156 Mass. 403 | Mass. | 1892
The use of the writ of mandamus to try the title to an office is unusual, but we are of opinion that in such a case a.s this it affords the speediest and best method of settling the dispute of two rival claimants of a municipal office. We have stated the reasons for this opinion in the recent case of Luce v. Board of Examiners, 153 Mass. 108, and the use of the writ for this purpose is not without authority. The report finds that all the allegations of the petition were proved. The material facts are, that at a joint convention of the city council held on January 5, 1892, pursuant to the St. of 1873, c. 154, § 13,
The report finds “ that the board of aldermen refused to accept the bond of the petitioner for the proper performance of the duties of his office, on the ground that he was not elected to the office of tax collector, and that the respondent Proulx was elected.”
It is not necessary to decide whether the amendment of. the record by the board of aldermen was within their power, or, if it was, whether it was competent for the justice who heard the case to find that there were no other reasons than, those mentioned in the first record. We cannot compel the board of aldermen to approve any particular bond, because it must be á bond “with sureties to their satisfaction.” As we have held that the petitioner was duly elected, unless he is thereafter removed for cause, it is the duty of the board of aldermen to approve his bond, if it is in such sum as they require, and is with sureties to their satisfaction, and in the form required by law. A writ of mandamus should issue declaring Daniel Proulx not elected to the office of collector of taxes, and commanding him to refrain from usurping the office and performing its duties, and declaring James C. Keough to have been duly elected to the office, and commanding the board of aldermen to .consider the bond presented by him, and to accept or reject it as it may or may not be found satisfactory to them, and in the form required by law.- So ordered.
The material portions of this section are as follows: “The city council [of Holyoke] shall, annually, as soon after their organization as may be convenient, elect by joint ballot in convention, a collector of taxes [and other officers], who shall hold their offices respectively for the term of one year, and until their successors shall be chosen and qualified; provided, however, that either of the officers named in this section may be removed at any time by the city council for sufficient cause. Vacancies occurring in the above named offices may be filled at any time.”
The first convention was “Joint Convention, January 5, 1892”; the second, “ Meeting of City Council, January 19, 1892, in Joint Convention.” The record of this last convention is as follows:
“The opinion of C. T. Callahan, as city solicitor, upon the matter of the balloting for and election of collector of taxes at the meeting of January 5th, current, was read by the clerk.
“ Voted, that the said opinion be not received.
“ Alderman Laporte moved that the opinion of William Hamilton, as city solicitor, touching the said matter of the action of the city council in the election of the collector of taxes, be read.
“ The mayor suggested that as said matter was not specified in the order providing for the joint convention, that no action could properly be taken thereon except by the unanimous consent of the city council.
“ Alderman Laporte observed that perhaps such consent would be obtained, and on the said motion being seconded and no objection being offered thereto, it was put by the mayor and carried.
“ The said opinion of City Solicitor Hamilton was read by the clerk, and it was voted that it be received, except that portion of it which reflected upon ex-City Solicitor Callahan.
“ A motion was made by Alderman Laporte, and seconded, that the third ballot, being the one which resulted in the choice of James C. Keough as collector of taxes, at the meeting of January 5th, be declared void. The mayor declined to entertain the motion, upon the ground that it was beyond the power of the city council to undo or annul the proceedings concerning the election of the collector of taxes, and that the matter was beyond the jurisdiction of the city council.
“ Alderman Higginbottom expressed the same opinion, and claimed that
“ Councilman Miles claimed that the proposed action was in the nature of reconsideration, and could not legally take place until the same number of members were present as at the original meeting.
“ Alderman Laporte appealed from the decision of the mayor upon the above motion, and on a roll call for the yeas and nays the said decision was not sustained, the vote thereon being 9 yeas and 18 nays.
“ The motion of Alderman Laporte, above referred to, was then put by the mayor and carried on a call of the roll by a vote of 18 yeas against 9 nays.
“ C. T. Callahan appeared before the city council at this juncture, and announced that he was the attorney of James C. Keough, and desired to be heard on behalf of his client.
“ Alderman Laporte and Councilman Fortier objected to hearing Mr. Callahan, and Alderman Connors stated that he could see no advantage to be gained by the city council from hearing the attorney.
“ Mr. Callahan informed the city council that he and his client did not ■ acquiesce in the proceedings of this meeting.
“ Voted, on a call of the roll for the yeas and nays, by a vote of 18 yeas against 9 nays, that the vote called ‘ scattering,’ cast on the second ballot for collector of taxes at the meeting of January 5th, current, be counted for Daniel Proulx, and that he, having received fourteen votes . . . besides on said ballot, be declared elected collector of taxes on said second ballot.
“ Mr. Callahan announced that he protested on behalf of his client against the action of the city council taken at this meeting respecting the office of collector of taxes.”