Attorney General v. Simonds, 111 Mass. 256

111 Mass. 256 | Mass. | 1873

Ames, J.

The respondents are actually exercising the office of selectmen of Lexington, with an apparent or prima fade right to do so. The present suit is against them directly, for the purpose of testing the validity of their right to the office which they claim, and is the appropriate, if not the only, mode in which that question can be finally settled. Frost v. Mayor of Chester, 5 E. & B. 531. Attorney General v. Salem, 103 Mass. 138. Some of the authorities relied upon by the respondents are for this reason but remotely, if at all, applicable to the question in dispute.

The St. of 1863, c. 198, expressly requires that, in the election of moderators of town meetings held for the choice of town officers, the check list shall be used. At the meeting at which these respondents claim to have been chosen selectmen, the check list was not used. Whether the effect of this irregularity would have been, of necessity, to invalidate the subsequent elections or not, it was an informality which the town would undoubtedly have had a right to correct at the same meeting. If therefore, before the adjournment, any voter present at the meeting had called attention to the error, and had moved, for that reason and in order to correct the mistake, to proceed anew to the choice of a moderator, such a motion would have been proper, and such new choice of a moderator would have been regular and legal. Such a new choice of moderator would have been in substance the reconsideration of all that had been done while the meeting was without a legal moderator, and thereupon a new election of town officers would be proper and indeed necessary. The town, at the original meeting, could lawfully have said by its vote, that the person chosen irregularly, and without proper formalities, to act as moderator, was not the moderator, and could have treated all that was done, while he presided as such, as of no binding force or effect. This is what the town has undertaken to do.

The only question open to any serious doubt is whether the town could take this course at an adjournment of the original meeting. A regular and proper adjournment of a town meeting is a continuation of the same meeting. The respondents however insist that, if there was no legal moderator, with power to preside at the election of town officers, to receive and count the votes and declare the result, there was also no moderator who could put the question of adjournment, and declare the meeting adjourned from the fourth to the eleventh of March; in other words, that if the meeting was not sufficiently organized for the choice of town officers, it was not sufficiently organized for the purpose of adjournment. But we do not consider this argument as having any legal foundation. It is not at all unusual, and never has been supposed to be unlawful, for meetings of corporations to be adjourned for want of a quorum, without transacting any other business. Such an adjournment might not be likely to occur in the case of a town meeting, but it is not difficult to suppose cases in which it might be convenient to the inhabitants of a town to postpone for a few days the entire business of the meeting, including the choice of a moderator. There might be a failure to choose any person as moderator; or a difficulty in ascertaining which of several candidates had been chosen. However unlikely it may be that a meeting would be prevented by any such cause from advancing with the transaction of its business, it would not for that cause be incapacitated from action. Until a moderator is legally chosen, the clerk is the proper presiding officer; and if any voter should move an adjournment to a day certain, at any time after the clerk has called the meeting to order, we do not see why the meeting may not adopt the suggestion and vote accordingly, or why the clerk may not record the vote. The vote to adjourn does not depend upon the election of the moderator ; and, if it may be adopted without being preceded by the election of such an officer, it cannot be said to be void and of no effect because the proposition is put to vote, and the result is declared, by a person who, without legal authority, but without objection, is permitted to act as the presiding officer for the time being.

• The meeting in this, case was regularly called for the fourth day of March, and the business which it then proceeded to act upon was transacted in such a manner that the votes and elections which had occurred were not binding upon the town. But the meeting was not dissolved; and the town saw fit, before finally dissolving the meeting, to confirm all the business that had been irregularly done, except the choice of officers, and upon that business they had a right to act de nova. The fact that the respondents had in the mean time taken the oaths of office does not remedy the irregularity of their election or impair the right of the town to correct the informality by a new and regular election.

The result then is, that the respondents have no valid title to the offices to which they claim to have been duly elected, and that Judgment of ouster is to issue accordingly.