William J. Moran & another vs. Secretary of the Commonwealth & another (and three companion cases), 347 Mass. 500

Cutter, J. In each of these cases, a writ of mandamus is sought against the Secretary of the Commonwealth, in connection with the preparation of nomination papers and ballots and the performance of other duties with respect to the election of representatives in the Legislature for Mid-dlesex County.

The petitioners desire to compel the Secretary to use the description of representative districts contained in the first report (filed October 14,1963) of the special commission (the Middlesex commission) to divide Mid-dlesex County into representative districts (St. 1963, c. 666) rather than to give any effect to a later purported report (the second report) filed on October 15,1963. The later report attempts to modify two of the representative districts described in the first report. The cases have been reserved by a single justice upon the pleadings and a statement of agreed facts for our determination.

Each petitioner is a resident either of Arlington or of Somerville. In the Moran case, each petitioner is a registered voter in ward 7, precinct 3, in Somerville. The petitioner Wright is a duly registered voter in precinct 7 in Arlington. The Middlesex commission consisted of the respondents Breen, Valenti, Ellis, O’Brien, and Cahill.

On October 14,1963, all five commission members caused to be filed in the office of the Secretary of the Commonwealth the return required by St. 1963, c. 666, § 2, to carry out the mandate of art. 21 of the Amendments to the Constitution of the Commonwealth as appearing in art. 71 of the Amendments. This first report allocated Middlesex County’s fifty-five representatives among thirty-five districts. All five members of the Middlesex commission signed this report, with members O ’Brien and Cahill dissenting as to districts 2 and 3.

On October 15, 1963, Breen and Ellis of the Middlesex commission met in Boston in Suffolk County and prepared a paper (the second report), the relevant parts of which are set out in the margin. Valenti, Cahill, and O’Brien were not present. Breen and Ellis then caused the second report to be carried to Valenti’s place of employment in Boston where Valenti signed it. Thereafter Breen and Ellis called Cahill and 0 ’Brien by telephone and informed them of the paper prepared by Breen and Ellis and executed by Breen, Ellis, and Valenti.

Breen and Ellis then caused the second report to be filed with the Secretary of the Commonwealth at 4:55 p.m. on October 15. Apart from these telephone calls, Cahill and O’Brien had no notice of any meeting to be held on October 15,1963. The effect of the attempted amendment was to move precinct 7 of Arlington from district 28 to district 25. The respondents in their brief say that the unit representation on the average should be one representative for each 10,460 voters.

The number of voters to be represented in districts 25 and 28 in accordance with the two reports was as follows: DISTRICT FIRST REPORT SECOND REPORT 25 18,475 or 20,032 or (two 9,238 voters per 10,016 voters per representatives) representative representative 28 12,627 11,070 It has not been argued that the distribution of voters to these two districts, as made by the first report, was so unequal as to be invalid. See Attorney Gen. v. Suffolk County Apportionment Commrs. 224 Mass. 598, 606-607. We assume that the first report was a sufficient ‘ ‘ approximation to equality” (p. 607).

Statute 1963, c. 666, § 4, provides that “the existence of each board established by

section two ... [of which the Middlesex Commission was one, see fn. 1] shall terminate when the purposes for which such board was . . . established have been fully performed.” By § 2 (see fn. 1) October 15, 1963, was the last date for filing the return or report called for in the

section and the revised art. 21 of the Amendments (fn. 2). The record gives no explanation of the reasons for the attempt by the second report to change districts 25 and 28. It is not argued that the second report was filed to correct a mere clerical error or some inadvertence. 1. The petitioners contend that the Middlesex commission ceased to exist after October 14, 1963, when the first report was filed. They argue that the commission fully accomplished its purpose by filing the first report and thereafter, because of § 4 among other reasons, ceased to have authority to act.

To support this contention they rely upon Opinion of the Justices, 10 Gray, 613, 614-615, Cabot v. Cor-coran, 332 Mass. 44, 48, and Rep. A. G., Pub. Doc. No. 12, 1955, pp. 98, 99-100. We think that it is not necessary to pass upon this question, for, even if the Middlesex commission had power to act on October 15, 1963, it did not do so effectively. ■ 2. We assume that the Middlesex commission could act by a majority vote of all its members. See G. L. c. 4, § 6, Fifth.

We think, however, that it was intended that the commission, as a public board composed of civil officers (see Opinion of the Justices, 303 Mass. 615, 625, 630), should take official action only at a duly constituted meeting of which all the members had reasonable notice and at which all the members had opportunity to be present, rather than by the agreement of a majority of the members separately obtained. See Carbone, Inc. v. Kelly, 289 Mass. 602, 605; Real Properties, Inc. v. Board of Appeal of Boston, 311 Mass. 430, 433-435; Reilly v. Selectmen of Framingham, 345 Mass. 363, 365-366.

The undisputed facts show no prior notice to O’Brien and Cahill of the purported meeting on October 15, prior to the informal meeting of Breen and Ellis. A majority of the members of the Middlesex commission are not shown to have met on that day in one place. Even apart from the defect of want of notice; the separate action of Valenti in signing the second report was without significance at least where there was no meeting of a majority of the commission. O’Brien and Cahill did not sign the second report.

We hold that the purported action of Breen, Ellis, and Valenti on October 15, 1963, was without any legal effect. 3. The petitioners have standing to maintain these petitions under St. 1963, c. 666, § 3, and under general principles authorizing a writ of mandamus to enforce a public duty. See Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 92; Nickols v. Commissioners of Middlesex County, 341 Mass. 13, 18. The Secretary of the Commonwealth is under a public duty to act in accordance with the first report, the only effective report or return made by the Middlesex commission. 4.

Judgment in each case is to be entered commanding the Secretary of the Commonwealth (1) to prepare nomination papers and ballots, and to perform any and all other duties imposed upon him by law in which the representative districts for Middlesex County established in 1963 may be of significance, in accordance with the description of representative districts in Middlesex County, including districts 25 and 28, contained in the first report or return of the Mid-dlesex commissioners filed on October 14, 1963, and (2) to disregard the purported second report or return filed October 15,1963. So ordered.

Section 2 reads in part as fellows: "In each county . . . [subject to an exception not relevant] there is . . . established a bipartisan board of special commissioners to divide such county . . . into representative districts and to assign representatives thereto, which board shall consist of five persons .... [E]ach such board shall organize by the choice of one member as chairman and by the appointment of a secretary .... [I]n each . . . county other than Suffolk the board shall assemble at a shire town of its county, within the time required by . . .

Article XXI [of the Amendments to the Massachusetts Constitution], as . . . appearing [in art. LXXI], shall proceed to divide such county into representative districts, and shall assign representatives thereto, in accordance with said Article, and shall make return thereof as therein required . . . not later than . . . [October 15, 1963]. Each such county . . . shall provide the board for such county with a suitable office and room for hearings. . . See concerning St. 1963, e. 666, Opinion of the Justices, 346 Mass. 791.

The amended art. 21 provides for an enumeration of the inhabitants of each ward of each city and of each town and certain precincts in towns every ten years, which shall be the basis ‘ ‘ for determining the representative districts for the ten year period beginning” in the fourth following January. The number of representatives for each county is to be determined by the Legislature. This was done by St. 1963, c. 666, § 1, and Middlesex County was allotted fifty-five representatives.

Article 21 then provides that “county commissioners or other body acting as such or, in lieu thereof, such board of special commissioners in each county as may for that purpose be provided by law, shall . . . within such . . . period as the general court may by law provide, assemble at a shire town of their respective counties, and proceed, as soon as may be, to divide the same into representative districts of contiguous territory and assign representatives thereto, so that each representative in such county will represent an equal number of legal voters, as nearly as may be; and such districts shall be so formed that no town containing less than twelve thousand inhabitants according to said census, no precinct of any other town and no ward of a city shall be divided therefor, nor shall any district be made which shall be entitled to elect more than three representatives.

The general court may by law limit the time within which judicial proceedings may be instituted calling in question any such apportionment, division or assignment. . . .

The districts in each county shall be numbered by the board creating the same, and a description of each, with the numbers thereof and the number of legal voters therein, shall be returned by the board, to the secretary of the commonwealth, the county treasurer of such county, and to the clerk of every city or town in such county, to be filed and kept in their respective offices. ...” The report created three districts with three representatives, fourteen districts with two repfesentatives, and eighteen districts with one representative. “October 15, 1963 At a meeting of the Commission held October 15, 1963, the Commission voted to amend their report of October 14, 1963 as follows: District 25 . . .

Precincts 1, 3, 5, and 7 of . . . Arlington and Wards 6 and 7 of . . . Somerville, having 20,032 legal voters and 2 representatives. District 28 . . . Precincts 2, 4, 6, 9, 11, and 13 of . . . Arlington having 11,070 legal voters and 1 representative, /s/ Joseph L. Breen, Jr., Chairman /s/ Gemma M. Valenti /s/ Alexander Ellis, Jr.” The first report described districts 25 and 28 as follows: “District 25. Precincts 1, 3 and 5 of . . . Arlington, and Wards 6 and 7 of . . . Somerville, having 18,475 legal voters and two representatives. . . . District 28. Precincts 2, 4, 6, 7, 9,11, and 13 of . . .

Arlington, having 12,627 legal voters and one representative. ’ ’ We need not decide whether, under the 1963 statute and the revised art. 21 of the Amendments (see fn. 2), it was necessary for the Middlesex commission to hold all meetings in a shire town in that county.