
    Commonwealth v. George E. Howe.
    Reported in 144 Mass. 144.
    Middlesex,
    Nov. 22, 1886
    Feb. 26, 1887.
    Present, Morton, C. J., Field Devens, William Allen, Charles Allen, JJ.
    
      Fraudulent Voting on Question of Licensing Sale of Liquors. The Public Statutes, chapter 7, section 57, providing that “whoever ... at any national, State or municipal election . . . knowingly gives more than one ballot at one time of balloting at such election, shall be punished,” does not apply to ballots given, at a municipal election of a city, upon the question of granting licenses for the sale of intoxicating liquors.
    Complaint to the police court of Lowell, alleging that the defendant, on Dec. 8, 1885, at Lowell, at the regular annual municipal election of said city, held on said day, when a vote was taken'upon the following question, “ Shall licenses be granted for the sale of intoxicating liquors in this city ? ” the vote being then and there by separate ballot, “ did upon the question aforesaid, to wit, ‘ Shall licenses be granted for the sale of intoxicating liquors in this city ? ’ wilfully, fraudulently, knowingly, and designedly give in more than one ballot at one time of balloting at the vote and election aforesaid, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”
    In the superior court, on appeal, before the jury were empan-elled, the defendant filed a motion, which was also filed and overruled in the police court, to quash the complaint, for the following reason among others: “ That the said complaint sets forth no offence against any law or laws of this Commonwealth.” Staples, J., overruled the motion. The jury returned a verdict of guilty ; and the defendant alleged exceptions.
    
      W. F. Courtney for the defendant.
    
      H. N. Shepard, Assistant Attorney-General, for the Commonwealth.
    
      
       Now section 133 of chapter 423 of the Acts of 1890.
    
   W. Allen, J.

The Public Statutes, chaper 7, section 57, provide that ‘ ‘ whoever . . . at any national, State or municipal election . . . knowingly gives more than one ballot at one time of balloting at such election, shall be punished,” etc. The Public Statutes, chapter 100, section 5, provide that “ in a city which at its annual municipal election, or in a town which at its annual meeting, votes to authorize the granting of licenses for the sale of intoxicating liquors,” etc., “the aldermen and selectmen respectively shall insert in the warrant for the annual municipal election or town meeting an. article providing for a vote upon the question” of granting such licenses ; that the vote shall be by separate ballot, and in' taking it the check-list shall be used. The defendant was convicted on a complaint charging him with giving more than one ballot on the question of licensing the sale of intoxicating liquors at a municipal election in the city of Lowell. The complaint cannot be sustained, unless the statute first above cited includes such a ballot.

In the latter statute, the words “ annual municipal election ” evidently mean the annual meeting for the election of municipal officers. The law provides for such a meeting in cities, and the statute intended to provide for a vote to be taken at that meeting. The annual meeting being established by law for the election of officers, a vote required to be taken at the meeting, though not in the election of officers, was described as a vote at the annual election. If the same meaning is to be given to the word “ election” in the former statute, the act charged in the complaint comes within its purview ; but if it intends a ballot given in an election of national, State or municipal officers, it does not include the act charged in the complaint. The natural import of the expression “ balloting at a national, State or municipal election,” is balloting in the election of such officers, and it suggests only balloting for them. This apparent meaning of the statute might have been controlled by the more obvious different meaning of the word “ election” in the other statute, if the two statutes had been originally 'enacted at the same time, and if they related only to cities. But the consideration of the history and provisions of both statutes confirms the conclusion that the former statute intends only ballots cast for national, State or municipal officers.

The statute of 1813, chapter 68, section 2, provides that, “If any person, at any meeting for the choice of town officers, shall knowingly give in more than one vote or list, for an officer or list of officers then voted for at any such meeting, he shall forfeit,” etc. The Revised Statutes, chapter 4, section 7, in the chapter “ Of the manner of conducting elections,” provides that, “ If any voter shall knowingly give in more than one ballot, at any one time of balloting, at any election, he shall forfeit,” etc. This is re-enacted in the General Statutes, chapter 7, section 29, in the chapter under the same title. The statute of 1874, chapter 356, repealed this statute, and enacted, under the title of “ An Act to punish illegal voting and to secure the purity of elections,” that “ Whoever, with fraudulent intent, votes or attempts to vote upon any name other than his own at any national, State or municipal election,” or whoever knowingly gives more than one ballot at one time of balloting at an election, shall be punished by imprisonment,” etc. The statute of 1876, chapter 172, under the same title, re-enacted the statute with increased penalty. This included only ballots given in an election of officers, and was in force when the statute of 1881, chapter 54, first provided for voting in cities and towns upon the question of licensing the sale of intoxicating liquors. When the Public Statutes were enacted, the statute of 1876, chapter 172, was re-enacted in the chapter “ Of the manner of conducting elections and returning votes,” chapter 7, section 57 ; and the statute of 1881, chapter 54, was re-enacted in chapter 100, under the title “ Of intoxicating liquors.”

The natural import of the language of chapter 7, section 57, and the obvious purpose of its original enactment and subsequent reenactments, indicate that it was limited to ballots cast in the election of officers, and does not include all ballots upon any matter which might be voted upon by ballot at the annual meeting for the election of municipal officers in cities. It is very plain that the statute cannot include ballots cast at town meetings, except in the election of officers. A ballot given at a municipal election cannot, by any license of construction, be made to mean a ballot given at an annual town meeting on the question of pledging the credit of the town, or of uniting it with another town, or of licensing the sale of intoxicating liquors, or upon any matter of town concern which may be voted on by ballot. It is equally clear that the Legislature could not intend, by the words “ balloting at such election,” in chapter 7, section 57, to include balloting on the question of licensing the sale of intoxicating liquors in cities, and to exclude such balloting in towns. A construction which gives a different meaning to the words when applied to cities from what they have when applied to towns, is equally inadmissible with a construction which includes ballots given at a town meeting upon other matters than elections.

This construction is confirmed by a reference to the statutes regarding voting by cities and towns upon allowing sales of intoxicating liquors therein, when the statute of 1869, chapter 415, prohibiting sales, was in force. The statute of 1870, chapter 889, section 2, authorized sales of ale, porter, strong beer and lager beer. Section 8 was in these words: “The inhabitants of any city or town may, on the first Tuesday of July next, and thereafter on the first Tuesday in May annually, vote that no person shall be allowed to sell ale, porter, strong beer or lager beer, in which case the sale of such liquors in such city or town is prohibited.” The statute of 1871, chapter 834, repealed these sections and substituted other provisions. Section 2 authorized a city or town to vote on the first Tuesday of July then next, and thereafter annually on the first Tuesday of May, that any person might manufacture or sell ale, porter, strong beer or lager beer therein. Section 3 provided that meetings for the purpose should be notified, warned and held in the same manner as meetings for the choice of municipal officers ; that the meeting should be kept open at least two hours ; that the check-list should be used and the vote should be by ballot. This special meeting was clearly not an election,” within the meaning of that word in the statute, making penal the giving of more than one ballot at any election. The statute of 1871, chapter 334, was repealed by the effect of the statute of 1875, chapter 99, which provided for the granting of licenses for the sale of intoxicating liquors, by the mayor and aldermen of cities, and the selectmen of towns. The statute of 1881, chapter 54, which prohibited the granting of such licenses, except in cities and towns which voted to authorize them, provided for a vote in the manner provided for in the statute of 1871, chapter 334, except that, instead of requiring a special meeting on the first Tuesday of May annually, it provided for voting at the annual municipal election in cities and annual meeting in towns. These words, in our opinion, show an intention to fix the time and occasion when the voting should be had, and not to enact that ballots in cities, upon the question of licensing, should be taken to be ballots given at an election, within the meaning of that word in the statute upon elections.

We think that the contention of the defendant that the ballot intended by the statute, upon which the complaint is framed, is a ballot for national, State or municipal officers, and that the complaint charges no offence under the statute, is sustained.

If the complaint is good as charging a misdemeanor at common law (see Commonwealth v. Silsbee, 9 Mass. 417), it was an offence of which the police court of Lowell did not have jurisdiction; and it is unnecessary to consider the objection to the sufficiency of the complaint. Exceptions sustained.  