Commonwealth v. Smith

• Decision Date: 04 March 1882
• Citation: 132 Mass. 289
• Parties: Commonwealth v. Lorenzo Smith
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 289

Commonwealth v. Lorenzo Smith

Supreme Court of Massachusetts

March 4, 1882

Argued October 25, 1881

Dukes County. Information in the nature of a quo warranto, filed April 1, 1880, by the Attorney General in behalf of the Commonwealth, and at the relation of Benjamin Clough alleging that the defendant was usurping the office of county commissioner of the county of Dukes County.

At the hearing before Morton, J., it appeared that the defendant's title to his office depended upon the validity of the notice of the annual meeting held in the town of Gay Head on November 4, 1879, for the election of state and county officers, he having received four hundred and twenty-nine votes, including twenty-four votes cast for him in Gay Head, and Clough, the relator, having received four hundred and twenty one votes. On the question of the validity of this notice the judge found the following facts, subject to objections as to their competency:

More than seven days before the day of the annual election, a notice, of which the following is a copy, was posted by Charles H. Mingo, chairman of the selectmen, on the door of the meeting-house in Gay Head:

"NOTICE.

To notify the inhabitants qualified to vote in Town affairs to meet at the school-house on the forth day of November next at ten o'clock A. M. to vote for Government officers. Polls will be open from ten o'clock A. M. until two P. M.

"Gay Head, Oct. 25th, 1879.

Charles H. Mingo.

Thomas Jeffers."

Another notice, like the above in every particular excepting that it did not have the name of Thomas Jeffers subscribed, was posted on the school-house more than seven days before election day. There was no other warrant or notice of the meeting, and no person was appointed by the selectmen to notify the meeting. There were no by-laws of the town prescribing how warrants for meetings should be served; but it had been the usual custom of the town to call meetings by posting the warrant or notice in some public place seven days before the day of the meeting. Charles H. Mingo and Thomas Jeffers, who signed said notice, were two of the three selectmen of the town.

On November 4, 1879, the meeting was held at the school-house and the notice posted on the outside was taken down and read by the town clerk at the opening of the meeting at ten o'clock A. M. The polls were opened at ten A. M. and kept open until two P. M., and votes were cast and received for governor and all other officers voted for at annual elections, including county commissioner. All the proceedings of the meeting were regular and in due form, except as above stated. The whole number of registered voters in said town at that time was thirty-three. Of this number there were present at the meeting twenty-five, of whom twenty-four voted for the defendant and one did not vote for any person. Of the other eight who were not present at the meeting, two were absent at sea and had been so absent at sea for more than two weeks prior to the meeting, one was confined to his bed at his house by sickness so that he was unable to attend the meeting, one was absent at work in another town some twenty miles distant, and had been so absent for more than two weeks prior to the meeting, and both the one last named and the remaining four had been verbally notified in fact of the time and place of the meeting, and that a county commissioner was to be voted for, but did not choose to go, and did not remain away from said meeting on account of any want of actual notice of the same.

Upon the foregoing facts, so far as they were competent, the judge was of opinion that the meeting in Gay Head was void for want of legal notice, and that the twenty-four votes cast there for the defendant should not be counted for him, and that he should be ousted from his office; but reserved the questions arising upon the foregoing facts for the determination of the full court.

Information dismissed.

J. Brown, for the Commonwealth.

H. M. Knowlton, for the defendant.

Field, J. Morton, C. J., W. Allen & C. Allen JJ., absent.

OPINION

Field, J.

The question here presented for decision is whether the votes cast for county commissioner at the election in Gay Head should be counted or rejected in determining who was elected county commissioner of the county of Dukes County at the annual election held November 4, 1879.

The alleged illegality in the election is the want of legal notice of the meeting for election. No objection is made that the meeting was not held at the proper place, or opened at the proper hour, or kept open the requisite length of time, or that all the proceedings at the meeting were not according to law.

The Gen. Sts. c. 18, § 21, provide that "every town meeting shall be held in pursuance of a warrant under the hands of the selectmen, directed to the constables or some other persons appointed by the selectmen for that purpose, who shall forthwith notify such meeting in the manner prescribed by the by-laws or a vote of the town."

Meetings for the election of national, state, district and county officers are not, strictly speaking, town meetings, but the St. of 1874, c. 376, § 21, provides that "such meetings in towns shall be called by the selectmen in the manner ordered by the towns, and the warrant for notifying such meetings shall specify the time when the polls for the choice of the several officers shall be opened, and the hour at which the polls may be closed." The provisions in the General Statutes for calling town meetings are substantially the same as in the Rev. Sts. c. 15, §§ 19-22, which were taken from the St. of 1785, c. 75, § 5. The provisions of the St. of 1874, c. 376, §§ 19-21, 24, for calling meetings for the election of national, state, district and county officers, are similar to those contained in the Gen. Sts. c. 7, §§ 2, 3, and the Gen. Sts. c. 8, § 7, and these were taken in substance from the Sts. of 1857, c. 311, 1841, c. 70, 1839, c. 42, and the Revised Statutes.

The Rev. Sts. c. 5, § 5, provide that "all town meetings, for the election of representatives in the General Court, shall be notified by the selectmen of each town, in the manner legally established in such town, for calling other town meetings," and the Rev. Sts. c. 6, § 3, require the selectmen of the several towns "in the manner directed by law for holding elections therein" to cause the inhabitants to assemble and give in their votes for representatives in Congress; and § 14 of the same chapter requires the selectmen of the several towns "in the manner prescribed by law for notifying town meetings" to cause the inhabitants to assemble and give in their votes for electors of President and Vice-President.

The St. of 1795, c. 55, § 1, in regulating the election of representatives in the Legislature of the Commonwealth, provides that "it shall be the duty of such selectmen to summon and notify such meeting in the manner there legally established for calling other town meetings," and § 2 of the same act imposes a penalty upon selectmen "who shall neglect to call meetings of the inhabitants and others privileged there to vote for the election of governor, lieutenant-governor, councillors and senators, and to give due warning of the time and place of such meetings, as required by the Constitution of this Commonwealth," &c. The Constitution of the Commonwealth as originally adopted, c. 1, § 2, art. 2, required that the meeting for the election of senators and councillors should "be called by the selectmen, and warned in due course of law, at least seven days before the first Monday in April," &c.

The statutes we have cited, as well as other provisions particularly those relating to elections to fill vacancies, all require or imply that a meeting for election must be called by a warrant issued by the selectmen, and tend to show that...