54 Me. 95 | Me. | 1866
It appears by the records of the town of Alfred that, at a legal meeting of its inhabitants, holden on 12th March, 1866, Silas Derby, Timothy Gary and Nathaniel II. Russell were chosen selectmen, George L. Came, town clerk, and John R. Tripp, treasurer. They severally had three votes more than the opposing candidates for the town offices to which they were respectively elected, with the exception of Silas Derby who had but two more.
The relators in their application for the writ of mandamus allege that neither the individuals above named nor any others were elected to these offices, by reason of the double voting of two persons named in said application and the wrongful voting of a minor: —that there having been no legal election, on the 31st March, they informed the respondents of these facts and requested them, "then and there being the acting selectmen of the said town of Alfred,
The rule having been served upon the respondents, they appeared at the time and place appointed and were heard, and upon and after such hearing an alternative mandamus was issued returnable at Alfred, in this county, on the fourth Tuesday of May, then next, commanding them to issue "their warrant in due form of law for a town meeting of the inhabitants of said town of Alfred, qualified by law to vote in said town, to choose a clerk, selectmen, assessors and overseers of the poor and treasurer of said town,” or show cause why they do not.
On the seventh day of the term to which the writ was returnable, the respondents file their return, in which they
This return, if true, obviously affords sufficient reasons against the issuing of a peremptory mandamus. It was placed on file, where it still remains. Its legal effect is to be considered.
At common law, if the defendant returns a legally sufficient cause, though false in fact, the Court will not try its truth, but, assuming it to be true, will decline to proceed further on the mandamus. A return to the mandamus is not traversable. The prosecutor is estopped by the return. The only remedy left open is an action for a false return. If the writ has not been brought in respect of private right, and the public interests are involved, the Court will grant a criminal information against all the parties who made the false return, in order that the disputed facts may be tried. Tapping on Mandamus, 460. If the return be falsified in an action on the case, or by criminal information for a false return, the Court will then grant a peremptory mandamus. 6 Bac. Abr., Mandamus, M, 452.
The proceedings by common law being dilatory and expensive, a remedy was provided specially applicable to the case of municipal officers, by stat. 9 Ann, c. 20. By this Act the " persons prosecuting this writ may plead to or trav
The statute of 9 Ann does not extend to the mass of the subjects of mandamus, which l’emain to be disposed of according to the course of the common law. The cases, to which we have been referred, were mainly, if not entirely, within the purview of that statute.
But the statute 9 Ann, c. 20, has never been adopted in this State. Gage v. Howard, 6 Mass., 462. Nor has any statute similar in its provisions been enacted. It is, however, otherwise in several of the States. Consequently, if the return, whether true or false, is sufficient, the writ of peremptory mandamus cannot at present issue. If true, it never can. If false, it cannot until after judgment shall have been obtained in an action or information against these defendants for a false return.
It appears that after the return and the amended return had been filed, the defendants demurred' to the petition for the writ of mandamus and the relators joined in the demurrer, both returns meanwhile remaining on file and constituting part of the record. The presiding Judge overruled the demurrer.
This ruling was correct. The defendants could not legally demur. "If the writ is defective either in form or in substance,” observes Chancellor Walwokth, in Commercial Bank v. Canal Commissioners, 10 Wend., 25, "the defendant may move to quash it.” The King v. The Bishop of Oxford, 7 East, 345; The People v. The Judges of
The return, it may be observed, like that of a sheriff or any other officer, becomes part of the record, and hence is not traversable. If short, it may be indorsed on the writ. If of any length, it may be upon a separate paper, to which the writ or a copy should be annexed.
The defendant may return as many causes as he pleases, provided they are not repugnant and inconsistent. "In order to support a return consisting of several causes, it is not necessary that every one of them should be good, provided the whole of them are neither repugnant nor inconsistent.” Tapping on Mandamus, 360. If, therefore, the original return was sufficient, the filing an additional one in the nature of a demurrer would not weaken nor destroy the sufficiency of the returns on file and constituting a part of the record.
The rules of pleading are applicable to the writ of mandamus. "The writ should contain allegations of all such facts as are necessary to show that the prosecutor is legally entitled to the relief he prays, otherwise it is liable to bo quashed.” Tapping on Mandamus, 320. " Therefore, when a mandamus is awarded for purposes partly legal and partly not, as when a writ exceeds an obligation imposed on the defendant by an Act of parliament, &c., the Court will not in part enforce it by a peremptory writ limiting its effect,
The defendants are commanded to issue a warrant for a meeting of the inhabitants of Alfred, to choose a cleric, selectmen, assessors and overseers of the poor, and treasurer of said town.
But no notice has been given the clerk and the treasurer of the pendency of this process. They are officers de facto. They are officers according to the records of the town, duly chosen at a legal meeting. Their election has never been adjudged to be null and void, and it cannot, without a manifest disregard of the first principles of justice, be so adjudged, without notice to them and an opportunity on their part to show cause why there should be no such adjudication. Strong, pet’r, 20 Pick., 484.
It does not appear who were chosen assessors and overseers of the poor. Whoever they may be, no notice has been given them. There is no allegation of any vacancy in those offices, nor, if there was any election of individuals to fill them, of fraud or illegality in such election. In short, no reason whatever is given for ordering an election of persons to fill those offices. There is, then, nothing in the writ to justify or authorize the mandatory clause to its full extent, and we have seen that the writ must be executed in the form in which it has issued or not at all.
The most important duties of these defendants as selectmen have probably been performed by them; the taxes have been assessed, and the list of voters for the fall elections prepared. They are officers de facto and clothed with apparent right. Their acts in the past would be binding. A peremptory mandamus cannot issue until after judgment against them for a false return. But before that time, their official existence will have terminated. The granting of a writ of mandamus is matter of discretion and not of right. Woodman v. County Com’rs, 24 Maine, 151.
In Com. v. Athearn, 3 Mass., 285, the Court refused to grant an information in the nature of a quo warranto against a town officer who is elected for one year, ParsoNS, C. J., remarking that, to do so, " would not be a decent and proper exercise of their authority.” In Gage v. Howard, 6 Mass., 463, each party claimed to bo elected as county treasurer. The plaintiff moved for a rule on the defendant to show cause why a mandamus should not go to admit him to the office of county treasurer, ho having been duly elected. "The Court,” observes Parsons, C. J., "could not grant a peremptory mandamus until the l’eturn was falsified. And, if it might be granted after the return was falsified by verdict, in an action by Howard against the justices, yet such verdict could not in some counties, and probably would not in any county, be found until after the expiration of the year, for which the party complaining was chosen.”
In New York, and for the same reason, the Court declined as matter of discretion to allow the attorney general to file an information in the natui’e of a quo warranto, against an officer holding by annual election. The People v. Sweating, 2 Johns., 184. So in this State, in Woodbury v. Co. Com’rs, 40 Maine, 315, it was held that the granting the writ of mandamus was matter of judicial discretion, and that it would not be granted, when, if granted, it would be unavailing, as in case of annual officers.
It becomes unnecessary to consider or determine the various other questions, which the learned counsel for the parties to this litigation have so ably and elaborately discussed. Peremptory mandamus denied.