Hill v. Goodwin

• Decision Date: 21 March 1876
• Citation: 56 N.H. 441
• Parties: Hill v. Goodwin.
• Court: New Hampshire Supreme Court

56 N.H. 441

Hill v. Goodwin.

Supreme Court of New Hampshire

March 21, 1876

Mandamus---Elections---Correction of town records---Government of townmeetings.

It is the duty of a town-clerk to record the votes as publicly declared by the moderator. His duty in this respect is purely ministerial.

A writ of mandamus will issue to compel a town-clerk to record the proceedings of a town-meeting, as publicly declared by the moderator;---also, to correct his record to conform to such declaration.

The moderator has the power to prescribe rules for the government of the meeting over which he presides, subject to be altered by the town. The rules of parliamentary law (so called) are not in force for the government of town-meetings, except so far as prescribed by the moderator, subject to alteration by the town

HILLSBOROUGH COUNTY

PETITION for a writ of mandamus, filed by ten of the inhabitants and legal voters of the town of Mason, complaining that the defendant, who is town-clerk of said town, omitted to record the proceedings of the annual meeting, held in the afternoon of March 9, 1875, and that the record, as made by him, of the proceedings in the forenoon is incorrect, and praying that he be commanded to amend his record to correspond with the facts. The answer of the defendant admits that he

omitted to record certain proceedings that took place in the afternoon, for the reason that the adjournment in the forenoon was illegal, and therefore that no legal meeting was held in the afternoon; and by reason of certain other irregularities alleged to have taken place. The facts sufficiently appear in the opinion of the court.

Wadleigh & Wallace, for the petitioners. Cross & Burnham, for the defendants

SMITH J

A very large amount of testimony has been taken in this case, much of which is conflicting. I have endeavored to consider the same with all the care the importance of the case demands. The facts are these:

The annual meeting in Mason, on the second Tuesday of March 1875, was duly warned. John S. Spaulding, one of the petitioners, was elected moderator, and acted as such. Daniel Goodwin, the defendant, was elected town-clerk, and accepted the office. Agreeably to a vote, Article 2 was taken up, and the meeting proceeded to vote for state and county officers. After most of the voters had thrown their ballots, a discussion arose whether to proceed to the choice of representative under Article 4, or selectmen under Article 3. Several motions were made without being put to vote. Considerable time was consumed in the discussion of what had been the practice of the town in years previous, when a new motion to proceed to the election of selectmen was made and declared carried. The meeting then commenced to vote for first selectman. A few votes had been thrown, when a motion was made and adopted to use the check-list in voting for first selectman. Whereupon the ballot-box was emptied of the votes that had been cast, and a new balloting commenced, the clerk checking the names of those voting. When some fifteen or twenty votes had been thrown, the clerk inquired of the moderator whether persons had not voted whose names had not been checked. He also informed the moderator he could not check the names of those voting unless better order was preserved; and soon he declined to check any more names alleging as a reason that he could not do it on account of the disorder. The moderator thereupon informed the meeting that the clerk refused to check the names of those voting. A motion was then made to adjourn, which was defeated. The motion was immediately renewed, and again defeated. Immediately a motion was made to adjourn to 2 o'clock P. M., which was adopted, and an adjournment took place till that hour. No new business was introduced or transacted between these motions to adjourn. It is a controverted question whether the meeting was disorderly while the voting was going on, and a good deal of evidence has been taken upon this point. Many witnesses on the part of the defence testified that the noise and confusion were very great, occasioned by several persons attempting to speak at the same time, and by the rush of voters about the hall and to the desk to

deposit their votes; and that one of the speakers, while addressing the meeting, was hissed by one or more of the audience. An equal number of witnesses for the plaintiffs testified that there was no more disturbance than usual on such occasions, and that there was no difficulty in readily and properly transacting the business of the meeting. Any attempt to reconcile this evidence, or to arrive at the exact truth, is attended with difficulty; but the evidence, upon the whole, seems to point to the conclusion that there was no such confusion or disturbance as to obstruct the business of the meeting. There is no evidence from any of the witnesses that any violence or force was used or offered, or that any intimidation of voters was attempted, or anything said or done that prevented the full and free action of the voters. The evidence fails to show that there was such disorder or confusion as justified the clerk in refusing to check the names of those voting.

The meeting was called to order at two o'clock in the afternoon, by the moderator. Here again the evidence is conflicting, the witnesses for the defence testifying that the ballots thrown for first selectman before the adjournment were not taken from the box, nor any information given the meeting why the balloting proceeded without using the check-list. On the other hand, witnesses for the plaintiffs testify, with equal positiveness, that the moderator informed the meeting that the balloting must proceed without the check-list, because of the refusal of the clerk to check the names; and that thereupon the ballot-box was emptied of the votes thrown before the adjournment, and a fresh balloting for first selectman commenced. All the witnesses do, however, agree, that no objection was made by any one to proceeding without using the check-list, and that the town-clerk and selectmen made no remark or explanation upon the subject to the meeting. "Ceteris paribus, the oath of one who says he saw a thing done, is more reliable than the oath of another who was present and did not see it. It does not follow that it did not happen because he did not see it;---and this is particularly true, when we consider the confusion and want of order, and inability to understand what is done, which usually prevail in town-meetings." GILCHRIST, C. J., in Kimball v. Lamprey, 19 N.H. 215. Upon weighing the whole evidence, and sifting it as well as it is possible to do, it appears to be more probable than otherwise that the witnesses are not mistaken who testify that the moderator did inform the meeting in the afternoon that the clerk refused to check the names of the voters, and that the moderator thereupon emptied the ballot-box of the ballots thrown before the adjournment.

The balloting for first selectman thereupon commenced for the third time, and proceeded without the use of the check-list, without objection from any source, and without disturbance, and resulted in the choice of John S. Spaulding. Hiram D. Richardson and Luther A. Blood were elected second and third selectmen, respectively. Messrs. Russell and Barrett, of the old board, and the clerk, did not vote, and refused to assist the moderator in sorting and counting the votes, and the clerk declined to make any record of the proceedings. The votes

for state and county officers were then sorted and counted, the old board of selectmen and clerk aiding therein; and the result was publicly declared by the moderator, and recorded by the clerk. A motion was then made to adjourn, and voted down. The motion was immediately renewed, and again voted down. The motion was again made, when the moderator inquired "To what time?" One person cried out, "To the 4th of July;" another, "To 9 o'clock this evening;" and a third, "To 9 o'clock to-morrow morning." The moderator stated the motion to be "to adjourn to 9 o'clock to-morrow morning." put the same to a vote, and declared it carried, and pronounced the meeting adjourned to nine o'clock of the next forenoon. The vote was not questioned. Russell and Barrett were present during the whole day, in the desk occupied by the moderator and town-clerk. Dana D. Goodwin, the third member of the old board, and son of the defendant, was absent from the state.

During the evening of the ninth of March, Russell, Barrett, and Goodwin took down, or caused to be taken down, the copies of the warrant and check-list posted at the town-house and post-office, being the only copies in existence. The same evening Russell and Barrett posted a warrant for a meeting to be held March 27, to transact the usual town business, except that no article for the choice of town officers was inserted. The town-house was locked by the selectmen, and the warrant and check-list taken by Goodwin to his house, and the keys left there with his son Charles, with instructions not to deliver them to any person except upon the order of the selectmen. On the morning of March 10, Goodwin went into the state of Massachusetts, and remained till night. Russell and Barrett remained away during the day, in another part of the town, two or more miles from the town-house. At the hour of nine o'clock, or soon after, the voters assembled at the town-house, according to adjournment, but found the door locked. The moderator, with Richardson, went to the house of Goodwin, in the immediate vicinity, for the keys, checklist, and warrant; and the moderator requested the keys of Goodwin's son, who was a voter, which he refused to surrender. A window of the town-house was then raised, through which entrance was...