Ellis v. County Commissioners of Bristol , 68 Mass. 370 ( 1854 )

Shaw, C. J.

The county commissioners have the same power over their clerk as any other court of record; and their clerk, although not appointed by them, is bound to conform to their directions. Otherwise, they would be subject to him.

At the suggestion of the court, it was then agreed by the parties, that the record filed, as amended by the memorandum of the chairman of the commissioners, should be taken to be a true record, to be entered and extended at a subsequent meeting of the commissioners.

The grounds of the arguments on the question, whether the vote of Fall River was properly rejected by the respondents, sufficiently appear in the opinion, which was delivered on the 28th of October by

Shaw, C. J.

The questions are, whether upon the return of the commissioners, and their record, as amended, the prosecutor of this writ was entitled to a certificate and adjudication that he had the highest number of votes for county treasurer, and whether this question can be inquired into, under this process. We are not now to consider whether the county commissioners can be required to place the prosecutor in the office; it may be that even if he should succeed and show that he ought to have been declared duly elected, he may be obliged to resort to hisquo warranto, in order to remove the present incumbent from the office, before he can be restored. And we understand that an-application for such a proceeding is now pending. But we are satisfied that it is competent for this court, on this writ, at the instance of the prosecutor, to inquire into the facts, and to require the county commissioners to do what it was plainly their duty to do, and what it is still in their power to do, to-declare and certify, if such was the fact, that the prosecutor had-the highest number of votes for the office, as one step, and one important step, towards obtaining his right, without which he could not obtain it. And the prosecutor at present asks the court to go no further.

We proceed at once, therefore, to inquire whether the commissioners ought to have received and counted the votes of Fall River, as legal and valid; if they should have been so counted, the prosecutor, as the return shows, would have been chosen; and this is the real and sole question.

The mode of choosing county treasurers is provided for by Rev. Sts. c. 14, §§ 43 Sf seq. By § 43 they are to be chosen annually, at the annual meetings of towns. By Rev. Sts. c. 15, § 18, the annual meetings shall be held in March or April, or, by Si. 1837, c. 52, in February, if the town so vote. Recurring to Rev. Sts. c. 14, by § 44 the votes for county treasurer shall be sorted in open town meeting by the moderator and town clerk; the names of the persons voted for, and the number of votes for each, shall be recorded by the clerk in the town records; and an attested copy thereof shall be transmitted, under seal, to the county commissioners at their next meeting.

A compliance with these directions is prerequisite to the legality of the votes given for county treasurer, without a substantial compliance with which votes cannot be received and counted by the commissioners. It is very clear that these provisions were not complied with by the town of Fall River, previously to the time when that corporation was constituted á city; and therefore, unless there is some provision, in the act establishing the city, which will render the proceeding which actually took place valid, the votes were not legal and regular.

This act was passed on the 12th of April 1854, to go into operation from and after its passage. It was manifestly framed with a view to establish a city government, in place of a town government, if the inhabitants by their votes should so determine, within a short, limited time ; to suspend the annual town meeting in that town, required by law to be held in the month of March or April, until it should be determined whether the inhabitants would accept the charter, and to provide for holding it, with fall legal effect, within a limited time afterwards, if the charter should not be accepted; and if it should be accepted, to vest power in the existing town officers, to enable them to divide the city into wards, to call ward meetings for the election of wardens and other ward officers, and of mayor and other city officers, to provide effectually for organizing the city government and putting it into operation. We are to bear in mind that the very purpose of the charter was to change the corporation from that of a town to that of a city; that it could not be both at the same time , that the moment it became a city, the distinctive functions and powers of a town were merged, and no longer existed. Now, whatever might be the condition of this corporation, from the time of passing the act to the time it was accepted by vote of the inhabitants on the 22d of April, from and after such acceptance the town became a city, and any authority which it formerly had, to call and hold a town meeting, to choose a moderator, to give in votes, and which the clerk had to record, certify and transmit them, had ceased. The authority given by § 25, to hold their annual meeting after the termination of the month of April, depended upon the contingency that the charter should not be accepted; the charter was accepted, and this contingency did not happen.

The authority to vote for county, state and federal officers, given by § 18, is limited to the time fixed by law for these elections, and requires the votes to be taken in wards, to be counted, declared and registered in open ward meeting, and returned to the mayor and aldermen, to be recorded by the city clerk; and the mayor and aldermen are to examine, certify and transmit them to the county commissioners or other officers, as the case may require.

The election in question, in our opinion, failed to comply with the requisites of the law, whether it be regarded as made under the town or city government. As votes given by a town, they were bad, because the town had ceased to exist; there was no authority to hold a town meeting; and it was not held in February, March or April.

Under the city government, the election was void, because the selectmen, under § 18, authorizing them to call ward meetings, for the purpose of organizing the city government, and limited to the power of choosing ward and city officers, had no authority to insert an article in their warrant requiring the inhabitants to give in their votes for county treasurer; because there was no city clerk to whom the ward officers could send a transcript of their record of the votes, and there could be no city clerk till the council had been organized to choose one; there were no mayor and aldermen, to receive and examine the yotes from the ward officers, and transmit the result of the election to the county commissioners; nor did they ever make any such return. Taking the facts as they appear upon the whole return, we are satisfied that the proceedings had at Fall River, at the meetings at which votes for county treasurer were given in, were unauthorized and void, and that the votes from that town were rightly rejected.

It was intimated, on the part of the prosecutor, that the certificate actually sent to the county commissioners, signed by the town clerk, ought to have been taken as conclusive. We have not thought it necessary to express any opinion upon the abstract question, because we think that, taking that certificate alone, the result would be the same. Assuming that the commissioners were not authorized to take any notice of the act incorporating the town of Fall River as a city, and that they were bound to take it, upon the face of the certificate, that the town of Fall River, in the exercise of their functions as a town, held an open meeting on the 6th of May, and that the votes for county treasurer were given in, sorted and declared in an open town meeting, still these votes must be rejected, because given at a meeting held after the time limited by law.

But all laws establishing municipal corporations are to be regarded as public laws, to be taken notice of and acted upon by all persons concerned. The county commissioners, therefore, were bound to take notice of the act of the 12th of April, and that Fall River was thereby constituted a city and ceased to be a town, if the inhabitants should so determine within twenty days, and that must be determined by the 2d of May; it was only in the event that the act should not be accepted, that the annual meeting might be held after April. If this was a contingency of which the commissioners could take notice, then they knew that it did not take place. If it was a fact of which they could not take notice, then it should have been certified by the town clerk as the only ground of authority on which the inhabitants could legally hold their annual town meeting in May. Either way, therefore, the certificate, upon its face, carried the evidence that the town meeting was not legally held, and that the votes could not be received and counted for county treasurer. All further proceedings stayed.