Eldridge v. Selectmen of Chatham

Knowlton, C. J. At a meeting of the voters of the town of Chatham for the election of town officers, after the votes had been counted it was announced by the moderator that the petitioner had received one hundred and fifty-two votes for the office of selectman, assessor and overseer of the poor, and the respondent Oliver E. Eldredge had received one hundred and forty-nine votes. The petitioner was then declared elected, and due record was made accordingly. Afterwards he took the oath of office and entered upon the performance of his duties. Upon these facts it would appear that he was duly elected, and he would be entitled to hold the office throughout its term if there were nothing to deprive him of the right. Subsequently measures were taken to obtain a recount of the ballots. A recount was made by the registrars of voters. They found that the respondent Eldredge had received one hundred and fifty-two votes and the petitioner only one hundred and fifty-one votes, and the records of the town were amended accordingly. The respondent Eldredge has been recognized by the other respondents as duly elected, and is now in the performance of the duties of the office. The questions are whether such a recount was authorized by the statute, and whether this recount was inaugurated and conducted in accordance with the provisions of law, so as to deprive the petitioner of the office to which he was regularly declared elected at the town meeting. As proceedings for a recount of votes are strictly statutory, they are of no effect unless they are authorized by the statute and begun and conducted as the statute provides. The town did not use the official ballot, and the town clerk, selectmen, assessors, treasurer, collector of taxes and school committee were not voted for on one ballot. It is only when one or the other of these conditions exists that the statute provides' for — 412 — enclosing the ballots in envelopes and preserving them. R. L. c. 11, §§ 239, 345. Under the R. L. c. 11, §§ 266, 267, when an application for a recount of votes is made, “ the envelopes containing the ballots, sealed,” are to be transmitted by the town clerk to the registrars of voters, who are to “ open the envelopes, recount the ballots and determine the questions raised.” These sections, which are the only ones providing for a recount of votes after an election of town officers, are applicable only to those cases where the statute requires the ballots “ to be publicly enclosed in an envelope and sealed up with the seal provided for the purpose.” It follows that, except in towns where the official ballot is used, or where the officers above mentioned are “voted for on one ballot,” no recount of votes can be had after the result of the election has been announced and recorded and the meeting has been adjourned. This view is strengthened by reference to similar provisions of earlier statutes. St. 1886, c. 262, § 2. St. 1886, c. 264, § 11. St. 1890, c. 423, §§ 97, 226. St. 1893, c. 417, §§ 174, 208, 276. It therefore becomes unnecessary to consider the other alleged defects in the proceedings on which the recount was founded, some of which appear to be important. As the registrars of voters had no jurisdiction to recount the votes, the result of their action cannot be considered, and the election declared by the voters in town meeting is valid. Peremptory writ of mandamus to issue.