GILBERT A. A. PEVEY v. JAMES F. AYLWARD & another.

Knowlton, C. J. This is a petition for a writ of mandamus to prevent the respondent Aylward from acting as city solicitor for the city of Cambridge, and to compel recognition of the petitioner's alleged right to that office. The question turns upon the validity of Mr. Aylward's election, which was declared by the common council in concurrence with the board of aldermen on June 29, 1909. It is not now contended that the election was invalid because it was not held in the month of April, according to the requirement of the St. 1891, c. 364, § 20. See Rutter v. White, 204 Mass. 59; Cheney v. Coughlin, 201 Mass. 204.

On June 29, 1909, this respondent was legally elected by the

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board of aldermen, and notice of his election was sent to the common council. The statutory provision is as follows: "In the year one thousand nine hundred and eight, and every third year thereafter, in the month of April, the city council, by concurrent vote, the board of aldermen acting first, shall elect a solicitor for the city of Cambridge," etc. St. 1891, c. 364, § 20, as amended by St. 1907, c. 491. By the R. L. c. 26, § 7, it is provided that "no election of a city officer by a municipal body or board shall be valid unless made by a viva voce vote, each member who is present answering to his name when it is called by the clerk or other proper officer, stating the name of the person for whom he votes, or that he declines to vote."

The first objection of the petitioner to the election is that it was in violation of § 21 of the Joint Rules and Orders of the City Council, which provides that every ordinance and every order requiring concurrent action shall, after passing one board, remain in the possession of the clerk of that board for thirty-six hours. This is to give an opportunity for a motion for reconsideration, according to the later provision of the same section, and provisions on the same subject in § 18 of the Rules of the Board of Aldermen, and § 17 of the Rules of the Common Council. But these rules are not applicable to the election of a city solicitor, under the requirement of the statute. Such an election is not an ordinance or order, within the meaning of the rule. Section 21, after the requirement stated above, provides that if no motion for reconsideration is entered, the ordinance or order shall be sent to the clerk of the other board, who shall cause the same to be printed in a calendar, etc. In this case there was no ordinance or order. There was a vote upon an oral motion, in the board of aldermen, to proceed to the election of a city solicitor. Then an election was had in the manner prescribed by the statute. The result was recorded and notice of what had been done was sent to the common council. The proceeding is not within the definitions of orders and ordinances in §§ 1, 2 of the joint rules, [Note p104-1] nor is it within the meaning and object of § 21. This objection of the petitioner is not well founded.

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The next question arises upon proceedings after a motion to adjourn in the common council. The record is as follows:

"At this time Councilman Beane submitted a motion 'That the Common Council do now adjourn.'

"The President declared this motion to be carried, and immediately left the chair.

"The vote on this motion was doubted.

"Councilman Nelligan assumed the chair at once, and Councilman Murphy submitted a motion that Councilman Nelligan be chosen President temporarily.

"This motion was declared to be carried.

"On motion of Councilman Trodden, a committee consisting of Councilman Horan and Councilman Murphy was appointed to wait on the President and request him to resume his duties.

"This committee reported that they were unable to find the President.

"The aforesaid communication from the Board of Aldermen giving notice of the election of James F. Aylward as City Solicitor, was then read by the President pro tempore.

"Councilman Horan submitted a motion that the Common Council proceed to the election of a City Solicitor.

"This motion was declared to be carried.

"The roll of members was called by the clerk and each member present announced his choice for City Solicitor as follows:" Then follows the record of the vote of each member present, showing twelve votes for the respondent Aylward and two for the petitioner, and showing the names of the absent members, who were eight in number. Mr. Aylward was declared elected city solicitor, in concurrence with the board of aldermen, and notice was sent to that board.

The petitioner contends that the common council was adjourned, and that the subsequent proceedings were all invalid. We must construe the record as meaning that the vote to adjourn,

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as declared, was doubted without delay. Under § 2 of the Rules and Orders of the Common Council, [Note p106-1] it is the duty of the president, in such cases, to resolve the doubt at once by requiring "the members voting in the affirmative and negative to rise and stand until they are counted." That would be his duty if there were no such rule. This president did not relieve himself of the duty by "immediately" leaving the chair. As he ceased to act as presiding officer, the members were obliged to choose some one else to act in his stead, and their choice of a president pro tempore was properly made. Holt v. Somerville, 127 Mass. 408, 411. Bennett v. New Bedford, 110 Mass. 433, 438. It is objected that this was illegal because § 1 of the rules declares that "in the absence of the president, the clerk, and in his absence, the senior member present, shall call the council to order, and preside until a president pro tempore is chosen by ballot." But this rule applies to the organization of a meeting in the absence of the president. It has no application to a case where the meeting is organized and doing business, and the president abandons his post, and leaves the meeting without a presiding officer. In such a case the meeting properly may choose a presiding officer in any reasonable way. The clerk may preside until the temporary president is chosen, or any member may do so. As soon as the temporary president was chosen, it was the duty of the meeting to resolve the doubt on the motion to adjourn, in accordance with the rule. In their method of doing this they did not follow the rule. But apparently by common consent, and without objection by anybody, they did resolve the doubt by proceeding to do business. This action was inconsistent with any other conclusion upon the motion to adjourn than that it was not carried.

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The president's declaration of adjournment had no effect to bring the meeting to an end when the vote declared was promptly doubted. The meeting continued without being adjourned, and took action which was equivalent to a decision that the motion to adjourn was not carried. Baker v. Cushman, 127 Mass. 105, 106. Williams v. Gloucester, 148 Mass. 256, 260. Wood v. Milton, 197 Mass. 531. While this was irregular, its meaning was plain, and seemingly, it was by the unanimous consent of all the members present. It was, therefore, as effectual as if it had been regular. See Attorney General v. Remick, 73 N. H. 25; Hicks v. Long Branch, 40 Vroom, 300, 303; Putnam v. Langley, 133 Mass. 204; Wood v. Cutter, 138 Mass. 149. Wheelock v. Lowell, 196 Mass. 220, 230. Sinclair v. Mayor of Fall River, 198 Mass. 248, 256.

The attempt to adjourn having thus been disposed of, the election was valid. It was agreed to, not only by a majority of the members present, but by a majority of the members of the whole common council. Even if there had been irregularities in the election itself, unless they were such as to defeat or render doubtful the expression of the will of the voters, the court would desire to give effect to the action of the majority. Attorney General v. Campbell, 191 Mass. 497, 502. Blackmer v. Hildreth, 181 Mass. 29, 32. Commonwealth v. Smith, 132 Mass. 289, 296. People v. Wood, 148 N. Y. 142.

As the respondent Aylward was legally elected, the right of the petitioner, who was holding over after the expiration of his term of office until his successor should be chosen, was thereby terminated.

Petition dismissed.