State ex rel. Bruce v. Davidson

Lyon, J. If tbe annual town meeting of tbe town of Suam-ico for tbe year 1872 was lawfully held at Elintville, tbe defendant, having been elected at such meeting, and having duly qualified, is tbe town treasurer of that town, and tbe judgment of the circuit court is right. But if such annual town meeting was lawfully held at the place where the preceding annual meeting was held, the relator is the town treasurer, and not the defendant, and the judgment of the circuit court is erroneous. Whether the town meeting of 1872 was lawfully held at Elint-ville depends upon the validity of the ballots cast at the preceding annual town meeting in favor of holding the next town meeting at that place. It is doubtless true that very many of the requirements of law as to the manner of conducting elections are directory; that many of the acts which are required by statute to be performed by the officers charged with the duty of conducting elections, are purely ministerial; and that a failure to comply with such requirements does not necessarily invalidate the election. It seems that if the election is authorized by law, is held at the prescribed time and place, and is conducted fairly and in substantial compliance with the law, it is sufficient. This doctrine has been repeatedly asserted or recognized by this court. State ex rel. Peacock v. Orvis, 20 Wis., 235; State ex rel. Bancroft v. Siumpf 21 id., 579; State ex rel. Doerflinger v. Hilmantel, id., 566; State ex rel. Lutfring v. Goetze, 22 id., 363; State ex rel. Chase v. McKinney, 25 id., 416. But where there has been a failure, in conducting an election, to comply substantially with the requirements of the statute in respect to time, place, or manner of voting, such election is void. Thus, when the law prescribes that the voting shall be by ballot, and the vote is taken viva voce or by count, the irregularity is fatal, although the vote be nearly or quite unanimous. If the conditions be reversed, and the vote be by ballot when the law requires that it be taken in some other manner, the result is the same. Commonwealth ex rel. Clark v. Read, [121] 2 Ashmead, 261; Foster v. Scarff, 15 Ohio St., 532. See also cases above cited. It is not pretended or claimed in this case, that the town meeting of 1871, considered as a deliberative body or as an aggregation of the voters of the town there present, made any order or took any action whatever in relation to the place of holding the next meeting: and the controlling question to be determined is, whether any number of the electors, without any such action by the meeting, could change the place of holding the annual town meeting for the ensuing year, by expressing, on the ballots which they voted for town officers, their desire or will that the same should be held at Elintville. With the exception of the election of those officers which the statute prescribes shall be elected by ballot, all, or nearly all, of the functions of a town meeting are such as pertain to a deliberative body or assembly. The subjects upon which a town meeting may take action are numerous and diversified. The course of procedure which is to be pursued is not fully marked out by the statute, and I deem it quite safe to say that when the statute does not give direction, the general rules of parliamentary law, so far as they may be applicable, should be observed and enforced in conducting the business of a town meeting. It will necessarily follow, that propositions upon which the town meeting may lawfully act may be submitted to it by motion or resolution, or in the form of proposed bylaws or orders, by any elector of the town, for the consideration of the meeting. It also follows from such application of the rules of parliamentary law, that the chairman of the meeting cannot prevent action upon any subject within the powers conferred by law upon the meeting, by neglecting or refusing to present the same to the meeting for its action. Clearly the statute (Tay. Stats., 357, § 47) ought not to be construed to give to the chairman any such absolute veto upon the action of the meeting. In the present case, however, the chairman did announce two orders of business, under either of [122] which a proposition to change the place of holding the next town meeting to Flintville could have been presented. These were as follows: “Sixth, to make by-laws and orders for the management of the prudential affairs of the town. Seventh, to act upon all other lawful business proposed to the meeting.” Any of the propositions before mentioned are open for discussion and amendment, and may be adopted or rejected by the meeting, or adopted in part and rejected in part: and the action of the meeting thereon may be reconsidered, if a motion to reconsider be made within one hour after the vote was taken (§ 47. supra). Unless otherwise ordered by the meeting, the vote upon any such proposition should be taken viva voce, or by a division. It is probable that the meeting has the power to direct the vote to be taken by ballot; but before it can properly do so, reasonable opportunity ought to be given the electors to amend and perfect the proposition; the same should be voted upon separately; and the result of the ballot must be ascertained and declared in time to give any elector an opportunity to move a reconsideration of the vote. In no other manner can the functions of the town meeting as a deliberative body be so exercised as to secure the rights of each elector to submit and discuss propositions, to propose amendments thereto, and to move a reconsideration of any vote thereon. It is provided by statute, that “ the annual town meetings in each town shall be held at the place where the last town meeting was held, or at such other place therein as shall have been ordered at a previous meeting.” Tay. Stats., 354, § 30. There seems to be no room for doubt that this statute contemplates that a proposition to change the place of holding the annual town meeting must be made to the town meeting, composed of such of the electors of the town as are there assembled in an aggregate capacity as a deliberative body; that the proposition must be open to discussion and amendment (unless, by appropriate action, such as ordering the previous question, the meet [123] ing direct otherwise); and that tbe right of any elector to move a reconsideration witbin tbe time prescribed by statute must not be impaired. The right to debate tbe proposition, and to propose amendments thereto, cannot be taken away by tbe action of any number of the electors acting individually and not in their aggregate capacity as a town meeting; and neither the electors nor the meeting can lawfully deprive an elector of the right to move a reconsideration. In this case the acts of the hundred and one electors who, at the town meeting of 1871, voted that the next town meeting should be held at Elintville, were merely individual acts. In no correct sense did those acts become the act of the aggregation of electors known as the town meeting. If, instead of voting upon their ballots in favor of holding the next town meeting at Elintville, these hundred and one electors had, during the progress of the town meeting of 1871, signed and filed with the town clerk an order something like the following : “ The undersigned, being a majority of the legal voters of the town of Suamico, and being lawfully assembled in annual town meeting on this first Tuesday in April, 1871, do hereby order that the next annual town meeting of said town be held at Elintville,” probably no one will claim that such an order would have any force or effect whatever. It is well settled that the powers given to any legislative or other deliberative body must be exercised by the body itself, and cannot be exercised by the members thereof in their individual capacity, although all of the members join in the act. It seems to me that there is no difference in principle between the mode of procedure above indicated and that which was resorted to. The supposed order, had it been made, would have been no more the individual act of the electors signing the same, than are the votes which were deposited in the ballot box the individual acts of the electors who gave those votes. Debate, amendment and reconsideration were as effect [124] ually prevented by the mode adopted as they would have been had the other mode been resorted to. These are matters of substance, and not mere irregularities; and, in the- opinion of a majority of the court, the method adopted to obtain expression of the electors of Suamico on the question of holding the annual town meeting for 1872 in Flint-ville was so entirely without authority of law, that the court ought not and cannot hold that the vote in question was of any force or effect whatever. It follows from the views above expressed, that the place of holding the annual town meeting of 1872 was not changed by the preceding annual town meeting, and hence, that the meeting at which the relator was elected town treasurer was the lawful annual town meeting of that town for 1872. By the Court. — The judgment of the circuit court is reversed, and the cause remanded for further proceedings in accordance with this opinion. Cole, J., dissents.