Baker v. Cushman

• Decision Date: 27 June 1879
• Parties: William S. Baker v. James M. Cushman
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 105

William S. Baker v. James M. Cushman

Supreme Court of Massachusetts

June 27, 1879

Suffolk. Petition for a writ of mandamus to compel the delivery of the books, papers and records, appertaining to the office of city clerk of the city of Taunton, to the petitioner, who claimed to have been duly elected city clerk for the present year, in accordance with the act to establish the city of Taunton, St. 1864, c. 209, § 8, which provides that the city council (which consists, when full, of eight members of the board of aldermen and twenty-four members of the common council) shall annually, as soon as may be after its organization, elect by joint ballot a city clerk and other city officers for the ensuing year. Hearing before Endicott, J., who made a report of the case for the determination of the full court, so much of which as is material to the understanding of the point decided was as follows:

On January 6, 1879, the eight aldermen and twenty-three of the common council chosen for that year duly met in convention and were qualified, and on the evening of the same day again met in convention for the purpose of electing a city clerk and other officers. Two ballotings were had for the election of city clerk; on the first ballot, thirty-one members voting, thirty-two votes were cast, of which the petitioner had seventeen, the respondent fourteen, and Laurens N Francis one; the election was declared void, no one objecting to such declaration. By unanimous consent, no objection being made by any member of the convention, the convention proceeded to a second balloting, when thirty-one votes were cast, of which the respondent had seventeen and the petitioner fourteen; and then, in joint convention, no one objecting thereto, the respondent was declared duly elected city clerk for 1879, and a record thereof was made at the time in the city books, and the convention adjourned without day.

So much of the record in the city books as concerns this election was as follows: "Upon motion, a ballot was taken for city clerk. The whole number of votes cast was thirty-two (32). William S. Baker had seventeen (17), Laurens N. Francis had one (1), James M. Cushman had fourteen (14). The whole number of votes cast being thirty-two (32), and the number of qualified members being only thirty-one (31), the vote was declared void, and the convention proceeded to ballot again with the following result: Whole number of...