135 A. 33 | R.I. | 1926
This is a petition for a writ of mandamus to be directed to the Town Council of the town of North Providence. The petition alleges that the petitioner is a resident in and a qualified elector of said town; that at the election held in said town on November 2, 1926, the petitioner was a candidate for the office of Sixth Councilman; that it was the duty imposed by law on the respondents to go into session on the day following said election, and in open meeting count the ballots given in at said election and declare the results thereof; that notwithstanding said duty the respondents, on the day following said election, held a session of said town council and thereat opened, counted, and resealed the ballots of District No. 3 of said town, and also thereat voted that they accept the count of the moderator and clerk of said district and also voted at said session that the count of ballots by the moderators and clerks of Districts No. 1 and 2, respectively, in said town be accepted and that all candidates on the Republican ticket be declared elected. The petition further alleges that said town council *9 has neglected and refused to count said ballots as by law required.
At the time of the hearing before us the respondents demurred to the petition upon the ground that the petition was not brought with the consent and in the name of the Attorney-General. The parties being present with witnesses and ready to be heard, the question raised by the demurrer was reserved for decision and the petition was heard on its merits.
The respondents, in support of the demurrer, relied upon the authority of O'Brien v. Board of Aldermen,
At the hearing on the merits the respondents offered no evidence material to the issue. The petitioner introduced without objection an attested copy of the records of said session. The record is as follows:
"Town Council, North Providence, Nov. 3rd, 1926. Present, Messrs. Glen, Aust, Zambarano, Ponton, Thornton, Hartley and White. *10
The Ballots of District No. 3 were opened and counted and resealed, and it was voted that we accept the count of the Moderator Clerk of said District.
It was also voted that the count of the Moderator and Clerk of District No. 1 and No. 2 be accepted and that all Candidates on the Republican Ticket be declared elected.
There being no further business it was voted to adjourn.
LOUIS A. SWEET. Clerk.
A true copy,
Attest,
LOUIS A. SWEET
Town Clerk."
The facts alleged in the petition have been established. The duty of the respondents to count said ballots and declare the results thereof is clearly set forth in G.L. 1923, Chap. 10, Sec. 18, which provides as follows: "In cities other than the cities of Providence, Pawtucket, Central Falls and Newport, and in towns divided into voting-districts the boards of aldermen and town councils shall be in session on the day following any election for city, town, ward, and voting-district officers, or for any of them, and shall in open meeting count the ballots given in at such election and declare the results thereof. . . ."
On November 22, 1926, at five o'clock, p.m., the writ of mandamus, directed to said town council and the individual members thereof as set forth in the petition, may issue ordering them to hold a session of the town council of said town within twenty-four hours after the issuance of said writ and proceed with all reasonable expedition to count all of said ballots and declare the results thereof.