This is a petition for a writ of mandamus to the mayor and aldermen -of the city of Pawtucket to require them to reject certain votes cast in favor of one Frank M. Borden at an election of second councilman for the second ward in that city, held May 3, 1893, and to declare the petitioner elected to that office and to give him a certificate of election accordingly.
It appears that the number of votes cast at the election was 511, of which the petitioner received 218; Borden, 73; and one Patrick Keenan, 190. If the votes for Borden be rejected, the petitioner would have a majority of the votes, lie claims that they should be rejected because Borden was,- as *282 he alleges, disqualified as a candidate, in that he was not a resident of the second ward at the date of the election, and that the electors knew that fact.
A similar question was considered in In re Corliss, 11 R. I. 638, 644, in which the conclusion was reached that the result of an election to an office of a person disqualified is to render void the election of the candidate who is disqualified, hut not to elect the candidate receiving the next highest number of votes. The question now presented is different from that in In re Corliss, since it is averred in the petition that the electors knew of the fact creating the disqualification. It is not averred, however, that the electors knew that the fact amounted to a disqualification in point of law, or that, knowing the disqualification, they voted for the candidate in defiance of law. Without one or the other of these averments, it is clear, under the cases cited in In re Corliss, 11 R. I. 648, that the votes could not be rejected and the petitioner held entitled to the office. Whether if such facts were averred, that result could be accomplished, is a question not now before us.
Again, the board of aldermen, in counting the ballots exercise no discretion except to .judge of the regularity of the ballots. If the ballots are in due form, they have no duty but to count them and declare the result. That duty the respondents have performed.
We are of the opinion that the petition must be denied and dismissed.