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Strauss v. Mut. Ass'n, 126 N. C. 971, 36 S. E. 3. ELECTIONS-SPECIAL ELECTIONS. 352, 54 L. R. A, 605, 83 Am. St. Rep. 699;

The election of any other officer than those

specified by Rev. Laws, c. 11, 88 211, 318, on Benjamin v. Mutual, 146 Cal. 34, 79 Pac. 517.

the same day that the annual state election is On principle and on the weight of author held for the purpose of filling a vacancy, is a ity we are of opinion that there is nothing special election. in this contract that prevents the corporation

4. SAME-CAUCUSES.

Where a special election is to be held to from amending its by-laws in a reasonable

fill a vacancy at the same time as the annual way, to accomplish the purposes for which it

state election, the caucuses relative thereto was organized, even though the change in should be called under Rev. Laws, c. 11, SS 89, creases the payments to be made by certifi- 90, providing that they shall be held at such

time and place and be subject to such reasoncate holders. Such changes necessarily in

able notice as the political committee may devolve some hardship to certain individual termine, the nomination of such candidates being members, but the corporation, under the law, a subject of exception to the provisions of secshould do that which will bring the greatest

tion 87, relating to the time of holding caucuses

for the nomination of other candidates to be good to the greatest number. The members

voted for at the same time. who complain of its action are those who 5. SAME-IRREGULARITIES-EFFECT. have had the benefit of insurance for them

Rev. Laws, c. 11, $ 149, provides that, when selves and their families for many years, at

certificates of nomination and nomination pa

pers have been filed and are in apparent conformvery much less than the cost of their in

ity with the law, they shall be valid unless obsurance to the corporation. They have had jections thereto are made in writing, and section the good fortune to survive, and therefore

150 provides for the filing of such objections and their contracts have brought them no money,

a hearing before the state ballot law commission.

Held, that where no objections were made to but all the time they have had the stipulated the certificate or to the nomination of a persecurity against the risk of death. If now son to be elected at a special election for the

office of clerk of the Suffolk superior court, and they are called upon to pay for future insur

his name was put on the official ballot, irance no more than its cost to the corporation

regularities in making the nomination did not they ought not to think it unjust.

affect the validity of his election. Bill dismissed.

6. SAME--PRECEPT-ISSUANCE.

Where the precept of the Governor for a special election for the office of clerk of the

Suffolk superior court to fill a vancancy at the (191 Mass. 497)

same time the annual state election was held ATTORNEY GENERAL V. CAMPBELL. was issued in sufficient time to permit nomi

nations to be properly made as provided by (Supreme Judicial Court of Massachusetts.

Rev.' Laws, c. 11, $ 89, 90, it was immaterial Suffolk. May 17, 1906.)

that the caucuses for the nomination of the of

ficers to be elected at such state election were 1. CLERKS OF COURTS-VACANCY-APPOINT

in progress before it was issued. MENT_TERM. St. 1898, p. 632, c. 548, § 277, expressly

Information in the nature of a quo warprovides for the filling of a vacancy in the office of a clerk of the courts by an election “at

ranto by the Attorney General against the next annual election for which precepts can Francis A. Campbell. Information dismissed. be seasonably issued,” and by section 274 (page 630) authority is given to the justices, in Dana Malone, Atty. Gen., and Fredk, P. case of a vacancy in the office of clerk of the Cabot, for relator. Matthews, Thompson & superior court of Suffolk county, “to appoint a

Spring, for respondent. clerk," without an express statement of the term for which such appointment may be made. This section also provides for an election to KNOWLTON, C. J. This is an information fill the vacancy. St. 1893, p. 1235, c. 417, $ 218, provides that if there is a failure at an

in the nature of a quo warranto to determine election to choose a clerk of the courts the by what authority the respondent holds the Governor shall declare such failure and cause office of clerk of the superior court of Sufa special election to be held, and that in case of

folk county for civil business. Joseph A. a vacancy in an office of a clerk of the courts

Willard was elected to that office for the some person may be appointed as provided by law to fill such office until a person is duly term of five years from the first Wednesday elected and qualified. IIeld, that the term “clerk of January, 1902. On August 14, 1904, he of the courts" in section 218 was intended to

died. On September 3, 1904, the justices of include the c!erks of the superior court in Suffolk county, so that on the death of one of

the superior court, acting under Rev. Laws, such clerks for the care of civil business a clerk c. 11, $ 277, appointed Francis P. Ewing Mr. appointed by a justice for no stated term, Willard's successor, and he duly qualified which referred to the statute, constituted an appointment only until the next annual elec

and entered upon the duties of the office. On tion for which precepts could be seasonably is

September 27th of the same year, the acting sued.

Governor of the commonwealth issued a pre2. ELECTIONS — SPECIAL ELECTIONS — VACAN cept to the board of aldermen of Boston, CIES-PRECEPTS—ISSUANCE-DUTY OF Goy

reciting that by reason of the death of Mr. ERNOR. Where there was sufficient time after the

Willard a vacancy then existed in the office, death of a clerk of the Suffolk superior court and directing them to notify and summon for the seasonable issuance of a precept for an the voters to fill the vacancy for the remainelection to fill the vacancy at the next annual

der of the term of five years from the first state election, it was the duty of the Governor to issue such precept, as provided by St. 1893,

Wednesday of January, 1902, by an election p. 1235, c. 417, 8 218.

on the 8th day of the following November,

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which was the day prescribed by the statute under this statute, the proceedings for filling
for the annual state election. The aldermen it would have been such as were taken in
acted upon this precept in the usual way, the present case.
and, on the day appointed, the respondent By St. 1859, p. 339, C. 196, the superior
was elected by a vote of 46,166 ballots cast court was established to take the place of
for him, and 45,835 cast for Henry Behew the court of common pleas throughout the
and 2,759 cast for other persons. The re- commonwealth. This statute provided for
spondent took the prescribed oath and en- the election of clerks of the superior court,
tered upon the duties of the office.

including one for civil business and one for
The Attorney General contends that he criminal business, in Suffolk county, who
was not legally elected, first, because the ap- were not to be clerks of the Supreme Judicial
pointment of Mr. Ewing by the justices was Court, as were the clerks of the superior
in legal effect for the remainder of the term court in other counties. In other respects
for which Mr. Willard was elected, so that the statute treats clerks of the superior
there was no vacancy to be filled by election, court in Suffolk county as it treats clerks
and secondly, because the precept for the of the courts in other counties.
election was not seasonably issued, and the We have these laws compiled in the Gener-
proceedings which the law requires to ren- al Statute of 1860, and by chapter 121, § 7,
der an election valid were not had in pursu- the power of the justices to appoint a clerk
ance of it. The last part of this contention of the superior court when there is a vacancy
is founded on the fact that, on the day when in that office in the county of Suffolk is clearly
the precept was issued, caucuses were being stated. The appointee is “to hold the office
held for the nomination of officers and the until the next annual election, or until an-
election of delegates to conventions to nomi- other is elected or appointed in his stead.”
nate officers, to be voted for at the election The provision for elections to fill vacancies
on November 8th, and no caucuses were held is found in Gen. St. c. 10, § 13, which deals
for that purpose after the day on which the with clerks of the courts and other officers.
precept was issued.

There can be no doubt that a clerk of the Article 19 of the amendments to the Con- superior court for Suffolk county is included stitution of Massachusetts, which was rati- in the term "clerk of the courts," found in fied in 1855, provides for the election by section 10, c. 10, and referred to in section the people of certain officers who previously 13 of this chapter, for there is no other had been appointed by the Governor, includ- provision for the election to fill a vacancy ing clerks of the courts. By this amend- in this office, which is referred to in section 7. ment the Legislature was required to pre- These provisions of the General Statute were scribe by general law for the election of continued without change in Pub. St. c. 10, these officers. By St. 1856, p. 99, c. 173, 8 2, $8 1, 3, 10, and 13, and chapter 159, § 7. They the Legislature provided for the election of

were left unaffected by St. 1890, C. 423. clerks of the courts, with a special require- See sections 188, 190, 197, 200. ment that in Suffolk county, instead of elect- The election laws were again revised in ing a single officer who should be clerk of

1893, but no changes were made that matethe Supreme Judicial Court and clerk of rially affected this case. St. 1893, pp. 1205, the superior court for that county, as in 1247, 1245, 1235, 1237, c. 417, $$ 146, 258, other counties one person was to be elected 251, 218, 222. We have no doubt that the to be clerk of the Supreme Judicial Court term "clerk of the courts," in section 218, and clerk of the court of common pleas, the was intended to include the clerks of the voters should elect a clerk of the Supreme superior court in the county of Suffolk, as Judicial Court and a clerk for the superior the same term includes them in former court. The superior court of the county of statutes. Suffolk had been created by St. 1855, p. 862, In the revision and codification contained C. 449, to take the place of the court of com- in St. 1898, p. 541, c. 548, we find, at the end mon pleas in that county. In St. 1856, p. of section 274 (page 630) authority to the jus98, c. 173, the clerk of the superior court

tices in case of a vacancy in the office of for the county of Suffolk was treated in the clerk of the superior court for the county same way, in all particulars, as the clerks of Suffolk, to "appoint a clerk” without an of the courts were treated in their relation express statement of the term for which to the court of common pleas, in other coun- they are to make the appointment. But ties. All of the clerks of the different courts here again we find, in the earlier part of referred to in the act were removable by the this section and in section 277 (page 632), Justices of the Supreme Judicial Court, or a express provisions for filling a vacancy in majority of them, and the judges of the the office of clerk of the courts by an election several courts, or a majority of them, were "at the next annual election for which preauthorized, in case of a vacancy, to appoint cepts can be seasonably issued.” In this a person to the office to hold it until the statute, as in the former statutes, the term next annual election, at which time the "clerk of the courts" includes the clerks of office for the unexpired term was to be filled the superior court in Suffolk county. It by a vote of the people. In case of a vacancy follows that the appointment by the justices, in the office of clerk of any of these courts, in the present case, which referred to the

statute without stating the length of the Does that fact render the election invalid? term, was only until the next annual elec- We are of opinion that the provision already tion for which precepts could be seasonably referred to, in Rev. Laws, c. 11, § 149, anissued. The principal provisions of the act swers the question in the negative; but if last cited are found, without material change, there were no such provision the result in Rev. Laws, c. 11, &$ 211, 277, 280, 282, 318. would be the same. The people must be

As there was plenty of time after the de presumed to have expressed their will by cease of Mr. Willard to issue a precept their ballots. We are of opinion that, while seasonably, for an election to fill the vacancy, the provisions as to holding caucuses for at the next annual state election, there is the nomination of candidates and as to the no doubt that it was the duty of the Governor filing of nomination papers are binding upon to issue such a precept.

the officers for whose guidance they are The remaining objections to the election

intended, they may be disregarded in deare all founded on the irregularity as to the termining the validity of a subsequent elecnomination of candidates. It is said that

tion, if it plainly appears that the will of the precept was issued too late. It is true

the majority of the electors is fairly exthat the caucuses were in progress before pressed by their ballots. It has been so it was issued, and the delegates elected at

held in similar cases in this commonwealth. these caucuses put the respondent in nomina

Strong, Pet'r, 20 Pick. 484; Com. v. Smith, tion. A certificate of his nomination was

132 Mass. 289; Blackmer v. Hildreth, 181 filed with the Secretary of the common

Mass. 29, 63 N. E. 14. In the last of these wealth, which was in proper form, and his

cases there was a failure to comply with the name was put upon the official ballot. By

statute in regard to the nomination papers, Rev. Laws, c. 11, § 149, it is provided that,

and it was held that the irregularities did “when certificates of nomination and nomina

not invalidate the election. In referring to tion papers have been filed, and are in ap

these statutory preliminaries, Mr. Justice parent conformity with law, they shall be

Hammond said, in the opinion of the court: valid unless objections thereto are made in

"But with the preparation of the ballot the writing." Objections may be filed and a

influence of these provisions ends. If there hearing may be had before the state ballot

be irregularities like those in this case they law commission. No objection was made to

do not accompany the ballot to taint it in the certificate or to the nomination in any

the hands of the voter. This view of the form at any time. This fact, of itself, in

statute gives due weight and scope to the connection with the statute, should make it

provisions in question, and preserves the impossible to set asid: the election for ir

sanctity of the right of suffrage, and its regularities in making the nomination.

free and honest exercise. To hold otherwise The precept was not issued too late to

would be to lose sight of the purpose for which allow nominations to be made properly.

these provisions were made, namely, to proThis was a special election to be held, by

vide the method and time for the preparadirection of the Governor, for a special pür

tion of the ballot, and would subject our pose. Authority for it rested on the special

elections to intolerable and perplexing techniprecept. It was to be held, by virtue of the

calties in no way material to the substantial statute, at the same time as the annual state election. The officers to be elected at the

merits of the controversy, or to the freedom and annual state election

result of the action of the voters. Its natural

are prescribed by statute. Rev. Laws, c. 11, $$ 211, 318. The

tendency would be to thwart rather than to election of any other officer on the same day

secure a true expression of the popular will.” to fill a vacancy is a special election. In

A similar disregard of preliminary require

ments and other technicalities, in giving Rev. Laws, c. 11, $ 87, the nomination of candidates for special elections, who are to

effect to the plainly expressed will of the be voted for at the annual state election,

people at elections, has been shown in many is a subject of exception to the provisions

of the decisions of other states. People v. to the time of holding caucuses with a view

Peck, 11 Wend. (N. Y.) 604, 27 Am. Dec. 101; to the nomination of other candidates to be

People v. Wood, 148 N. Y. 142, 42 N. E. 536; voted for at the same time.

People v. Wilson, 62 N. Y. 186; People v. As this was a special election, the caucuses

Hartwell, 12 Mich. 508, 86 Am. Dec. 70; relative to it should have been called under

State v. Gotez, 22 Wis. 363; Cleland V. Rev. Laws, c. 11, $$ 89, 90, which provide Porter, 74 Ill. 70, 24 Am. Rep. 273; Board v. that they "shall be held at such time and People, 65 Ill. 300; Hoxsie v. Edwards, 24 place, and subject to such reasonable notice, R. I. 338, 53 Atl. 128; Bowers v. Smith, 111 as the political committee

may

Mo. 45, 20 S. W. 101, 16 L. R. A. 754, 33 Am. determine." This committee

This committee neglected to St. Rep. 491; State v. Doherty, 16 Wash. 382, issue a call for such a caucus, and this was 47 Pac. 358, 58 Am. St. Rep. 39. an irregularity. The nomination made by We are of opinion that the precept of the the delegates chosen at the caucus held on Governor was seasonably issued, and that the day when the Governor's precept was the irregularities in regard to making the issued was certified, and went unchallenged nominations did not invalidate the election, upon the official ballot.

Information dismissed,

(191 Mass. 515)

6. COMMERCE – SUBJECTS OF REGULATION COMMONWEALTH V. STRAUSS.

SALE OF GOODS.

Nor is it repugnant to Const. U. S. art. (Supreme Judicial Court of Massachusetts. 1, § 8, giving Congress power to regulate comPlymouth. May 17, 1906.)

merce, notwithstanding the enactment of the 1. MONOPOLIES-SALE OF GOODS-OFFENSES

federal anti-trust law (Act July 2, 1890, C. STATUTE-CONSTRUCTION.

647, 26 Stat. 209 [U. S. Comp. St. 1901, p. A contract that the purchaser shall sell 3200]), prohibiting contracts directly affecting the goods of the seller, and shall not sell the

interstate or foreign commerce by way of regoods of any other person, is within the inhibi

straint of trade or creation of a monopoly. tion of Rey. Laws, c. 56, § 1, providing that a person, firm, corporation, or association of

Exceptions from Superior Court, Plymouth persons doing business in Massachusetts shall County. not make it a condition of the sale of goods,

Abe Strauss was convicted of violating the wares, or merchandise that the purchaser shall not sell or deal in the goods, wares, or mer

provisions of Rev. Laws, c. 56, § 1, and brings chandise of any other person, firm, corporation, exceptions. Exceptions overruled. or association of persons, but that the provi For former opinion, see 74 N. E. 308. sions of the section shall not prohibit the appointment of agents or sole agents for the sale Asa P. French and Thos. E. Grover, Dist. of, nor the making of contracts for the exclusive sale of, goods, wares, or merchandise.

Atty., for the Commonwealth. F. M. Bixby, 2. SAME-INSTRUCTIONS.

for defendant. A request for a ruling that, if the defendant named a price at which he would sell his

KNOWLTON, C. J. This case has once employer's tobacco, and then stated to the person proposing to purchase that, if he (the mer

before been considered by this court, upon chant) bought or sold no plug tobacco except a question which does not now arise. Comthat manufactured by the defendant's employer,

monwealth v. Strauss, 188 Mass. 229, 74 N. the defendant would return a rebate of 6 per cent., such statement would not be a sale of

E. 308. The questions first to be considered goods on condition that the purchaser should at this time relate to the construction of Rev. not sell or deal in the goods of any other person, Laws, c. 56, § 1, under which the defendant firm, corporation, or association of persons, and the verdict should be not guilty, was properly re

was indicted. The section is quoted at fused on a prosecution under the statute, where, length in the case just cited. The prohibion the whole evidence, the court could not say tive part is as follows: "A person, firm, coras matter of law that the defendant did not understand this offer and intend it to be in

poration or association of persons, doing busiterpreted by his customers as an offer to sell ness in this commonwealth, shall not make only on condition that they would agree not to it a condition of the sale of goods, wares or sell the goods of others, and that the proposal

merchandise that the purchaser shall not of the price without a rebate was not intended by the defendant and understood by his custom

sell or deal in the goods, wares or merchaners as an evasion and subterfuge which nobody dise of any other person, firm, corporation would act on, except with the understanding or association of persons; but the provisions on the part of both that there should be no

of this section shall not prohibit the appointsale of the goods of others. 3. SAME-POLICE POWER.

ment of agents or sole agents for the sale of, Rev. Laws, c. 56, § 1, providing that a nor the making of contracts for the excluperson, firm, corporation, or association of per

sive sale of goods, wares or merchandise." sons, doing business in Massachusetts shall not

The defendant contends that a contract make it a condition of the sale of goods, wares, or merchandise, that the purchaser shall not deal that the purchaser shall sell the goods of the in those of any other person, firm, corporation, seller, and shall not sell the goods of any or association of persons, but that the section shall not prohibit the appointment of agents or

other person, is a contract for the exclusive sole agents for the sale of, nor the making of

sale of the goods, and is therefore permitted contracts for the exclusive sale of, goods, wares, by the statute. Such a construction would or merchandise, is within the police power of leave the statute without effect. The term the state.

"exclusive sale" must be given a meaning 4. CONSTITUTIONAL LAW – PRIVILEGES AND IMMUNITIES — DUE PROCESS

which is not inconsistent with other provi

OF LAW EQUAL PROTECTION OF LAWS.

sions of the act. As used here it means The statute is not repugnant to Const. U.

selling within a prescribed territory, to the S. Amend. 14, declaring that no state shall make or enforce any law which shall abridge

exclusion of all other persons, so that in the the privileges or immunities of citizens of the designated place the purchaser who makes United States, nor deprive any person of life, such a contract with the original seller will liberty, or property without due process of law,

have the control of the market for resale. nor deny to any person within its jurisdiction the equal protection of the laws.

The facts of this case show no arrangement 5. SAME.

for an exclusive sale of the defendant's goods Nor repugnant to the Declaration of Rights by either of the purchasers, within the meanin Const. Mass. art. 1, providing that all men

ing of the statute. are born free and equal and have certain natural, essential, and inalienable rights, among The request for a direction of a verdict which may be reckoned the right of enjoying of not guilty on the first count, upon grounds and defending their lives and liberties, that of

which do not pertain to the other counts

has in fine, that of seeking and obtaining their safety and happiness; or article 10, providing is treated by both parties as not now imthat each individual of the society has a right portant. to be protected by it in the enjoyment of his life, liberty, and property according to standing

The fourth request for a ruling was, in laws.

substance, that if the defendant named a

price at which he would sell his employer's essential to his carrying out to a successful tobacco, and then stated to the person pro- conclusion the purposes above mentioned." posing to purchase “that if he, the merchant, See Allgeyer v. Louisiana, 165 U. S. 578, 589, bought or sold no plug tobaccos except that 17 Sup. Ct. 427, 431, 41 L. Ed. 832. These manufactured by the defendant's employer rights, however, are subject to limitations, the defendant would return a rebate of 6 arising under the proper exercise of the poper cent., such statement would not be a lice power, by the Legislatures of the resale of goods on condition that the purchaser spective states. This power, as recognized should not sell or deal in the goods of any under the Constitution of the United States, other person, tirm, corporation or association does not differ materially from that estabof persons, and the verdict should be not lished under the broad language of the Conguilty.” This presents the question which stitution of Massachusetts, found in part 2, was referred to, but not decided, when the c. 1, art. 4, which gives ample legislative case was formerly considered by this court. authority, and at the same time keeps it

There was evidence from which the jury within the boundaries of individual constitumight find that the price named and the re- tional rights. bate offered were such as were intended by There is no doubt that the statute before the defendant as a practical refusal to sell us puts a limitation upon the general right any goods, except upon a condition which to make contracts. The contention of the would entitle the purchaser to the rebate, commonwealth is that this limitation is and were understood by the purchaser to be valid as an exercise of the police power. The SO intended. Witnesses testified that it nature of the police power and its extent, as would be impossible for the purchaser to car- applied to conceivable cases, cannot easily ry on business successfully on the offered

be stated with exactness. It includes the terms, except upon compliance with this con- right to legislate in the interest of the public dition which would bring the rebate. Upon health, the public safety and the pubthe whole evidence the court could not say,

lic morals. If the power is to be held as matter of law, that the defendant did not

within the limits of the field thus deunderstand his offer, and intend it to be fined, the words should · be

should be interpreted interpreted by his customers as an offer to broadly and liberally. If we are to include sell only on condition that they would agree in the definition, as many judges have done, not to sell the goods of others, and that the the right to legislate for the public welfare, proposal of the price without a rebate was

this term should be defined with some strictnot intended by the defendant, and under- ness, so as not to include everything that stood by his customers, as an evasion and

might be enacted on grounds of mere expesubterfuge which nobody would act upon, ex

diency. In the very late 'case of Lochner v. cept with the understanding on the part of

New York, 198 U. S. 45, 53, 25 Sup. Ct. 539, both that there should be no sale of the goods 541, 49 L. Ed. 937, the majority of the court of others. We think the statute was intend

said, “Those powers, broadly stated, and ed to prevent the imposition of the condition

without at present any attempt at a more in this indirect way, as much as if the seller specific limitation, relate to the safety, health, had said, categorically, “I will sell you no morals and general welfare of the public.” goods except upon this condition.” This re- In the opinion in Louisville & Nashville quest for a ruling was rightly refused.

Railroad v. Kentucky, 161 U. S. 677, 701, 16 We are brought now to a consideration of Sup. Ct. 714, 723, 40 L. Ed. 849, we find this the objections to the statute on constitutional language: "The general rule holds good, that grounds. The defendant contends, first, that

whatever is contrary to public policy or inthe statute is in conflict with the fourteenth imical to the public interests is subject to the amendment to the Constitution of the United police power of the state, and within legislaStates; secondly, that it is in conflict with tive control, and in the

exercise of such power articles 1 and 10 of the Declaration of Rights the Legislature is vested with a large discrein the Constitution of Massachusetts; and tion, which if exercised bona fide for the prothirdly, that, in its application to the facts tection of the public, is beyond the reach of of this case, it is in conflict with article 1, judicial inquiry." $ 8, of the Constitution of the United States. It becomes necessary to look somewhat

The rights relied upon under the four- critically at the statute before us, to discover teenth amendment to the Constitution of the its effect upon the rights of contracting parUnited States, and under the Declaration of ties, and the purpose of the Legislature in Rights in the Constitution of Massachusetts, enacting it. In the sale of goods to be resold are substantially the same, namely, the right it forbids one kind of contract which might of every person to his life, liberty and pron- be made in competition with other sellers of erty, including freedom to use his faculties similar goods. It leaves open every other in all lawful ways, "to live and work where kind of contract. We may infer that the he will, to earn his livelihood by any lawful Legislature was providing for cases in which calling, to pursue any livelihood or vocation, this particular kind of contract would be and for that purpose to enter into all con- unfair competition as against weaker dealtracts which may be proper, necessary and ers, and would be injurious to the public as

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