Morway v. Town of Webster

563 N.E.2d 700, 29 Mass. App. Ct. 604
CourtMassachusetts Appeals Court
DecidedDecember 14, 1990
DocketNo. 89-P-883
StatusPublished
Cited by1 cases

This text of 563 N.E.2d 700 (Morway v. Town of Webster) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morway v. Town of Webster, 563 N.E.2d 700, 29 Mass. App. Ct. 604 (Mass. Ct. App. 1990).

Opinion

Gillerman, J.

Fifteen members of SIN-CERE (“Stop Incineration Now — Conserve Environmental Resources Efficiently”) filed an action in the Superior Court against the town of Webster (the town), its board of selectmen and board of registrars after the clerk of the board of registrars refused to accept the plaintiffs’ referendum petition. The defendants claimed that the petition had not been filed in a timely fashion, and their motion for summary judgment was allowed.

The town employs a form of representative town meeting government established under St. 1933, c. 13, as authorized by G. L. c. 43A, § 1. The town’s charter3 contains a broad referendum provision which permits a challenge to any final vote of the town meeting with certain limited exceptions not applicable here.4 Section 2-15 of the charter provides that no final vote of a town meeting (other than a vote on an excepted subject) shall become operative until the expiration of [606]*606ten days following the dissolution of the town meeting. See note 4, supra. If within the ten days a petition protesting a vote taken at the meeting, and certified by the board of registrars of voters to have been signed by not less than four percent of the voters, is filed with the board of selectmen, the challenged vote continues to be suspended, and the board of selectmen is required to order a special election for the submission of the question to all of the town’s registered voters.5

To obtain the required certification of the board of registrars, § 2-15(c) provides, in part, that:

“Not more than seven days following the dissolution of a town meeting any such petition shall be submitted to the board of registrars of voters which shall within three days following such referral determine whether the petition contains a sufficient number of valid signatures of voters. Said petition shall forthwith be referred by the registrars of voters to the board of selectmen.”

The town’s charter is carefully designed. Every final vote of the town meeting which is not beyond the reach of a referendum petition is suspended for ten days following the dissolution of the town meeting. Unless a referendum petition is filed with the selectmen within the ten-day period, each vote then becomes effective. The petition must bear the certifica-[607]*607tian of the board of registrars that it has been signed by not less than four percent of the voters. By requiring that the petition be submitted to the registrars by the end of the seventh day, the charter allows three days for the verification of signatures. But it is the filing of a certified petition with the selectmen that has the effect of suspending the challenged vote until the outcome of the vote at the special election which must then be called by the board of selectmen.

On January 12, 1988, the town held a meeting at which art. 19 on the town warrant was approved. That article authorized the board of selectmen to enter into a long-term lease of approximately six acres of town land to Vicon Recovery Systems of Webster, Inc. The purpose of the proposed lease was to permit Vicon to build and operate a facility for the disposal of municipal solid waste and to generate energy (steam or electricity, or both) in the process.

The plaintiffs, who had opposed the passage of art. 19, circulated a referendum petition to obtain the signatures required to have art. 19 placed on the ballot at a special referendum election. The parties have stipulated that the board of registrars have verified that the plaintiffs obtained the signatures of more than the required four percent of the registered voters in the town. That percentage translates to more than 1,000 signatures.

The parties have also stipulated that at 7:30 p.m. on January 19, 1988, the seventh day following the town meeting, the plaintiffs presented their referendum petition to the chairman of the board of selectmen, who, according to the stipulation, said he “accepted the petition and that he would send it over to the board of registrars.” Finally, it is stipulated that the town clerk (who is also clerk of the board of registrars) was notified on January 20, 1988, that a referendum petition “was at the [s]electmen’s office, [but] the [t]own [c]lerk refused to accept the petition [because] it was not filed within seven days of the dissolution of the [t]own [m]eeting as required by [s]ection 2-15 of the [c]barter.”

There is no dispute that the plaintiffs did not follow the procedure prescribed by the town charter; at the close of the [608]*608seventh day their petition was delivered to the chairman of the board of selectmen and not to the clerk of the board of registrars.6 The question to be decided is whether that deviation was fatal to the petition.

The plaintiffs suggest that delivery to the registrars was made on the seventh day because the chairman of the board of selectmen was acting for the board of registrars. There is no basis for that argument. A person cannot appoint himself the agent for another. See Treasurer & Recr. Gen. v. Macdale Warehouse Co., 262 Mass. 588, 593 (1928). So, too, the plaintiffs’ argument that the town should be estopped because of the conduct of the chairman must fail. See O’Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558 (1986) (court is reluctant to apply principles of estoppel to public entities); Racette v. Zoning Bd. of Appeals of Gardner, 27 Mass. App. Ct. 617, 620 (1989).

Much firmer ground is to be found by accepting the misstep and calling up the principle that not every error in exercising the right to local self-government guaranteed by art. 2 of the Amendments to the Constitution of Massachusetts, is beyond cure. Here, it is important to recall, more than one thousand voters — all that the charter requires — had signed a petition calling for a special election, and both the plaintiffs and the chairman acted in good faith and in the honest belief that there was compliance with the required procedure. In circumstances such as these, “[e]very rational intendment is to be made in favor of the rightful exercise of the franchise. That principle pervades and dominates all our decisions and harmonizes them all.” Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 277 (1932).

The court in Swift reviewed the Massachusetts decisions in which mistakes, irregularities and omissions in the political process were not fatal to the intended result. Included in the review was Blackmer v. Hildreth, 181 Mass. 29 (1902), where, said the Swift court, “a nomination paper for a candi[609]*609date was filed two days later than the date when by the statute it ‘shall be filed.’ It was found that all the parties including the town clerk and registrars acted in good faith in receiving the nomination paper and printing the name of the candidate on the official ballot. It was held that ballots prepared must be counted notwithstanding the violation of the legislative mandate expressed by ‘shall.’ ” Swift, supra at 278-279. See Myers v. Commonwealth, 363 Mass. 843, 846 (1973) (the word “shall” as used in statutes may be construed as permissive). Cf. Hashimi v. Kalil, 388 Mass. 607, 609 (1983).

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Bluebook (online)
563 N.E.2d 700, 29 Mass. App. Ct. 604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morway-v-town-of-webster-massappct-1990.