Littlefield v. Newell

• Decision Date: 02 January 1893
• Citation: 85 Me. 246,27 A. 110
• Parties: LITTLEFIELD, Attorney General, ex rel. CALLAHAN et al. v. NEWELL et al.
• Court: Maine Supreme Court

27 A. 110

85 Me. 246

LITTLEFIELD, Attorney General, ex rel. CALLAHAN et al.

v. NEWELL et al.

Supreme Judicial Court of Maine.

Jan. 2, 1893.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Petition by Charles E. Littlefield, attorney general, at the relation of John H. Callahan and others, against William H. Newell and others, mayor and aldermen of the city of Lewiston, to compel defendants to convene in joint session for the election of subordinate officers pursuant to city ordinances. To the order granting a peremptory writ, defendants bring exceptions. Exceptions overruled.

White & Carter and Savage & Oakes, for plaintiffs.

George, C. Wing for defendants.

WHITEHOUSE, J. This is a petition for a writ of mandamus filed by Charles E. Littlefield, attorney general, on relation of John H. Callahan, John Ryan, and Edwin F. Scruton, three members of the common council of the city of Lewiston, against the mayor and seven aldermen, composing the board of mayor and aldermen of that city.

By the charter and ordinances of that city, it is made the duty of the two branches of the city government, styled, respectively the "Board of Mayor and Aldermen" and the "Common Council," to meet in joint convention annually on the third Monday in March, or as soon thereafter as may be convenient, for the purpose of electing all subordinate officers not chosen by the people. By the uniform practice of 29 years this convention has been held and such officers elected on the third Monday of March, and by the act of 1873 the time for the election of a water commissioner was expressly limited to the month of March.

On the third Monday of March, 1892, the common council were ready and willing to perform this duty on their part in accordance with their oaths and the established usage, and three times between that date and the 11th day of April, formally asked for a joint convention by passing and transmitting to the mayor and aldermen the customary order for that purpose; but the aldermen, by a vote of four to three, on each occasion refused to concur in giving the order a passage, and the four aldermen opposing it declared their purpose to persist in such refusal, and thus prevent the election of city officers.

Thereupon, on the 5th day of April, the common council passed an order appointing the relators a committee of that body authorized to employ appropriate measures to compel the aldermen to meet in joint convention. On the relation of the committee, the attorney general, on the 14th of April, filed a petition in the supreme judicial court, setting forth in detail the facts constituting the grounds of their claim, duly verified by the affidavit of the relators, and asking that a writ of mandamus be issued against the mayor and aldermen, commanding the mayor to call a meeting of the city council, and the aldermen to assemble with the common council in joint convention, and proceed to the election of city officers. On this petition an order for notice to the defendants was granted by the court, returnable on the 3d day of May, requiring the defendants to show cause why the prayer of the petitioner should not be granted. To this petition the mayor and the four aldermen who opposed a joint convention filed a written answer, which admitted all the material facts alleged in the petition, and failed to overcome the prima facie case made by the sworn statements of the relators. The petition was therefore granted, and an alternative writ of mandamus, carefully prepared by the relators' counsel, was issued by the court against the mayor and seven aldermen, composing the board of mayor and aldermen. As the petition upon which the writ issues is not deemed a part of the pleadings, the alternative writ, standing in the place of the declaration in an ordinary action at common law, was properly made sufficient in itself to show precisely what was claimed, and the circumstances under which the claim was made. It fully and clearly recited all the facts deemed requisite to entitle the relators to the relief claimed, and commanded the mayor to call a meeting of the city council on the 6th day of May at 7.30 o'clock in the afternoon, and the seven aldermen to assemble with the common council in joint convention, and proceed to the election of the officers named in the petition, or show cause for their refusal so to do. The joint convention was not called or held as required by the writ, but on the 9th day of May two returns were made to the writ, one signed by the three aldermen who favored a joint convention, and the other by the mayor and the four aldermen who opposed it. In the former the three aldermen assert their willingness to meet the council in joint convention, and their desire to obey the mandate of the court, but say they are opposed by a majority of the board, and are therefore powerless to act in the premises. The contesting defendants, in their return to the writ, as in their answer to the petition, admit all the material facts stated in behalf of the relators, and do not pretend that it has ever been impracticable or inconvenient for them to participate in a joint convention, or assign any reason whatever for their refusal to perform this important public duty on any of the occasions when invited so to do by the common...