Reed v. School Committee of Deerfield , 176 Mass. 473 ( 1900 )

Holmes, C. J.

The members of the joint committee provided by St. 1898, c. 466, no doubt are intended to vote individually, and not by towns. At the same time, as town interests are concerned, it is at least consistent with the statute that the members should be at liberty, by unanimous consent, to secure an equal representation for each town. The number of which a school committee shall consist is left' to the will of the town, (Pub. Sts. c. 44, § 21,) and it might be unjust that the representatives of a town with a school committee of nine should count for more on the joint committee than those of another town with a school committee of three.

It is true that the statute requires the superintendent of schools to be chosen by ballot, and that'if votes are so far identified as to make it possible to give them different values according to the town from which the voter comes, the secrecy of the ballot, if secrecy is intended, is impaired so far. But the remote implications of the provision for the ballot are at least balanced by the considerations in favor of equality, of which we have spoken.

At the first meeting the equality agreed upon was an equality between the committees actually present. At the adjourned meeting the equality was an equality between the total committees. At the first meeting it was known that the absent members could not be present. Whether this was or was not the fact at the adjourned meeting does not appear. We cannot say that the agreements as to the numerical value of the votes were not both of them lawful and proper.

It follows that the respondent Barton was elected at the first meeting, and should have been declared elected by the chair. The chairman, however, declared that there was no election, and the meeting adjourned.. At the adjourned meeting, (which was a continuation of the same meeting, Attorney General v. Simonds, 111 Mass. 256, 258,) it was voted “ to rescind the vot'e at the previous meeting whereby the convention voted to elect a superintendent of schools,” and this vote is treated by both- sides as a rescission of the election, if that was within the power of the meeting.

We are of opinion that it was within the power of the meeting to rescind its vote. The case is like Wood v. Cutter, 138 Mass. 149, except that here the statute required the voting to be by ballot. But the statute made the same requirement in Baker v. Cushman, 127 Mass. 105, and the language of Chief Justice Gray in that case is applicable to this. See also State v. Foster, 2 Halst. 101. In view of these decisions further discussion is unnecesary.

Upon the facts stated in the report it follows from what we have said that the petitioner is entitled to the office.

Writ to issue.