Mansfield v. O'Brien

• Citation: 271 Mass. 515,171 N.E. 487
• Parties: MANSFIELD v. O'BRIEN et al.
• Decision Date: 02 June 1930
• Court: United States State Supreme Judicial Court of Massachusetts

271 Mass. 515

171 N.E. 487

MANSFIELD

v.O'BRIEN et al.

Supreme Judicial Court of Massachusetts, Hampden.

June 2, 1930.

Case reserved from Supreme Judicial Court, Hampden County.

Original petition for writ of mandamus by George E. Mansfield, Jr., against Stephen D. O'Brien and others.

Petition dismissed.

Harold P. Small, of Springfield, for petitioner.

William A. McDonough, of Springfield, for respondent Stephen D. O'Brien.

George F. Leary, City Sol., and David E. Lavigne, Asst. City Sol., both of Springfield, for respondent City Council of City of Springfield.

RUGG, C. J.

This petition for a writ of mandamus is designed to try the title to the office of an assessor of the city of Springfield. The charter of the city of Springfield requires the city council to elect by ballot in joint convention in each year an assessor to hold office for the term of three years from the first of April in the year of election. St. 1852, c. 94, § 8, as amended by St. 1873, c. 126, § 2. It is provided by G. L. c. 39, § 3 that ‘No election of a city officer by a municipal body or board shall be valid unless made by a viva voce vote, each member present answering to his name when called by the clerk or other proper officer stating the name of the person for whom he votes, or that he declines to vote. The clerk or other proper officer shall record every such vote.’ This provision, first adopted by St. 1899, c. 129, as amended by c. 170, was a general law manifestly intended to apply to all cities save those having exceptional charters or other special laws. It must be deemed to control the charter provision of the city of Springfield already referred to. Logan v. City of Lawrence, 201 Mass. 506, 511, 88 N. E. 9;Cassidy v. Transit Department of Boston, 251 Mass. 71, 74, 146 N. E. 357. Compare Copeland v. City of Springfield, 166 Mass. 498, 504, 44 N. E. 605.

The board of aldermen and the common council of the city of Springfield met in joint convention on February 3, 1930, for the purpose of choosing an assessor to hold office for a term of three years from April 1, 1930. The city clerk acted as clerk of the joint convention, having previously prepared and having before him the names of all members of the city council. Each member present voted viva voce, answering to his name when called by the city clerk and stating the name of the person for whom he voted. The votes thus recorded by the city clerk disclosed that there were twenty-five members present and voting and that of these votes the petitioner received fourteen and the respondent O'Brien eleven. The presiding officer then announced, ‘By your vote you have chosen George E. Mansfield, Jr., assessor.’ Following this there was confusion among the members of the joint convention. When it has subsided two members were recognized by the chair and criticized the action of the session, but neither of them offered any motion. Another member was then recognized and stated that he ‘doubted the vote.’ Thereupon a recess was taken. At the expiration of the recess another member of the joint convention arose and doubted the vote. The councilman was had before the recess first doubted the vote on inquiry said that he doubted the tabulation of the city clerk and doubted the vote, and that he kept a record himself which differed from the record of the city clerk; on his motion it was unanimously voted that a new roll call vote be taken. This then was ordered by the president and the city clerk proceeded as in the first roll call. On information from the city clerk of the result the presiding officer then announced that the vote as tabulated now stood ‘Stephen D. O'Brien, thirteen. George E. Mansfield, twelve.’ The record as kept by the city clerk discloses that on the neither of whom made any motion or expressed any doubt about the correctness of the first tabulation, voted for the petitioner but on the second roll call voted for the respondent O'Brien, and that no member of the joint convention other than these two voted differently on the second from his vote on the first. The record does not disclose that any member doubted the correctness of the record as to his own personal vote. Other business was transacted and then the convention dissolved. The question to be decided is who on these facts was elected assessor.

It is to be noted that this procedure was something more than a mere verification of the first vote taken. Such verification would have been accomplished by calling anew the roll of members with a statement of the record already made as to the vote of each individual and an inquiry whether that record was in conformity to the vote in truth given viva voce. It must be assumed on this present reservation that what happened was a reconsideration of the first roll call and a new roll call had as upon a new election held subsequently to and in pursuance of reconsideration of the first vote. Although the proceedings were informal, the inference is irresistible that this in fact was what took place. George v. Inhabitants of Second School District in Mendon, 6 Metc. 497, 509;Morse v. Dwight, 13 Allen, 163, 166, 167. Compare Woodbridge v. Mayor & Aldermen of Cambridge, 114 Mass. 483, 486;Adams v. Townsend Schoolhouse Building Committee, 245 Mass. 543, 139 N. E. 803.

It is a general principle that a parliamentary or deliberative body may during the same sitting treat proceedings already had as irregular and invalid, or may, unless some right of a third person may have intervened, reconsider action already taken and then take new and different action. This principle has been applied to elections as well as to measures of a more strictly legislative character. That principle had been declared and applied to a variety of situations prior to the enactment of what is now G. L. c. 39, § 3. For example, in Baker v. Cushman, 127 Mass. 105, this case was presented; there was a requirement that a city clerk be elected by joint ballot of both branches of the city council; on the first ballot, thirty-one members voting, thirty-two votes were cast; this election...