323 Mass. 295 | Mass. | 1948
This is a petition for a writ of mandamus to try title to two offices of selectmen of the town of
Facts material to this appeal are these: For many years the town at its annual meeting elected a board of selectmen, composed of three members, for one year terms. At the annual meeting on February 3, 1943, the town voted “to accept article 25 of the warrant . . . providing” that at the annual meeting' in 1944 the town should elect’ three selectmen for the respective terms of one, two>' and. .three years, and that at each annual meeting thereafter it should elect one selectman for. a tertii of'three'years. Elections were conducted in accordance, with that vote beginning with the annual meeting in 1944. At a special town meeting on August 27, 1947, it was voted “that the town rescind its action in acceptance of article 25 of the annual town meeting held February 3, 1943, and elect three members of the board of selectmen, three members of the board of welfare as provided for in c. 41, § 1, of the General Laws, all to serve for one year.”
On February 25, 1948, the date of the annual election of town officers, the board of selectmen consisted of one Sullivan, elected in 1945 for a term of.three years; the petitioner Cluff, elected in 1946 for a term of three years; and the petitioner Carter, elected in 1947 for a term of three years. At the election held oh February 25, 1948, the only names appearing on the official ballot as candidates for the office of selectmen were Sullivan and the respondents. Believing that their terms of office were not affected by the vote of the special town meeting of August 27, 1947, the petitioners did not file nomination papers and their names did not appear on the ballot.
Prior to the annual town meeting of 1948 the selectmen (Sullivan, Cluff and Carter) were about to prepare and post
At the election the vote was as follows:
C. Abbott Battles . 838
Philip A. Burgess . 832
Edward J. Sullivan . . 842
Victor N. Cluff
William B. Carter2 . . 58
All others .... . . 18
Blanks..... . 808
Sullivan and the respondents were declared elected for a term of one year and all have taken the oath of office and are acting as selectmen.
The "town has accepted the provisions of law for the use of official ballots in electing town officers and as provided in § 6 of c. 41 of the General Laws, and such official ballots were usted at the . . . election . . . held on February 25, 1948.”
The demurrer of the respondents was rightly overruled. The ground of the demurrer was that the "petition does not set forth facts well pleaded entitling the . . . [petitioners],
That mandamus is the proper remedy to try the title to a municipal office is well settled. Keough v. Aldermen of Holyoke, 156 Mass. 403. MacBrayne v. City Council of Lowell, 241 Mass. 380, 384. Parrott v. Plunkett, 268 Mass. 202, 205. The petition here alleges everything essential for relief. It alleges in substance that the respondents and the petitioners are claiming the same offices, namely, two offices of selectmen of the town of Tewksbury. It was not possible in the circumstances obtaining here for either petitioner to assert that a particular respondent illegally held the office which he was claiming. Consequently it was sufficient for them to allege that they claimed the offices held by the respondents. Whether the petitioners were improperly joined (see Wardwell v. Leggat, 291 Mass. 428, 431) is a question not open on this demurrer, which was general. G. L. (Ter. Ed.) c. 231, § 18, Fourth. See Worthington v. Houghton, 109 Mass. 481, 486; Steffe v. Old Colony Railroad, 156 Mass. 262, 263. The petitioners were not required to name Sullivan as a respondent since they have not sought to challenge his right to hold office. See Wardwell v. Leggat, 291 Mass. 428, 430. Whether he was properly elected is a question not before us. The petitioners do not contend, and were not required to allege, that the vote of August 27, 1947, was invalid. It is the effect of that vote and not its validity which is in issue.
We pass now to the merits of the controversy the decision on which turns on the effect of that vote. As previously noted, that vote rescinded the action of a previous town meeting which had fixed the terms of selectmen at three years, and provided that thereafter selectmen should be elected to serve for one year. The respondents contend
The pertinent statutes in force at the time that the petitioners were elected are G. L. (Ter. Ed.) c. 41, § 1, as amended by St. 1934, c. 155, § 1, and St. 1943, c. 453, § 3; § 2.
In earlier statutory provisions, namely, in St. 1913, c. 835, the question here presented is specifically dealt with. By § 400 it is provided that every town at its annual
The legislative history of §§ 1 and 2, we think, does not support this argument. Statute 1920, c. 591, is the result of a report of a commission appointed under the provisions of c. 248 of the general acts of 1919 to complete the work of "revising and codifying the laws relating to towns.”
The conclusion follows that the terms of the petitioners were not diminished by the vote of August 27, 1947, and that they are entitled to serve until the expiration of their respective terms. The entry must be
Judgment affirmed.
In an appeal from this decision to this court we were asked to decide the question now presented but we declined to do so, being of opinion that it was preferable to determine that issue in the present proceedings. King v. Selectmen of Tewksbury, 322 Mass. 668.
The votes for the petitioner Cluff were “ by means of stickers and write-ins”; those for the petitioner Carter were ‘‘by means of write-ins.”
These, so far as material, are as follows: “Section 1. Every town at its annual meeting shall in every year when the term of office of any incumbent expires, and except when other provision is made by law, choose by ballot from its registered voters the following town officers for the following terms of office . . . Three or five selectmen for the term of one or three years .... Section 2. Where the town elects a new board or officer to perform the duties of an existing board or officer, the office of such existing board or officer shall terminate upon the qualification of the new board or officer. Where official ballots are used, the establishment of a new board or office, or the fixing of the term of office of town officers where such term is optional, or the increase or reduction of the number of members of a board, shall be determined at a meeting held at least thirty days before the annual meeting. In towns not using official ballots the matter may be determined by vote at the annual meeting. Such vote shall continue in effect until rescinded. If a town votes to increase the number of members of any board, such increase shall be made by adding one or more to each class, to hold office according to the tenure of the class to which they are severally chosen, as will within three years effect it, and such vote to increase shall remain in force until the increase under it is accomplished. If a town votes to diminish the number of members of any board, such diminution shall be made by choosing annually such number as will within three years effect it, and a vote to diminish shall remain in force until the diminution under it is accomplished. If a town votes to reduce a board of three members to a single officer, such vote shall take effect at the following annual town meeting, and upon the election and qualification of such officer the term of said board shall terminate; provided, that in towns where official ballots are used, unless the vote thus passed is more than thirty days prior to the annual town meeting, it shall not take effect until the succeeding annual town meeting.”
Section 33 and §§ 1 and 2 are, so far as here material, substantially the .same. ...
The commission in its report stated, “The law in reference to the election of town officers as now appearing in chapter-835 of the Acts of 1913, known as the election law, is considerably confused, and in: the effort to clarify the same the various sections have been consolidated and revised; this has permitted of the elimination of ten sections in the present law, and makes the law more concise and easier of interpretation by the general public.” See Massachusetts Legislative Documents, Senate, 1920, No. 2, page 18.