State ex rel. Hull v. Hillard

Park, 0. J. We think there is manifest error upon this record. The defendant, as town clerk of the town of North Stonington, was ordered by the court below to make an entry upon the records of the town, that the relator was duly elected first selectman of the town at the annual town meeting held on the first Monday of October, 1874. If the relator was duly elected first selectman, then manifestly there must have been an office of that character to be filled. The statute in existence at that time in relation to the election of selectmen, reads as follows: “The inhabitants of each town qualified to vote, shall, at the annual town meeting choose a convenient number, not exceeding seven, to be selectmen of the town.” Revision of 1866, page 101. It is not pretended that this statute creates the office of “ first selectman,” as distinct from the office of selectman generally, or requires the voters of the town to elect one of the selectmen as “ first selectman.” It is not claimed that any other statute prescribed additional [172] duties to be performed by the voters of the town on that day. All their duties were imposed by this statute, and by it the transactions of that day were to be governed. When the day therefore had ended, and the town clerk had recorded all that had been prescribed by and done under the statute, how could it be said that he had not performed his full duty ? How could he be in fault in not making a record that one of the selectmen had been elected as “first selectman,” when the statute does not mention such an office to be filled, and no elector had cast a vote for any such officer, and the moderator of the meeting had not declared any such officer elected ? , But it is said that another statute declares that in the absence of any special appointment the first selectman of any town shall be agent ex-officio of his respective town. Revision of 1866, page 188. But what has this statute to do with the elections on the first Monday of October, or the duties of the town clerk in recording the officers elected on that day ? This statute merely provides for a town agent for such towns as have not seen fit to elect special agents. It might just as well have provided that in the absence of any special appointment the oldest elector of any town should be its agent. If there were such a statute would it be the duty of the town ■ clerk to make a record of the fact that a certain elector was the oldest elector of the town, determining the fact for himself ? And especially why should this be done when the town had, as it is found it had here, an agent specially appointed? And would his determination be conclusive in the matter, so that his record of it would be final and authoritative ? The error of the relator lies in the fact that he considers this statute as declaring that there was such an officer as first selectman, whereas it merely provides that in a certain event the selectman elected by a plurality of votes, standing first on the lists of candidates voted for to fill the office of selectmen, shall, ex-officio, (that is, by virtue of his office as selectman,) be town agent of his respective town. Suppose the relator had a plurality of all such votes, as he claims to have had, but had failed to receive a plurality of all the votes polled for the office, would he have been elected a selectman? He [173] certainly would have been elected, if there had been such an office as that of first selectman to be filled, but there being no such office, it is very clear he would not have been elected a selectman. Take this very case. The relator says that Wheeler and himself were voted for to fill the office of first selectman, and that he, the relator, was elected; how then does it happen that Wheeler was elected selectman at all ? He was not voted for to fill two separate and distinct offices; if such had been the case the votes for the one office would not have been counted for him in regard to the other, and he would have failed of an election as selectman. We are satisfied that on the first Monday of October, 1874, there was no such office in the town of North Stonington to be filled as that of first selectman, and that consequently no such officer was elected on that, day; and of course therefore the town clerk had no record to make of the election of any such officer. If the order of the court below had been to record the selectmen elected on that day in a different order, so that the name of the relator would stand first on the list of selectmen as recorded, a different question would have been presented for our consideration. We have no occasion to express an opinion upon this question, and we therefore do not consider it. There is manifest error in the judgment complained of, and it is therefore reversed. In this opinion the other judges concurred.