3 Mass. 285 | Mass. | 1807
Lead Opinion
I should not be for granting an information in any case, where the judgment of the Court upon the information can have no effect. The officer may be liable to a fine, in case judgment of a motion be rendered, but not otherwise, as I now recollect When the information comes to a hearing, this man’s tenure in the office he claims will have expired. We could not then pass a judgment of removal. Upon this ground I am against granting the information.
I consider this rather as a proceeding in rem, to obtain a specific remedy, than as a mode by which the respondent is to be punished. But before judgment can be rendered, the mischief will be gone. To proceed further in the case would be futile;
Concurrence Opinion
concurred, and added, that if the Court should remove a town officer, who is chosen for a year, he did not know that there was any provision in law, by which a vacancy thus created might be filled. The Court will be understood by this decision to have determined, not that they have no authority to grant an information whenever they shall think a case exhibited to them shall require it, but only that in the present case it would not be a discreet and proper exercise of their authority.
As the town clerk for the preceding year holds over until another clerk is chosen and qualified, perhaps the proper remedy is for the successor to take the oath of office, and to demand of the former clerk the records; and if they are refused, then to move for a mandamus, to command him to deliver over the records. The rule is discharged.
Upon this opinion being declared, the Attorney-General, of counsel for the respondent, moved that he should have judgment for his costs, as the party prevailing
But the Court said they had no authority to give costs to the respondent in this case.
Stat. 1784, c. 28. § 9.