State v. Phillips

• Citation: 11 A. 274,79 Me. 506
• Parties: STATE v. PHILLIPS.
• Decision Date: 22 November 1887
• Court: Supreme Judicial Court of Maine (US)

11 A. 274

79 Me. 506

STATE

v. PHILLIPS.¹

Supreme Judicial Court of Maine.

November 22, 1887.

On information of the attorney general in the nature of quo warranto. Judgment of ouster was rendered at nisi prius, and the respondent alleged exceptions. For former report of this case, see 10 Atl. Rep. 447.

Wiswell & King, for the State. John B. Redman, for respondent.

LIBBEY, J. At a meeting of the aldermen of the city of Ellsworth, held on the fifteenth of March, 1887, for the purpose of electing city officei'3, a ballot was taken for second assessor of taxes, and Albert G. Blaisdell was declared elected, and his election was entered of record. The meeting then took a recess until the next day, March 16th, when, on motion therefor, it was voted to reconsider the election of second assessor, and a new ballot was taken, and the respondent was declared elected. Blaisdell took the necessary oath of office on the first day of April, 1887.

On the foregoing facts the court held that Blaisdell was duly elected, and that the election of Phillips, the respondent, was void, and ordered judgment of ouster against him. To which rulings exceptions were taken.

We think the rulings of the court below correct. The election of assessors was required to be by ballot. While a municipal body having the power of election may set aside a ballot by which it appears that an election is made, for some irregularity or illegality before the election is declared, (Baker v. Cushman, 127 Mass. 105,) we are aware of no authority which holds that, when the election by ballot is declared and entered of record, it may be reconsidered at an adjourned meeting on a subsequent day, and a new election had. When the aldermen balloted and declared the election of Blaisdell, and it was recorded, their power over the election to that office was exhausted, unless he should decline to accept it. He did not decline to accept, and the aldermen could not deprive him of the office, except by removal in the manner provided by law. There being no vacancy in the office when the respondent was elected, his election was void.

Exceptions overruled; judgment of ouster affirmed.

PETERS, C. J., WALTON, DANFORTH, EMERY, and HASKELL, JJ., concurred.

1 Reported by Leslie C. Cornish, Esq., of the Augusta bar.