Taylor v. McPheters

Wells, J. The St. of 1871, c. 334, does not explicitly provide any mode in which the result of the vote, upon the question which it authorizes to be submitted, shall be ascertained and declared. It does provide that meetings called for the purpose shall be “ held in the same manner as meetings for the election of municipal officers.” From this it is argued, and we think correctly, that it is the duty of the city clerk, upon receiving the returns from the ward officers, to enter them, or a plain and intelligible abstract of the same, upon the journal of the proceedings of the mayor and aldermen, or some other book kept for the purpose of recording such returns. This writ is sought to compel the city clerk to make such record, the petitioners alleging it to be necessary for their security and the protection of their rights under a vote of the city of Lowell, taken in May last, in accordance with the statute referred to. The record of the clerk, when thus made, does not give effect to the vote. It is a mere clerical duty; the purpose being to secure the preservation of the returns, and their presentation in [354] proper form for the action of the mayor and aldermen, whose duty it is to examine and compare them and ascertain the result, and thereupon to declare it. But the power and duty of the mayor and aldermen thus to act do not depend upon the record to be made by the clerk. They may require the returns themselves to be laid before them, though not thus previously recorded ; and upon being satisfied therewith, may proceed to declare the result. We do not think that the security of the petitioners or the protection of their rights does depend upon the record which they ask the court to order to be made. But, further than this, upon the answer to the writ, and the demurrer thereto, it fully appears that there is no occasion for any peremptory order, and that such an order would be ineffectual for any beneficial purpose to the petitioners. The returns were, in fact, laid before the mayor and aldermen within the proper time; and they have taken action thereon, by investigating the character of the returns and the legality of the votes as returned. As the result of that investigation, they have declared the vote of Ward Two to be illegal, and rejected the same ; and have also declared the result of the election, excluding the returns of that ward. It is denied that the mayor and aldermen have any power so to reject the vote of a ward, or to take any action in the matter otherwise than to ascertain from the returns themselves, as made to them from the several wards, what the result of the whole vote has been, and to declare that result. On the other side, it is contended that the power to “ ascertain ” implies the right to go behind the returns, and investigate their correctness and legality. These questions have been argued before us. But we have no power to determine them in this proceeding, to which the mayor and aldermen are not parties. If the mayor and aldermen have that power, they have exercised it; and, upon the facts disclosed here, the petitioners are entitled to no relief. If no such power exists, the proper certification and declaration of the vote must be obtained by proceeding against the mayor and aldermen. The present proceeding will not advance the remedy, and ought not in any degree to prejudge the real question in controversy. Peremptory writ refused.