Cotton v. Phillips
| Decision Date | 07 December 1875 |
| Citation | 56 N.H. 220 |
| Parties | Cotton v. Phillips. |
| Court | New Hampshire Supreme Court |
Incompatible offices---Mandamus.
The offices of prudential committee and auditor of a school district are incompatible. A person who is elected to both offices at the same meeting, and accepts the latter, thereby declines the former
PETITION to the superior court for a writ of mandamus. The petitioner represents that on March 31, 1875, he was and still is an inhabitant, legal voter, and tax-payer in school district No. 19, in Wolfe-
borough that at a legal meeting of the voters of said district, held on March 31, 1875, he received a plurality of the votes cast on the second ballot for member of the prudential committee of said district, and was duly elected, and should have been declared elected, and ought now to be in possession and enjoyment of said office; that on April 1, 1875, he took the oath of office, and filed a certificate thereof with the clerk of said district; that at subsequent ballotings at said meeting the defendants were severally duly elected as members of said committee, and severally took the oath of office, and that they refuse to recognize the petitioner as a member of said committee,---by reason whereof he is deprived of the rights and privileges of said office, and is greatly aggrieved thereby. Wherefore he prays that he may be declared duly elected a member of said committee, and for a writ of mandamus to issue, commanding the defendants to recognize him as a member of said committee, for said district, for the current year.
Phillips---protesting that the petition is informal and insufficient; that the relief prayed for is defectively set forth; that he is not bound to answer at this time; that the petition should have been made returnable at the next term instead of at a subsequent day of the present term; and that the order of notice and return thereon are defective---answered, setting forth the proceedings of the meeting of the district, held March 31, 1875, and claimed that the petitioner, by participating in the balloting when one William H. Furber was declared elected a member of said committee, and allowing himself to be voted for as a candidate at said balloting without objection or protest, had waived his own election to said office on the second ballot. The answer also sets forth that at the same meeting, after said Furber was declared elected a member of said committee and had taken the oath of office, said Cotton was elected to the office of auditor which he thereupon accepted, and took the oath of office that the duties of said two offices are wholly inconsistent; and that said Cotton, by accepting the office of auditor, in fact declined the office of prudential committee.
Yeaton has filed no answer.
The cause was submitted upon the following evidence:
At the annual meeting of school district No. 19, in Wolfeborough, holden March 31, 1875, Buel C. Carter was elected moderator of said district, and took the oath of office, and presided throughout the meeting. Alexander H. Durgin was duly elected clerk of said district, and was duly qualified in open meeting. Upon the first balloting for prudential committee Buel C. Carter received a plurality of the votes, but the moderator declared there was no choice. Upon the second balloting, Joseph L. Avery had one vote, Buel C. Carter one vote, Charles F. Parker two votes, Oliver R. Yeaton four votes, William H. Phillips eight votes, and Isaac W. Cotton nine votes, being a plurality,---but the moderator declared there was no choice.
On the third balloting, Carter had one vote, Yeaton one vote, Parker three votes, Cotton eleven votes, and Phillips eleven votes, and the moderator declared there was no choice.
On the fourth balloting, Cotton had eleven votes, and Phillips eighteen votes, and was declared elected, and took the oath of office in open meeting.
On the fifth balloting, Cotton had two votes, John G. Cate two votes, William W. Furber four votes, Henry W. Furber eight votes, and Oliver R. Yeaton nine votes, and the moderator declared there was no choice; but, on being reminded that a plurality of votes only was necessary to elect school district officers, said Yeaton was declared by the moderator elected, who thereupon, in open meeting, took the oath of office. An examination was then made of the clerk's minutes of the previous ballotings...
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... ... 225 to 227; Moore v. Lusk, 48 ... Mo. 242; State v. Draper, 45 Mo. 355; Howard v ... Shoemaker, 35 Ind. 111; Cotton v. Phillips, 56 ... N.H. 220; People v. Hanifan, 96 Ill. 420; Stubs ... v. Lee, 64 Maine, 195; Shell v. Cousins, 77 Va ... 328. (2) Let us ... ...
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Advisory Opinion to Governor
...clear impropriety under the common law. See State ex rel. Metcalf v. Goff, 15 R.I. 505, 507, 9 A. 226, 227 (1887), Citing Cotton v. Phillips, 56 N.H. 220, 223 (1875). As the rule no doubt suggests, it is of no matter that a public officer of high personal integrity would certainly avoid the......
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...the plaintiff claims an incompatibility of office and conflict of interest not for the purpose of removal of the officer as in Cotton v. Phillips, 56 N.H. 220, and School Dist. No. 6 in Andover School Dist. No. 6 v. Carr, 55 N.H. 452 but as a direct attack on the decision of the Commission.......
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