Attorney-General Ex Rel. Libbey v. Megin , 63 N.H. 378 ( 1885 )

Upon the question which of the parties received a plurality of votes for the office, the record of the declared vote is, in this suit, merely evidence. If the record of the declaration of the moderator in the case of town and school-district officers, and of the canvassing board appointed by law in the case of other officers, were conclusive, this proceeding could never be maintained to test the right to an elective office. It cannot be instituted until possession of the office is taken (Osgood v. Jones,60 N.H. 282), and no one can take possession until his election is declared. The exception to the reception of evidence outside the record must be overruled People v. Vail, 20 Wend. 12.

Whether there may be cases in which the law does not require an information to be issued or the writ to be granted, although it appears that the defendant is not entitled to the office, as where a determination of the proceedings cannot be reached until after the expiration of the term of office, or where greater public mischief would be done by granting than by refusing the writ (People v. Sweeting, 2 Johns, 185; People v. Loomis, 8 Wend. 396; Commonwealth v. Athearn, 3 Mass. 285; Howard v. Gage,6 Mass. 462; State v. Jacobs, 17 Ohio 143; State v. Schnierle, 5 Rich (S.C.) 299; King v. Parry, 6 Ad. E. 810; State v. Mead, 66 Vt. 353; State v. Tolan, 33 N. J. 195; Commonwealth v. Jones, 12. Penn. St. 365), is a question not necessary to be considered. No sufficient reason here appears why the defendant should not be removed. He was not, and the relator was, lawfully elected: a part only of the term of office has expired, and no public mischief can result from the removal. By virtue of his declared election and induction into the office, the defendant became, and until judgment rendered will remain, a de facto officer. His official acts are valid. His contract with the teacher, if made in good faith by both parties, will have the same force and validity as if the judgment in this case were for the defendant. The prudential committee is charged with various duties besides the employment of teachers (G. L., c. 86, s. 27; c. 87, s. 14; c. 88, s. 15; c. 91, ss. 1 2), all of which may as well be performed during the remainder of the term by the relator as by the defendant, both being equally competent. No more inconvenience can result to the district from granting the information than is met in the ordinary case of the death, resignation, or removal of the committee, and the election or appointment of another.

Information granted.

All concurred.