Strauss v. Mut. Ass'n, 126 N. C. 971, 36 S. E. 352, 54 L. R. A. 605, 83 Am. St. Rep. 699; Benjamin v. Mutual, 146 Cal. 34, 79 Pac. 517. On principle and on the weight of authority we are of opinion that there is nothing in this contract that prevents the corporation from amending its by-laws in a reasonable way, to accomplish the purposes for which it was organized, even though the change increases the payments to be made by certificate holders. Such changes necessarily involve some hardship to certain individual members, but the corporation, under the law, should do that which will bring the greatest good to the greatest number. The members who complain of its action are those who have had the benefit of insurance for themselves and their families for many years, at very much less than the cost of their insurance to the corporation. They have had the good fortune to survive, and therefore their contracts have brought them no money, but all the time they have had the stipulated security against the risk of death. If now they are called upon to pay for future insurance no more than its cost to the corporation they ought not to think it unjust. Bill dismissed.

(191 Mass. 497)

ATTORNEY GENERAL v. CAMPBELL. (Supreme Judicial Court of Massachusetts. Suffolk. May 17, 1906.)

1. CLERKS OF COURTS-VACANCY-APPOINTMENT-TERM.

St. 1898, p. 632, c. 548, § 277, expressly provides for the filling of a vacancy in the of fice of a clerk of the courts by an election "at the next annual election for which precepts can be seasonably issued," and by section 274 (page 630) authority is given to the justices, in case of a vacancy in the office of clerk of the superior court of Suffolk county, "to appoint a clerk," without an express statement of the term for which such appointment may be made. This section also provides for an election to fill the vacancy. St. 1893, p. 1235, c. 417, § 218, provides that if there is a failure at an election to choose a clerk of the courts the Governor shall declare such failure and cause a special election to be held, and that in case of a vacancy in an office of a clerk of the courts some person may be appointed as provided by law to fill such office until a person is duly elected and qualified. Held, that the term "clerk of the courts" in section 218 was intended to include the clerks of the superior court in Suffolk county, so that on the death of one of such clerks for the care of civil business a clerk appointed by a justice for no stated term, which referred to the statute, constituted an appointment only until the next annual election for which precepts could be seasonably issued.

2. ELECTIONS - SPECIAL ELECTIONS-VACANCIES-PRECEPTS-ISSUANCE-DUTY OF Gov

ERNOR.

Where there was sufficient time after the death of a clerk of the Suffolk superior court for the seasonable issuance of a precept for an election to fill the vacancy at the next annual state election, it was the duty of the Governor to issue such precept, as provided by St. 1893, p. 1235, c. 417, § 218.

3. ELECTIONS-SPECIAL ELECTIONS.

The election of any other officer than those specified by Rev. Laws, c. 11, §§ 211, 318, on the same day that the annual state election is held for the purpose of filling a vacancy, is a special election.

4. SAME-CAUCUSES.

Where a special election is to be held to fill a vacancy at the same time as the annual state election, the caucuses relative thereto should be called under Rev. Laws, c. 11, §§ 89, 90, providing that they shall be held at such time and place and be subject to such reasonable notice as the political committee may determine, the nomination of such candidates being a subject of exception to the provisions of section 87, relating to the time of holding caucuses for the nomination of other candidates to be voted for at the same time.

5. SAME IRREGULARITIES-EFFECT.

Rev. Laws, c. 11, § 149, provides that, when certificates of nomination and nomination papers have been filed and are in apparent conformity with the law, they shall be valid unless objections thereto are made in writing, and section 150 provides for the filing of such objections and a hearing before the state ballot law commission. Held, that where no objections were made to the certificate or to the nomination of a person to be elected at a special election for the office of clerk of the Suffolk superior court, and his name was put on the official ballot, irregularities in making the nomination did not affect the validity of his election.

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 same time the annual state election was held was issued in sufficient time to permit nominations to be properly made as provided by Rev. Laws, c. 11, §§ 89, 90, it was immaterial that the caucuses for the nomination of the officers to be elected at such state election were in progress before it was Issued.

Information in the nature of a quo warranto by the Attorney General against Francis A. Campbell. Information dismissed.

Dana Malone, Atty. Gen., and Fredk. P. Cabot, for relator. Matthews, Thompson & Spring, for respondent.

KNOWLTON, C. J. This is an information in the nature of a quo warranto to determine by what authority the respondent holds the office of clerk of the superior court of Suffolk county for civil business. Joseph A. Willard was elected to that office for the term of five years from the first Wednesday of January, 1902. On August 14, 1904, he died. On September 3, 1904, the justices of the superior court, acting under Rev. Laws, c. 11, § 277, appointed Francis P. Ewing Mr. Willard's successor, and he duly qualified and entered upon the duties of the office. On September 27th of the same year, the acting Governor of the commonwealth issued a precept to the board of aldermen of Boston, reciting that by reason of the death of Mr. Willard a vacancy then existed in the office, and directing them to notify and summon the voters to fill the vacancy for the remainder of the term of five years from the first Wednesday of January, 1902, by an election on the 8th day of the following November,

which was the day prescribed by the statute for the annual state election. The aldermen acted upon this precept in the usual way, and, on the day appointed, the respondent was elected by a vote of 46,166 ballots cast for him, and 45,835 cast for Henry Behew and 2,759 cast for other persons. The respondent took the prescribed oath and entered upon the duties of the office.

The Attorney General contends that he was not legally elected, first, because the appointment of Mr. Ewing by the justices was in legal effect for the remainder of the term for which Mr. Willard was elected, so that there was no vacancy to be filled by election, and secondly, because the precept for the election was not seasonably issued, and the proceedings which the law requires to render an election valid were not had in pursuance of it. The last part of this contention is founded on the fact that, on the day when the precept was issued, caucuses were being held for the nomination of officers and the election of delegates to conventions to nominate officers, to be voted for at the election on November 8th, and no caucuses were held for that purpose after the day on which the precept was issued.

Article 19 of the amendments to the Constitution of Massachusetts, which was ratified in 1855, provides for the election by the people of certain officers who previously had been appointed by the Governor, including clerks of the courts. By this amendment the Legislature was required to prescribe by general law for the election of these officers. By St. 1856, p. 99, c. 173, § 2, the Legislature provided for the election of clerks of the courts, with a special requirement that in Suffolk county, instead of electing a single officer who should be clerk of the Supreme Judicial Court and clerk of the superior court for that county, as in other counties one person was to be elected to be clerk of the Supreme Judicial Court and clerk of the court of common pleas, the voters should elect a clerk of the Supreme Judicial Court and a clerk for the superior court. The superior court of the county of Suffolk had been created by St. 1855, p. 862, c. 449, to take the place of the court of common pleas in that county. In St. 1856, p. 98, c. 173, the clerk of the superior court for the county of Suffolk was treated in the same way, in all particulars, as the clerks of the courts were treated in their relation to the court of common pleas, in other counties. All of the clerks of the different courts referred to in the act were removable by the Justices of the Supreme Judicial Court, or a majority of them, and the judges of the several courts, or a majority of them, were authorized, in case of a vacancy, to appoint a person to the office to hold it until the next annual election, at which time the office for the unexpired term was to be filled by a vote of the people. In case of a vacancy in the office of clerk of any of these courts,

under this statute, the proceedings for filling it would have been such as were taken in the present case.

By St. 1859, p. 339, c. 196, the superior court was established to take the place of the court of common pleas throughout the commonwealth. This statute provided for the election of clerks of the superior court, including one for civil business and one for criminal business, in Suffolk county, who were not to be clerks of the Supreme Judicial Court, as were the clerks of the superior court in other counties. In other respects the statute treats clerks of the superior court in Suffolk county as it treats clerks of the courts in other counties.

We have these laws compiled in the General Statute of 1860, and by chapter 121, § 7, the power of the justices to appoint a clerk of the superior court when there is a vacancy in that office in the county of Suffolk is clearly stated. The appointee is "to hold the office until the next annual election, or until another is elected or appointed in his stead." The provision for elections to fill vacancies is found in Gen. St. c. 10, § 13, which deals with clerks of the courts and other officers. There can be no doubt that a clerk of the superior court for Suffolk county is included in the term "clerk of the courts," found in section 10, c. 10, and referred to in section 13 of this chapter, for there is no other provision for the election to fill a vacancy in this office, which is referred to in section 7. These provisions of the General Statute were continued without change in Pub. St. c. 10, §§ 1, 3, 10, and 13, and chapter 159, § 7. They were left unaffected by St. 1890, c. 423. See sections 188, 190, 197, 200.

The election laws were again revised in 1893, but no changes were made that materially affected this case. St. 1893, pp. 1205, 1247, 1245, 1235, 1237, c. 417, §§ 146, 258, 251, 218, 222. We have no doubt that the term "clerk of the courts," in section 218, was intended to include the clerks of the superior court in the county of Suffolk, as the same term includes them in former statutes.

In the revision and codification contained in St. 1898, p. 541, c. 548, we find, at the end of section 274 (page 630) authority to the justices in case of a vacancy in the office of clerk of the superior court for the county of Suffolk, to "appoint a clerk" without an express statement of the term for which they are to make the appointment. But here again we find, in the earlier part of this section and in section 277 (page 632), express provisions for filling a vacancy in the office of clerk of the courts by an election "at the next annual election for which precepts can be seasonably issued." In this statute, as in the former statutes, the term "clerk of the courts" includes the clerks of the superior court in Suffolk county. It follows that the appointment by the justices, in the present case, which referred to the

statute without stating the length of the term, was only until the next annual election for which precepts could be seasonably issued. The principal provisions of the act last cited are found, without material change, in Rev. Laws, c. 11, §§ 211, 277, 280, 282, 318. As there was plenty of time after the decease of Mr. Willard to issue a precept seasonably, for an election to fill the vacancy, at the next annual state election, there is no doubt that it was the duty of the Governor to issue such a precept.

The remaining objections to the election are all founded on the irregularity as to the nomination of candidates. It is said that the precept was issued too late. It is true that the caucuses were in progress before it was issued, and the delegates elected at these caucuses put the respondent in nomination. A certificate of his nomination was filed with the Secretary of the commonwealth, which was in proper form, and his name was put upon the official ballot. By Rev. Laws, c. 11, § 149, it is provided that, "when certificates of nomination and nomination papers have been filed, and are in apparent conformity with law, they shall be valid unless objections thereto are made in writing." Objections may be filed and a hearing may be had before the state ballot law commission. No objection was made to the certificate or to the nomination in any form at any time. This fact, of itself, in connection with the statute, should make it impossible to set asid the election for irregularities in making the nomination.

The precept was not issued too late to allow nominations to be made properly. This was a special election to be held, by direction of the Governor, for a special purpose. Authority for it rested on the special precept. It was to be held, by virtue of the statute, at the same time as the annual state election. The officers to be elected at the annual state election are prescribed by statute. Rev. Laws, c. 11, §§ 211, 318. The election of any other officer on the same day to fill a vacancy is a special election. In Rev. Laws, c. 11, § 87, the nomination of candidates for special elections, who are to be voted for at the annual state election, is a subject of exception to the provisions to the time of holding caucuses with a view to the nomination of other candidates to be voted for at the same time.

As this was a special election, the caucuses relative to it should have been called under Rev. Laws, c. 11, §§ 89, 90, which provide that they "shall be held at such time and place, and subject to such reasonable notice, as the political committee *** may determine." This committee neglected to issue a call for such a caucus, and this was an irregularity. The nomination made by the delegates chosen at the caucus held on the day when the Governor's precept was issued was certified, and went unchallenged upon the official ballot.

Does that fact render the election invalid?

We are of opinion that the provision already referred to, in Rev. Laws, c. 11, § 149, answers the question in the negative; but if there were no such provision the result would be the same. The people must be presumed to have expressed their will by their ballots. We are of opinion that, while the provisions as to holding caucuses for the nomination of candidates and as to the filing of nomination papers are binding upon the officers for whose guidance they are intended, they may be disregarded in determining the validity of a subsequent elec-. tion, if it plainly appears that the will of the majority of the electors is fairly expressed by their ballots. It has been so held in similar cases in this commonwealth. Strong, Pet'r, 20 Pick. 484; Com. v. Smith, 132 Mass. 289; Blackmer v. Hildreth, 181 Mass. 29, 63 N. E. 14. In the last of these cases there was a failure to comply with the statute in regard to the nomination papers, and it was held that the irregularities did not invalidate the election. In referring to these statutory preliminaries, Mr. Justice Hammond said, in the opinion of the court: "But with the preparation of the ballot the influence of these provisions ends. If there be irregularities like those in this case they do not accompany the ballot to taint it in the hands of the voter. This view of the statute gives due weight and scope to the provisions in question, and preserves the sanctity of the right of suffrage, and its free and honest exercise. To hold otherwise would be to lose sight of the purpose for which these provisions were made, namely, to provide the method and time for the preparation of the ballot, and would subject our elections to intolerable and perplexing technicalties in no way material to the substantial merits of the controversy, or to the freedom and result of the action of the voters. Its natural tendency would be to thwart rather than to secure a true expression of the popular will." A similar disregard of preliminary requirements and other technicalities, in giving effect to the plainly expressed will of the people at elections, has been shown in many of the decisions of other states. People v. Peck, 11 Wend. (N. Y.) 604, 27 Am. Dec. 104; People v. Wood, 148 N. Y. 142, 42 N. E. 536; People v. Wilson, 62 N. Y. 186; People v. Hartwell, 12 Mich. 508, 86 Am. Dec. 70; State v. Gotez, 22 Wis. 363; Cleland v. Porter, 74 Ill. 76, 24 Am. Rep. 273; Board v. People, 65 Ill. 360; Hoxsie v. Edwards, 24 R. I. 338, 53 Atl. 128; Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 16 L. R. A. 754, 33 Am. St. Rep. 491; State v. Doherty, 16 Wash. 382, 47 Pac. 958, 58 Am. St. Rep. 39.

We are of opinion that the precept of the Governor was seasonably issued, and that the irregularities in regard to making the nominations did not invalidate the election. Information dismissed,

(191 Mass. 545)

COMMONWEALTH V. STRAUSS. (Supreme Judicial Court of Massachusetts. Plymouth. May 17, 1906.)

1. MONOPOLIES-SALE OF GOODS-OFFENSESSTATUTE-CONSTRUCTION.

A contract that the purchaser shall sell the goods of the seller, and shall not sell the goods of any other person, is within the inhibition of Rev. Laws, c. 56, § 1, providing that a person, firm, corporation, or association of persons doing business in Massachusetts shall not make it a condition of the sale of goods, wares, or merchandise that the purchaser shall not sell or deal in the goods, wares, or merchandise of any other person, firm, corporation, or association of persons, but that the provisions of the section shall not prohibit the appointment of agents or sole agents for the sale of, nor the making of contracts for the exclusive sale of, goods, wares, or merchandise. 2. SAME-INSTRUCTIONS.

A request for a ruling that, if the defendant named a price at which he would sell his employer's tobacco, and then stated to the person proposing to purchase that, if he (the merchant) bought or sold no plug tobacco except that manufactured by the defendant's employer, the defendant would return a rebate of 6 per cent., such statement would not be a sale of goods on condition that the purchaser should not sell or deal in the goods of any other person, firm, corporation, or association of persons, and the verdict should be not guilty, was properly refused on a prosecution under the statute, where, on the whole evidence, the court could not say as matter of law that the defendant did not understand this offer and intend it to be interpreted by his customers as an offer to sell only on condition that they would agree not to sell the goods of others, and that the proposal of the price without a rebate was not intended by the defendant and understood by his customers as an evasion and subterfuge which nobody would act on, except with the understanding on the part of both that there should be no sale of the goods of others.

3. SAME-POLICE POWER.

Rev. Laws, c. 56, § 1, providing that a person, firm, corporation, or association of persons, doing business in Massachusetts shall not make it a condition of the sale of goods, wares, or merchandise, that the purchaser shall not deal in those of any other person, firm, corporation, or association of persons, but that the section shall not prohibit the appointment of agents or sole agents for the sale of, nor the making of contracts for the exclusive sale of, goods, wares. or merchandise, is within the police power of the state.

4. CONSTITUTIONAL LAW - PRIVILEGES AND
LAW
IMMUNITIES - DUE PROCESS OF
EQUAL PROTECTION OF LAWS.

The statute is not repugnant to Const. U. S. Amend. 14, declaring that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. 5. SAME.

Nor repugnant to the Declaration of Rights in Const. Mass. art. 1, providing that all men are born free and equal and have certain natural, essential, and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties, that of acquiring, possessing, and protecting property, in fine, that of seeking and obtaining their safety and happiness; or article 10, providing that each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property according to standing

laws.

6. COMMERCE SUBJECTS OF REGULATION SALE OF GOODS.

Nor is it repugnant to Const. U. S. art. 1, § 8, giving Congress power to regulate commerce, notwithstanding the enactment of the federal anti-trust law (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), prohibiting contracts directly affecting interstate or foreign commerce by way of restraint of trade or creation of a monopoly.

Exceptions from Superior Court, Plymouth County.

Abe Strauss was convicted of violating the provisions of Rev. Laws, c. 56, § 1, and brings exceptions. Exceptions overruled.

For former opinion, see 74 N. E. 308.

Asa P. French and Thos. E. Grover, Dist. Atty., for the Commonwealth. F. M. Bixby, for defendant.

KNOWLTON, C. J. This case has once before been considered by this court, upon a question which does not now arise. Commonwealth v. Strauss, 188 Mass. 229, 74 N. E. 308. The questions first to be considered at this time relate to the construction of Rev. Laws, c. 56, § 1, under which the defendant was indicted. The section is quoted at length in the case just cited. The prohibitive part is as follows: "A person, firm, corporation or association of persons, doing business in this commonwealth, shall not make it a condition of the sale of goods, wares or merchandise that the purchaser shall not sell or deal in the goods, wares or merchandise of any other person, firm, corporation or association of persons; but the provisions of this section shall not prohibit the appointment of agents or sole agents for the sale of, nor the making of contracts for the exclusive sale of goods, wares or merchandise."

The defendant contends that a contract that the purchaser shall sell the goods of the seller, and shall not sell the goods of any other person, is a contract for the exclusive sale of the goods, and is therefore permitted by the statute. Such a construction would leave the statute without effect. The term "exclusive sale" must be given a meaning which is not inconsistent with other provisions of the act. As used here it means selling within a prescribed territory, to the exclusion of all other persons, so that in the designated place the purchaser who makes such a contract with the original seller will have the control of the market for resale. The facts of this case show no arrangement for an exclusive sale of the defendant's goods by either of the purchasers, within the meaning of the statute.

The request for a direction of a verdict of not guilty on the first count, upon grounds which do not pertain to the other counts has not been argued by the defendant, and is treated by both parties as not now important.

The fourth request for a ruling was, in substance, that if the defendant named a

price at which he would sell his employer's tobacco, and then stated to the person proposing to purchase "that if he, the merchant, bought or sold no plug tobaccos except that manufactured by the defendant's employer the defendant would return a rebate of 6 per cent., such statement would not be a sale of goods on condition that the purchaser should not sell or deal in the goods of any other person, firm, corporation or association of persons, and the verdict should be not guilty." This presents the question which was referred to, but not decided, when the case was formerly considered by this court.

There was evidence from which the jury might find that the price named and the rebate offered were such as were intended by the defendant as a practical refusal to sell any goods, except upon a condition which would entitle the purchaser to the rebate, and were understood by the purchaser to be SO intended. Witnesses testified that it would be impossible for the purchaser to carry on business successfully on the offered terms, except upon compliance with this condition which would bring the rebate. Upon the whole evidence the court could not say, as matter of law, that the defendant did not understand his offer, and intend it to be interpreted by his customers as an offer to sell only on condition that they would agree not to sell the goods of others, and that the proposal of the price without a rebate was not intended by the defendant, and understood by his customers, as an evasion and subterfuge which nobody would act upon, except with the understanding on the part of both that there should be no sale of the goods of others. We think the statute was intended to prevent the imposition of the condition in this indirect way, as much as if the seller had said, categorically, "I will sell you no goods except upon this condition." This request for a ruling was rightly refused.

We are brought now to a consideration of the objections to the statute on constitutional grounds. The defendant contends, first, that the statute is in conflict with the fourteenth amendment to the Constitution of the United States; secondly, that it is in conflict with articles 1 and 10 of the Declaration of Rights in the Constitution of Massachusetts; and thirdly, that, in its application to the facts of this case, it is in conflict with article 1, § 8, of the Constitution of the United States.

The rights relied upon under the fourteenth amendment to the Constitution of the United States, and under the Declaration of Rights in the Constitution of Massachusetts, are substantially the same, namely, the right of every person to his life, liberty and property, including freedom to use his faculties in all lawful ways, "to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or vocation, and for that purpose to enter into all contracts which may be proper, necessary and

essential to his carrying out to a successful conclusion the purposes above mentioned." See Allgeyer v. Louisiana, 165 U. S. 578, 589, 17 Sup. Ct. 427, 431, 41 L. Ed. 832. These rights, however, are subject to limitations, arising under the proper exercise of the police power, by the Legislatures of the respective states. This power, as recognized under the Constitution of the United States, does not differ materially from that established under the broad language of the Constitution of Massachusetts, found in part 2, c. 1, art. 4, which gives ample legislative authority, and at the same time keeps it within the boundaries of individual constitutional rights.

There is no doubt that the statute before us puts a limitation upon the general right to make contracts. The contention of the commonwealth is that this limitation is valid as an exercise of the police power. The nature of the police power and its extent, as applied to conceivable cases, cannot easily be stated with exactness. It includes the right to legislate in the interest of the public health, the public safety and the public morals. If the power is to be held within the limits of the field thus defined, the words should be interpreted broadly and liberally. If we are to include in the definition, as many judges have done, the right to legislate for the public welfare, this term should be defined with some strictness, so as not to include everything that might be enacted on grounds of mere expediency. In the very late 'case of Lochner v. New York, 198 U. S. 45, 53, 25 Sup. Ct. 539, 541, 49 L. Ed. 937, the majority of the court said, "Those powers, broadly stated, and without at present any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public." In the opinion in Louisville & Nashville Railroad v. Kentucky, 161 U. S. 677, 701, 16 Sup. Ct. 714, 723, 40 L. Ed. 849, we find this language: "The general rule holds good, that whatever is contrary to public policy or inimical to the public interests is subject to the police power of the state, and within legislative control, and in the exercise of such power the Legislature is vested with a large discretion, which if exercised bona fide for the protection of the public, is beyond the reach of judicial inquiry."

It becomes necessary to look somewhat critically at the statute before us, to discover its effect upon the rights of contracting parties, and the purpose of the Legislature in enacting it. In the sale of goods to be resold it forbids one kind of contract which might be made in competition with other sellers of similar goods. It leaves open every other kind of contract. We may infer that the Legislature was providing for cases in which this particular kind of contract would be unfair competition as against weaker dealers, and would be injurious to the public as