Saunders v. City of Lawrence , 141 Mass. 380 ( 1886 )

W. Allen, J.

The vote of the board of aldermen of January 11, 1884, was not a vote in concurrence with the common council. The board could act in the election of a city solicitor in two ways, — by concurring in an election made by the common council, or by making an election to be concurred in by the council. The two proceedings differ in form and in substance. One is by a yea and nay ballot upon the question of concurring in the election of a particular person; the' other is by a ballot for persons, in order to elect one from all who are eligible. After the vote in the negative on the question of concurrence on January 9, the board of aldermen might, under a proper motion, have taken further action upon that question, but it did not. It chose to regard that matter as finally disposed of, and proceeded to the new and different matter of making a first election, to be sent to the common council for its concurrence. Its further action was not upon the notice of election from the common council, but upon proceedings for a new election, and the vote of the adjourned meeting of January 11 was not upon that notice, but was a new election. Neither the intention nor the power of the aldermen to make it so is doubtful. If the record shows that the plaintiff was declared to have been, by that vote, elected in concurrence, it also shows that the declaration was not true. The records of both branches show that the plaintiff was not elected by concurrent vote of both.

We need not consider whether the subsequent concurrent action of both branches in electing another to the office would have worked the removal of the plaintiff if he had been duly elected, nor whether, if elected, and not removed, he could have recovered the salary.

Judgment for the defendant affirmed.