111 Mass. 256 | Mass. | 1873
The respondents are actually exercising the office of selectmen of Lexington, with an apparent or prima fade right
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
• 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 re
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.