Crowell v. Whittier , 39 Me. 530 ( 1855 )

TeNNEY, J.

— The Revised Statutes, c. 5, § 9, provide, that at the annual town meeting to be held in the month of March or April, the qualified voters in each town shall choose by a major vote, constables, collectors of taxes and other town officers; and by § 10, certain of the town officers shall be chosen by ballot, and all others may be chosen by ballot, or other method agreed on by a vote of the town.

It appears by the records of the town of Rome, that at the annual meeting of that town in March, 1853, it was “voted, that the collector’s and constable’s berths go to the lowest bidder. Thomas Whittier bid off the collector’s and constable’s berth at two cents and two mills for collecting.” What method the town agreed on, by their vote to choose those officers, who wore not required to be chosen by ballot, does not appear. But upon the adoption of any mode, the choice of the officers must be by giving to each respectively a majority of all the votes cast. It was necessary to constitute an election, that the person claiming to be chosen, should at the time he was voted for be presented distinctly to the mind of each elector, who voted, so that he should know for whom ho voted. The general vote of the town, that whoever should make the lowest bid for collecting the taxes should be the constable, cannot be regarded as the choice of such person for that office, by a major vote. Upon the passage of this general vote, no one is chosen. And it is difficult to perceive, how that vote and the bid only of an individual afterwards made, without further action of the town can in any sense be a choice of that person, within the meaning of the statute.

Other objections to the validity of the choice of the defendant as constable have been presented, the consideration of which is not important for the decision of the case.

As the defence is upon the ground, that the defendant was legally the constable of the town of Rome, and this not appearing by the evidence, it necessarily fails.

Defendant defaulted.