Attorney General v. Crocker
| Decision Date | 09 January 1885 |
| Citation | 138 Mass. 214 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Attorney General v. William P. Crocker & others |
Argued September 16, 1884.
Argued September 17, 1884.
Franklin.
Information dismissed.
W. S B. Hopkins, for the relators.
W Gaston, (D. W. Bond with him,) for the respondents.
OPINION
This is an information in the nature of a quo warranto to try the title of the respondents, respectively, to the offices of town clerk and selectmen of the town of Montague, which it is alleged they have usurped. The facts, as they appear from the report of the single justice of this court who heard the case, are as follows:
Atthe annual town meeting on March 3, 1884, a moderator was duly chosen and tellers were duly appointed by him to aid in checking the names of the voters and in assorting and counting the votes, according to the St. of 1883, c. 229. After the votes for town officers, including the town clerk, were all cast, and after they were assorted and counted by the tellers, and while they were putting the results into form for announcement to the meeting, the moderator and clerk resigned their offices. No question is made that their resignations created legal vacancies in their offices, and we have not considered the effect in that respect. After their resignations, other persons acted as moderator and clerk; it was voted to hear the report of the tellers, and they reported the votes, which showed the election of the respondents and other officers; and the votes were announced, and the officers declared elected.
The principal objection to the title of the respondents to their offices is, that the proceedings of the meeting after the resignation of the moderator and clerk were illegal and void, because their successors were not legally chosen.
Another objection is, that the authority of the tellers ceased with that of the moderator who appointed them. But they were appointed to assist the moderator officially, and not personally, and their authority would survive a change in the person of the moderator. They continued to be lawful tellers.
It is also objected that the record does not show that the check list was used in the choice of the second moderator, or that he was chosen by ballot, but only states that he was elected. After the first moderator had been twice chosen, the second time with the use of the check list, the admitted record shows that it was "voted that the check list be used in the election of town officers, and upon the question of granting licenses, and no other, without a vote of at least one half the meeting." There is no other record of the use of the check list. Its use was as necessary to the election of the selectmen and town clerk as of a moderator. Pub. Sts. c. 27, § 80; c. 7, § 9. In Andrews v. Boylston, 110 Mass. 214, a record, "Voted, to reestablish the school district system," was held insufficient, the statute requiring the votes of two thirds of all the legal voters present and voting. The court say, "The form of expression is that which is ordinarily used in setting forth the vote of a mere majority; and there is nothing on the face of the record to indicate that either the officers or the voters had their attention called to the fact that the law required a two-thirds vote." See also Morrison v. Lawrence, 98 Mass. 219; Judd v. Thompson, 125 Mass. 553. In the case at bar, the matter concerns the mode of voting, and not the essentials of the vote; and the admitted record shows that the meeting intended to use the check list, and that the fact that it was required was in the minds of the voters. We are inclined to the opinion that the record, if competent, shows that the second moderator was an officer de jure. See Howard v. Proctor, 7 Gray 128. We do not decide this, because the reasons which render the record competent show that the moderator was a good officer de facto, if not one de jure.
The principal question relates to the town clerk. A moderator and clerk are essential to a town meeting for the choice of town officers, and there cannot be a record without a clerk. In the absence of a moderator, and for the choice of one, the clerk presides, and, in his absence, the selectmen. Pub. Sts. c. 27, §§ 58, 59. At that meeting, the clerk to be chosen was voted for with the selectmen and other officers, and the vote had not been declared when the moderator and clerk resigned, and their offices are assumed to have become vacant. The selectmen appear not to have been present. After several hours, one of the selectmen came into the meeting and read a paper signed by the selectmen as follows: Said Crocker was duly sworn, and made a record in the book of town records of his appointment and of the subsequent doings of the meeting, the last entry, made after that of the vote to adjourn, being of his own resignation as clerk pro tempore. This record is sufficient, if competent, to show that the respondents were duly elected. On March 6, a town clerk was duly appointed by the selectmen and sworn, who, on March 8, administered the oath of office to the respondents, and made a record thereof. No objection is made that the respondents were not duly qualified, if elected; and the question is whether the record made by William O. Crocker, as clerk, is competent, -- in other words, whether the act of the meeting in receiving the report of the tellers and declaring the election of the respondents, was invalid for want of officers, and incapable of proof for want of a record. The former clerk completed the record to, and including, his own resignation. What is contained in the disputed record is the appointment and qualification of the clerk pro tempore, the election of a moderator, the vote to hear the report of the tellers, and their report that the vote was announced and the election declared; that one voter protested as to the validity of their election; and the vote to adjourn to March 10.
That William O. Crocker had no lawful authority to act as town clerk at the meeting is clear. Section 80, of the Pub. Sts c. 27, provides that the election of town clerks shall be by written ballots. Section 97 provides that, when there is a vacancy in the office of town clerk at a town meeting, or when he is not present, the voters present shall elect a clerk pro tempore in the same manner as town clerks are chosen, who shall be sworn to discharge the duties of said office at said meeting. Section 98 provides that, when other duties than those mentioned in the preceding section are required to be performed by a town clerk, and there is a vacancy in the office, or the clerk is prevented from performing such duties, the selectmen may in writing appoint a clerk for the performance thereof, who shall be sworn, and shall make a record of his appointment. The selectmen had no authority to appoint a clerk for the town meeting, and the appointment made by them gave the appointee no authority to act as such. But this is not a proceeding against him to test his title to the office, but one in which the rights of third persons and of the public, acquired by virtue of his official acts, are concerned, as to whom the official acts of a public officer de facto are as valid as if he held the office de jure. There can be no doubt that the principle applies to the office of town clerk. Suppose a town clerk to be regularly elected and qualified, except that the check list was not used, and to exercise the functions of the office during the year for which he was so elected. He would at no time have been lawfully the town clerk, or able to maintain his own right to the office; but his official acts, whether in recording the doings of town meetings, or in the performance of other duties of the office, would be as valid, as to all other parties, as if he had been town clerk de jure. The illustration shows the...
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