Lead Opinion

CARROLL COUNTY. The evidence shows that Cotton, Phillips, and Yeaton were duly elected prudential committee. But no one understanding that a plurality of votes would elect, it was not discovered that Cotton *Page 226 had been elected until after the defendant, Furber, had also been elected, and the board, consisting of Phillips, Yeaton, and Furber, qualified by taking the oath of office in open meeting; after which Cotton was elected auditor, and accepted the office by being sworn, in open meeting. It does not appear to have been discovered that he had been elected prudential committee till after all this had been done. No objection is shown to have been made to the election of Furber, but, on the contrary, all the voters present acquiesced in the status in which matters were left at the adjournment of the meeting.

We have just decided, in Cotton v. Phillips, ante, 220, that Cotton, by accepting all incompatible office, disqualified himself from holding that of prudential committee. Whatever of irregularity existed in the election of prudential committee was cured by the general acquiescence of the voters in the doing of the district at that meeting, and by the action of Cotton in accepting the office of auditor, by which he must be regarded as having declined that of prudential committee. Under these circumstances I think the validity of Furber's election cannot be questioned.

Whether this proceeding should have been brought in the name of the attorney-general, it becomes unnecessary, therefore, to inquire.

Concurrence Opinion

I fully agree with what has been said by my brother SMITH. I do not understand that in this case any intentional wrong is complained of in the government of the meeting by the moderator. When the voting commenced, he understood that the election was by major vote, whereas, in point of fact, it was by plurality. I think the party ought to have discovered his rights and claimed them before another person had been elected and qualified, or not at all. However this may be, his acceptance of the office of auditor clearly disqualified him, and was a waiver of any right he might have to the office of prudential committee.

LADD, J., concurred.

Writ denied.