| N.H. | Dec 7, 1875
Lead Opinion
CARROLL COUNTY. It is unnecessary to inquire whether Cotton or Cate knew or ought to have understood that Cotton was elected one of the prudential committee on the second ballot. It is a fact about which there is no dispute, that, after the ballotings for prudential committee were over, Cotton was elected one of the auditors, and accepted the office without objection, and was sworn in before the adjournment. There is no question but that he was elected one of the prudential committee on the second ballot; but no one present at the time recollected that a plurality of votes elected. When at a subsequent stage of the meeting it was suggested that a plurality only was necessary to elect, it seems *223 no one discovered that Cotton was elected, although it was discovered that Carter had been elected on the first balloting. Some of the evidence taken tends to show that the election of Cotton was discovered later in the evening, and that Cotton and Cate had such notice of it, that the failure of Cotton to claim the office can be explained only upon the ground that he waived his right to the office and acquiesced in the action of the meeting. But I think the evidence, on the whole, shows that he did not claim the office because he did not know that he had been elected, till after the adjournment; and no one present seems to have learned the fact till the business of the meeting had been completed, and the meeting was upon the point of adjourning.
Nor is it necessary to inquire whether Cotton, although he was ignorant of the provision of the law that plurality would elect, should be charged with knowing what the law and his rights were. Applying the rule ignorantia legis, c., he would be charged with knowledge of his election, and, having failed seasonably to claim the office, his conduct is equivalent to a declination, and to acquiescence in the election of Furber.
But there is a view of this case that is decisive. Cotton accepted the office of auditor, and was qualified in open meeting by taking the oath of office. This was done with the acquiescence of all present. By so doing he has excluded himself from claiming the office of prudential committee. The two offices are clearly incompatible. The prudential committee are charged with the administration of the affairs of the district. They are the sole custodians of the money apportioned to the district for schooling. They make contracts with teachers in their discretion, and disburse the funds. The duties of an auditor are to examine the accounts of the prudential committee, and their vouchers, and report whether they are properly cast and supported, and whether the money has been legally expended. If the same person could hold both offices, he would in fact sit in judgment on his own acts. If there should be any irregularity or misappropriation of the funds, of course the opportunity would be afforded for concealing it from the district. The object of electing auditors is, that the district, through an independent tribunal, may have the additional assurance that its money has been properly accounted for and its affairs properly managed. When the two offices are held by the same person, this guaranty is, in a great measure, lacking. I am therefore of opinion that Mr. Cotton, by accepting the office of auditor, disqualified himself from holding that of prudential committee. This result makes it unnecessary to examine the objections raised to the sufficiency of the petition.
Concurrence Opinion
I fully agree with the results reached by my brother SMITH; but I desire, also, to express my very great doubts whether, if the petitioner had not accepted the inconsistent office, he ought to be permitted in this way to upset the doings of the district meeting. Assuming that he did not know that the election was by plurality until after the election of Furber and the dissolution of the meeting, still I *224 think that such ignorance, in a matter so easy to ascertain, ought to have the effect of a waiver of his right. It is admitted on all hands that there was no intentional wrong, — that the whole difficulty was the result of an honest mistake; but I think that after making that mistake, and acquiescing the doings of the meeting, he ought not now to be permitted to object.
These considerations assume greater importance when we consider the nature of this particular case. This election took place in March, 1875, and the decision was reached in December. What has been done meanwhile? Has the district lost its schooling for the year? or has the party in possession of the office been holding it at his peril? If these defendants have mistaken their rights or duties, would that mistake have excused them from the consequences of this proceeding? If their ignorance of the law will not excuse the defendants from these consequences, why should the plaintiff be permitted to take advantage of his ignorance of the law?
LADD, J., concurred.
Petition dismissed.