed to distribute the residue of her estate to the same persons or corporations mentioned in the residuary clause of her husband's will, they to take in the same manner and according to the same terms as they take under the residuary clause of his will. Ordered accordingly.

MADDEN v. BOARD OF ELECTION
COM'RS OF CITY OF BOS-
TON et al.

(Supreme Judicial Court of Massachusetts.
Suffolk. Jan. 30, 1925.)

1. Elections 174-One dying before election cannot be candidate for office or elected thereto.

Where regular candidate for representative in General Court died day preceding election, and fact of death was generally known throughout district, and petitioner became candidate, all voters at polls being apprised of regular candidate's death, votes cast for latter were nullity and could not be counted, and petitioner, having received next largest number of votes susceptible of count, was duly elected. 5. Mandamus 74 (5)-Duty of election commissioners to issue certificate of election held ministerial, as distinguished from political.

The duties of boards of election commissioners, under G. L. c. 54, § 128, to certify election of candidates, is ministerial or administrative, as distinguished from political.

6. Mandamus 3(1)—Performance of ministerial duty compelled by mandamus.

It is function of mandamus to compel performance of ministerial duties by public officers, where no other remedy is provided. 7. Elections 43-Statute providing for new election held inapplicable, where complete election was held.

Duty of boards of election commissioners. under G. L. c. 54, § 141, where no. election has resulted, to certify such fact to secretary of commonwealth, in order that new election may be held, is inapplicable, where complete election was held.

8. Appeal and error 781 (4)-Certificate of election having genuine value to petitioner, question raised thereon was not moot.

In view of G. L. c. 3, § 4, providing that person having certificate or other evidence of election as representative may present certificate to presiding officer, who shall communicate it to House of Representatives for action thereon, question raised after organization of house, on failure of board of election commissioners to certify duly elected candidate, is not moot; certificate having real value to petitioner.

9. Constitutional law 70(1)-Granting mandamus to compel issuance of certificate of election held not invasive of rights of House of Representatives.

Where petitioner was entitled to certificate One who has died before election cannot be of election to General Court, mandamus requira candidate for or elected to office.

ing election commissioners to certify his election does not trench on prerogative vested ex

2. Elections 239-Valid votes cannot be cast clusively in House of Representatives by Const. for one no longer alive.

pt. 2, c. 1, § 3, art. 10, to be judge of returns, Valid votes for election to office cannot be elections, and qualifications of its own members. cast for one who is no longer alive.

3. Elections 2652-Certifying deceased as "person" elected held assertion of impossibility.

In view of G. L. c. 54, § 128, certification by board of election commissioners that de

10. Mandamus

74(5)-Issuance, of certificate of election compelled through mandamus. Where election commissioners failed to issue election certificate, to which petitioner was entitled, it was function of court to require performance of that duty through mandamus.

(146 N.E.)

Mandamus by William Madden against the Board of Election Commissioners of the City of Boston and others to compel respondents to certify petitioner's election to office. Peremptory writ to issue.

elected" as representatives to the General Court from the Fifteenth Suffolk district.

It is plain from these agreed facts that in general the voters of the district knew and those who went to the polls had in addition

A. D. Hill and F. Adams, both of Boston, specific notice that William A. Canty had for petitioner.

died on the day before election. He had ceased to exist before election day. He had vanished as a possible participant in human affairs.

[1, 2] One who has died before election cannot be a candidate for an office or elected to an office. Valid votes for election to an office cannot be cast for one who is no longer alive. It is equivalent to throwing away a vote knowingly to cast it for one who has It passed from earth to the great beyond. is of no more effect than to deposit a blank ballot, or one marked with a fictitious or historic name. This is not a doubtful question. It requires no discussion of legal principles. No process of reasoning is necessary It is not open to debate. It is obvious to to convince the intelligence. It is axiomatic.

everybody.

RUGG, C. J. This is a petition for a writ of mandamus to compel the respondents to certify the election of the petitioner to the office of a representative in the General Court for the Fifteenth Suffolk district. The case is submitted on agreed facts. They show that the voters of the Fifteenth Suffolk district were entitled at the election on November 4, 1924, to elect two representatives to the General Court. The names of William A. Canty and Joseph M. Ward and no others were printed on the official ballot, each name being followed by the word "Democratic." William A. Canty died early in the morning of the day before election. That fact was generally known throughout the district and notices of his death were prominently printed in the newspapers of that day. The specimen annexed to the record shows that there was headline announcement covering six of the eight columns of the first page of the newspaper and that an obituary filled more than one-fourth of a column of the first page, running onto a later page. On election day stickers carrying the name of the petitioner were distributed. He was a member of the Democratic party and was generally known to be such by the voters and residents of said district. The supporters of the petitioner, knowing that the name of William A. Canty was still on the official ballot and for the purpose of making certain that no votes should be cast for him in ignorance of the fact that he was not living, stationed two persons near each of the 11 polling places in the district. These persons were instructed to inform each voter approaching the polling booth of the fact that William A. Canty had died. These persons would testify, that each voter going to the polls was so informed. The result of the balloting was that 5,317 votes were cast for Joseph M. Ward, 2,942 votes for William A. Canty, 1,165 votes for the petitioner, and a much smaller number of votes for several others. The petitioner, who contends that Joseph M. Ward and himself were elected representatives, caused the respondents to be notified of the fact that William A. Canty died on November 3, 1924, the day before election. The respondents, knowing of the fact of Mr. Canty's death, refused to certify that the petitioner was elected, but did file a certificate with the secretary of the commonwealth to the effect that at the election on the 4th day of November, 1924, "William can be elected, two are voted for, and their A. Canty, 430 Centre St., Boston, and Jos- names appear together on the ballot, the ballot eph M. Ward, 38 School St., Boston, were so far is lost. The votes are as if for a dead

[3] It is equally plain that the respondents were doing a vain thing and asserting an impossibility in certifying that William A. Canty was elected to the office of representative in the General Court. They were required to make a certificate to the secretary of the commonwealth of "election of the persons appearing to be elected." G. L. c. 54, § 128. The word "persons" means living hu269, 21 N. E. 307. man beings. Sawyer v. Mackie, 149 Mass. to have stated in their certificate to the secThe respondents ought

retary the fact as to the decease of Mr. Can-
it indisputably to be.
ty before the day of election as they knew

for the second representative from the Fif-
[4] The question is whether the election
teenth Suffolk district was a nullity or
whether the petitioner was elected. It was
said in the opinion in People ex rel. Furman
v. Clute, 50 N. Y. 451, 461 (10 Am. Rep. 508):

"It is the theory and the general practice of our government that the candidate who has but a minority of the legal votes cast does not betheory and practice of our government, that a come a duly elected officer. But it is also the minority of the whole body of qualified electors may elect to an office, when a majority of that body refuse or decline to vote for any one for that office. Those of them who are absent from the polls, in theory and practical result are assumed to assent to the action of those who go who do not vote for any candidate for an ofto the polls; and those who go to the polls, and fice, are bound by the result of the action of those who do; and those who go to the polls and who vote for a person for an office, if for any valid reason their votes are as if no votes, they also are bound by the result of the action of those whose votes are valid and of effect. As if, in voting for an office to which one only

man or for no man. They are thrown away; and those who cast them are to be held as intending to throw them away, and not to vote for any person capable of the office. And then he who receives the highest number of earnest valid ballots, is the one chosen to the office. ** They who, knowing that a person is ineligible to office by reason of any disqualification, persistently give their ballots for him, do throw away their votes, and are to be held as meaning not to vote for any one for that of

*

fice.

At page 466:

second largest number of votes cast for any candidate capable of being voted for. He was elected by a plurality of the votes susceptible of being counted under the law. Article 14 of Amendments to the Constitution. Any other conclusion might inconceivable circumstances enable a cohesive and perverse minority to work much mischief with elections. This conclusion is supported directly by the well reasoned cases of State ex rel. Bancroft v. Frear, 144 Wis. 79, 128 N. W. 1068, 140 Am. St. Rep. 992, and Gulick v. New, 14 Ind. 93, 77 Am. Dec. 49, and by the principle of People ex rel. Furman v. Clute, 50 N. Y. 451, 10 Am. Rep. 508, already cited, and of Gosling v. Veley, 7 Q. B. 406; Reg. v. Coaks, 3 El. & Bl. 249; Drinkwater v. Deak

"We think that the rule is this: the existence of the fact which disqualifies, and of the law which makes that fact operate to disqualify, must be brought home so closely and so clearly to the knowledge or notice of the elector, as that to give his vote therewith indicates an in-in, L. R. 9 C. P. 626; Beresford-Hope v. tent to waste it."

Lady Sandhurst, 23 Q. B. D. 79; State ex rel. Clawson v. Bell, 169 Ind. 61, 82 N. E. 69, 13 L. R. A. (N. S.) 1013, 124 Am. St. Rep. 203 and cases there reviewed. See 9 R. C. L. 1126, and cases there collected. It is contrary to the principle of Sheridan v. St. Louis, 183 Mo. 25, 81 S. W. 1082, 2 Ann. Cas. 480 which relies in part on State v. Walsh, 7 Mo. App. 142.

There are numerous decisions, where a candidate has been ineligible, or has died late on election day, and the voters did not appear to have exact knowledge as to the disqualifying facts, in which the election has been declared void, and the candidate receiving the next largest number of votes has been denied election, We express no opinion upon such facts. The present decision is of course confined to the issues presented upon this record. In some of those decisions somewhat broad language has been used. But the facts of all those cases are so different from those in the case at bar that it is not necessary to review them. They are collected in a foot note. 1

This is a succinct and clear statement of the law. Amplification will not elucidate it. It is precisely applicable to the facts here disclosed. It is agreed that the death of Mr. Canty on November 3, 1924, was on that day generally brought home to the knowledge of the voters of the Fifteenth Suffolk district. That is a district in the city of Boston, where numerous daily papers are printed and widely circulated. The attention of every voter who went to the polls on election day was directed specifically to the fact of the death of Mr. Canty. Therefore there is no room for doubt that the votes nominally cast for Mr. Canty were deposited in the ballot box with the knowledge that he had died the day before the election day. The motives of those who thus cast ballots are not revealed on this record. We assume that they were unexceptional as humane sentiments. It may have been done as a tribute of respect to his memory or as some expression of sorrow for his decease. Elections are not held for any such purpose. Purity of motive cannot clothe with vitality an act which is in its very nature a nullity. Elec-ents. tions are held at great public expense for the single purpose of selecting those who are to hold public office and of enabling voters to express their preference as to questions concerning government lawfully placed upon the ballot. Those who attempt to use the machinery of election to any other end, whatever it may be, are acting contrary to the whole theory of elections. They cannot complain if those who resort to the polls and act in conformity to the theory and right practice of elections accomplish the aim of the election by choosing the officers required by law to be chosen.

No one would contend, if the votes cast for Mr. Canty had been blank ballots or had contained three names for representative properly marked, two only being capable of election, that the petitioner would not have been elected. The same result follows on the facts here disclosed. The petitioner received the

[5, 6] It is apparent that all the pertinent facts were seasonably known to the respond

Since the votes cast for William A. Canty must be treated as nullities, consciously deposited as such by the voters who put them in the ballot box, the petitioner, having received the next largest number of votes, was elected, together with Mr. Ward.

It

1 Chandler v. Wartman, 6 N. J. Law, J. 301; Sublett v. Bedwell, 47 Miss. 266, 12 Am. Rep. 338; Crawford v. Molitor, 23 Mich. 341; Gardner v. Burke, 61 Neb. 534, 85 N. W. 541; Haggard v. People, 130 Ill App. 211; Fish v. Collens, 21 La. Ann. 289; McKeever v. Cameron, 179 Wis. 405, 192 N. W. 374; Commonwealth v. Cluley, 56 Pa. 270, 94 Am. Dec. 75; Heald v. Payson, 110 Me. 204, 85 A. 576; Sanders

v. Rice, 41 R. I. 127, 102 A. 914, L. R. A. 1918C, 1153; Heney v. Jordan, 179 Cal. 24, 175 P. 402; Swepston v. Barton, 39 Ark. 549; Dryden v. Swinburne, 20 W. Va. 89; State v. McGeary, 69 Vt. 461, 38 A. 165, 44 L. R. A. 446; Dobbs v. Buford, 128 Ga. 483, 57 S. E. 777, 11 Ann. Cas. 117; Batterton v. Fuller, 6 S. D. 257, 60 N. W. 1071; Woll v. Jensen, 36 N. D. 250, 162 N. W. 403, Ann. Cas. 1918B, 982; Barnum v. Gilman, 27 Minn. 466, 8 N. W. 375, 38 Am. Rep. 304. See Bowker et al., Petitioners, Loring & Russell Election Cases in Massachusetts, 282, and note, page 285.

(146 N.E.)

[9, 10] The decision of this case affects merely the right of the petitioner to the certificate. This adjudication does not trench in any degree upon the constitutional prerogative vested exclusively in the House of Representatives by part 2, c. 1, § 3, art. 10, of the Constitution to be the "judge of the returns, elections, and qualifications of its own members." There can be no invasion of that field. Dinan v. Swig, 223 Mass. 516, 112 N. E. 91. But the petitioner is entitled to the certificate of election on the facts here disclosed. The respondents in the exercise of the statutory duty imposed on them ought to certify to that election. It is the

follows that it was the duty of the respondents under G. L. c. 54, § 128, to certify the election of the petitioner as one of the representatives to the General Court from the Fifteenth Suffolk district. In view of the facts known by the respondents, it was their ministerial duty to issue the certificate. It is an appropriate function of the writ of mandamus to compel the performance of ministerial duties by public officers where no other remedy is provided. Flanders v. Roberts, 182 Mass. 524, 529, 530, 65 N. E. 902; Brewster v. Sherman, 195 Mass. 222, 225, 80 N. E. 821, 11 Ann. Cas. 417; Attorney General v. Apportionment Commissioners, 224 Mass. 598, 609, 610, 113 N. E. 581; Mansfield v. Sec-function of the court through the writ of retary of the Commonwealth, 228 Mass. 262, 117 N. E. 311; Andrews v. Board of Registrars of Voters, 246 Mass. 572, 574, 141 N. E. 507. The duty of the respondents upon the facts found was ministerial or administrative, as distinguished from political. decisions like Fitzgerald v. Mayor of Boston, 220 Mass. 503, 108 N. E. 355, are inapposite.

Hence

[7] If no election had resulted on the 4th of November, it would have been the duty of the respondents so to certify to the secretary of the commonwealth, in order that a new election might have been held on the 4th Monday of November. G. L. c. 54, § 141. This provision of law is inapplicable because, as already shown, a complete election was held.

[8] The House of Representatives of the General Court had already assembled and organized before this case was argued. It is not, however, too late for the issuance of a proper certificate to the petitioner. This is not an instance of the possibility of two outstanding certificates held by different persons. In no right sense has a certificate issued to William A. Canty. The act of the respondents in going through the form of issuing such certificate was an utter nullity. Of course there was no delivery of it to him. It is provided by G. L. c. 3, § 4, that:

"A person having a certificate or other documentary evidence of his election as a representative who is not named on said lists may, after the house has been called to order, present such certificate or evidence to the presiding officer, or to the speaker if one has been chosen, who shall communicate the same to the House for its action thereon; but such person shall not take a seat as a member until permitted by the

House."

The manifest purpose of this provision is to permit an elected member to present a certificate of election after the organization of the House, if for any reason he did not receive it earlier. Therefore the case at bar is not moot; it is real. The certificate has a genuine value now to the petitioner.

mandamus to require the performance of that duty. We go no further than that. Peremptory writ of mandamus to issue as prayed for.

PORTAGE MARKETS CO. v. GEORGE. (No. 18480.).

(Supreme Court of Ohio. Dec. 23, 1924.)

(Syllabus by the Court.)

1. Appeal and error 1001 (1)— Requested special verdict, supported by evidence, not set aside.

A special verdict, returned at the request of a party upon issues joined in a civil action, will not be set aside, where there is competent evidence to sustain the same.

2. Food 25-Violation of food law by sale of unwholesome meat negligence per se.

The violation of the pure food laws of this state by the sale of unwholesome meat is negligence per se, and may be the basis of recovery for damages by the user of said unwholesome meat, who suffers injury proximately resulting therefrom, provided the user is not himself guilty of negligence in the care, preparation, cooking, or in any other manner which contributes directly to his injury. Allen v. Marvin, Adm'r, 64 Ohio St. 608, 61 N. E. 1139, 46 W. L. B. 208, and Schell v. DuBois, Adm'r, 94 Ohio St. 93, 113 N. E. 664, approved and followed.

3. Food 25-Intent to violate food law and knowledge of unwholesomeness immaterial.

In an action for damages against a retail meat vendor, growing out of the sale of unwholesome veal in violation of the pure food laws of this state, it is not error for the court to charge the jury: "Whether or not the defendant intended to violate the law does not make any difference. Whether the defendant or its servant knew that the veal was unwholesome, if it was unwholesome at the time it was sold, makes no difference. Lack of intent to violate the law is no defense to the defendant. The defendant's ignorance of the condition of the veal at the time it was sold is no defense."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Error to Court of Appeals, Summit County. Action by Charles E. George, a minor, by Mollie George, his mother and next friend, against the Portage Markets Company. Judgment for plaintiff was affirmed by the Court of Appeals, and defendant brings error. Affirmed.-[By Editorial Staff.]

The original action upon which this proceeding in error is based was begun in the court of common pleas of Summit county by Charles E. George, a minor, by Mollie George, his mother and next friend, against the Portage Markets Company.

The defendant in error, plaintiff in the court of common pleas, Charles George, claimed in his amended petition that the defendant company on or about January 3, 1922, sold his mother a veal roast, to be used as food for herself and family, including himself, a boy aged 12 years; that the veal roast so sold her was then and there poison and putrified, unfit for human food, and injurious to life and health of persons eating it, which the meat company, in the exercise of ordinary care, could have known; that, as a direct and proximate consequence of eating said veal, after it had been cooked, the plaintiff suffered a severe infection in his digestive organs and blood-making processes, which brought upon him serious illness, as a result of which he sustained great damage.

To this amended petition the plaintiff in error, defendant in the court of common pleas, filed an answer in which it admitted only its corporate existence, and that it was engaged in the meat business, and particularly denied that it was engaged in preparing meats, that is to say, slaughtering animals, and denied that it was careless and negligent in the sale of same, and made many other specific denials, concluding with a general denial of each and every allegation contained in plaintiff's amended petition, except such as it admitted to be true or qualified, and for a second defense charged the defendant in error with contributory negligence, in that his mother, Mollie George, had not properly cooked and prepared the meat, and he himself, in the exercise of ordinary care, should have discovered that the veal was not fit for human consumption, and should not have eaten it.

To this answer the plaintiff filed a reply, denying every allegation in the answer, except such as admitted the truth of the averments of plaintiff's amended petition.

Upon the issues thus made up, the parties went to trial. Among other things, the court instructed the jury as follows:

"The state of Ohio has some laws, some sec

tions of its statutes, which apply to the sale of food products, and that includes the sale of meat. To those I will direct your atten

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"A violation of this law, by the defendant is negligence. It is known as negligence per se. Whether or not the defendant intended to violate the law does not make any difference. Whether the defendant or its servant knew that the veal was unwholesome, if it was unwholesome at the time it was sold, makes no difference. Lack of intent to violate the law is no defense to the defendant. The defendant's ignorance of the condition of the veal at the time it was sold is no defense. "That is the law of the state of Ohio, on the subject of selling meat."

A general verdict was rendered against the plaintiff in error for the sum of $5,000, and at the instance of the meat company the following interrogatory was submitted to the jury, to wit: "Do you find from the evidence that the veal roast, purchased by the plaintiff's mother, was unwholesome at the time it was sold to her by the defendant?" This question was answered by the jury in the affirmative, to wit, "Yes." A motion for a new trial was overruled, and judgment entered upon the verdict. Error was prosecuted to the Court of Appeals, which court affirmed the judgment of the court below. Error is now prosecuted to this court to reverse the judgment.

Carl M. Myers, of Akron, for plaintiff in

error.

Smoyer, Clinedinst & Smoyer, of Akron, for defendant in error.

DAY, J. This was an action for damages, based on the negligence of the defendant in selling unwholesome meat to the plaintiff to be consumed as food, the sale of which unwholesome meat was in violation of the law of the state.

[1] The jury, in response to an interrogatory submitted by the defendant, found that the veal roast purchased by plaintiff's mother was unwholesome at the time it was sold to her by the defendant, and further found a general verdict in favor of the plaintiff below.

Two questions are presented by the record: (1) Whether there is any evidence tending to support the special and general verdict of the jury. (2) Whether there is error in the trial court's charge, wherein he instructed the jury: "The defendant's ignorance of the condition of the veal at the time it was sold

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