Stuart v. Inhabitants of Ellsworth , 105 Me. 523 ( 1909 )

Bird, J.

The plaintiff claims to recover from the defendant city wages as custodian of the fire station and driver of hose wagon for the entire month of April, 1908, upon the ground that he was never legally removed from office and ever was during that month ready and willing to perform his duty.

It is urged by plaintiff that the ordinance of January 6, 1908, providing that subordinate members of the fire department should hold office during good behavior was never legally repealed. The amended charter, however, provides for annual elections on the second Monday of March by the board of mayor and aldermen of all necessary subordinate officers for the ensuing year, that all officers shall be chosen and vacancies supplied for the current year and expressly provides that such officers shall hold their offices during the ensuing year and until others shall be elected and qualified in their stead: Priv. and Spec. Laws 1869, c. 29, § 4; 1878, c. '228 ; 1877, c. 393. The provisions of §§ 2 and 4 of the ordinances of January 6, 1908, in so far as they attempt to change the tenure of office of subordinate officers, were repugnant to the charter and therefore void.

The provisions of the charter above cited (Priv. and Spec. Laws 1869, c. 29, § 4) fix the tenure of office of subordinate officers as the current year, that is, the municipal year at the beginning of or during which the election takes place and until others shall be elected and qualified in their stead. The municipal year for which plaintiff was elected expired on the second Monday of March, 1908, when, by the amended charter, the election of subordinate officers was to be held, but, as his successor was not then elected, he held over until his successor was elected and qualified. On the thirteenth of April, 1908, his successor as driver of hose wagon was elected by the board of mayor and aldermen. We are not aware of any requirement for the qualification, by oath or otherwise, of such an officer as custodian of fire station or driver of hose wagon. Upon the election, if legal, of the successor of the plaintiff his term of office was lawfully at an end.

Was the election of Wallace, as the successor of plaintiff, ineffectual by reason of the fact that the return upon the warrants calling the elections were defective? The mayor and aldermen chosen by the citizens proceeded to organize on the day and in the manner provided in the amended charter and apparently were recognized by the citizens as mayor and aldermen and claimed the right to perform and did perform the duties appertaining to the respective offices and the citizens acquiesced in their so doing. Despite the imperfections in the returns (Hamilton v. Phipsburg, 55 Maine, 193, 195) they were de facto officers and in controversies to which they are not parties their title to their offices and their acts therein cannot be questioned : Brown v. Lunt, 37 Maine, 423; Hooper v. Goodwin, 48 Maine, 79; Dane v. Derby, 54 Maine, 95, 102; Cushing v. Frankfort, 57 Maine, 541, 542; Johnson v. McGinly, 76 Maine, 432, 433; Andrews v. Portland, 79 Maine, 484, 490: See State v. Poulin, 105 Maine, 224.

Nor, assuming but not determining, that the offices of alderman of a city and city treasurer are incompatible, with the consequence that an election of an alderman to be city treasurer ipso facto legally vacated the former office (Stubbs v. Lee, 64 Maine, 195, 197,) would the continuance of such officer to act as alderman under color of title and claim of right with the acquiescence of the public, render him any less an alderman de facto. Woodside v. Wagg, (Symonds J.) 71 Maine, 207; Pooler v. Reed, 73 Maine, 129.

The conclusions reached render it unnecessary to consider the other points urged by the plaintiff.

The plaintiff’s term of office as driver of hose wagon was legally determined on the thirteenth of April, 1908, and, as no salary was attached to the office of custodian of the fire station, we must find in accordance with the agreement of the parties that there is due plaintiff as wages, as driver of hose wagon, the sum of twenty-two dollars and fifty cents ($22.50), plaintiff having been allowed to serve until the fifteenth day of April, apparently without official notice of his removal. The court at nisi prius is to determine the adequacy of the tender made and to enter judgment for costs accordingly.