The defendants' motion to dismiss is to be treated as in effect a demurrer, whereby the allegations of the petition are admitted to be true. Bell v. Pike, 53 N.H. 473, 475.
The petition alleges that, at a legal meeting of the board of aldermen, certain "resolutions were legally passed by a majority of all the qualified aldermen, after a full investigation and hearing of all parties in interest," which resolutions show that the board of aldermen determined that Cate was entitled to a seat in that board, and that Sanborn was not; that, notwithstanding this adjudication in his favor, Cate is prevented from exercising the rights of his office by Sanborn, who usurps the office, and by Martin, who as mayor refuses to recognize the plaintiff as alderman.
The statement that the board of aldermen, after a full investigation and hearing of all parties in interest, at a legal meeting, by a majority vote of all the qualified aldermen, legally passed these resolutions, is a sufficient allegation that the board of aldermen have properly adjudicated the plaintiff's title in his favor, and that everything was done which was necessary to make their action legal. The allegations of the petition and the defendant's motion to dismiss, which admit the truth of these allegations, raise no question as to the legality of the action of the board of aldermen in their adjudication that Cate was, and Sanborn was not, entitled to a seat in that board.
But the question does arise as to the effect of their action, — whether their decision that the plaintiff was elected alderman is conclusive, or whether it may be again litigated in this proceeding, or some other appropriate one. It is provided in s. 8, *Page 613 charter of the city of Concord, that "the board of aldermen shall be final judge of the election and qualification of its members." Laws 1849, c. 835. And it is provided in s. 11, c. 48, P. S., that "each branch [of the city government] shall be the final judge the election and qualification of its members, and, if any election is contested, shall have the same powers to ascertain the facts as the city convention have in regard to the election of mayor." Section 3, c. 47, P. S., provides that, "in case the election of mayor is contested, the city councils in convention shall have power to send for persons and papers, may inquire into the correctness of the returns, and shall hear and receive evidence as to any fraud or misconduct in relation to the election."
In Gregg v. Goodrich, 67 N.H. 543, it was decided that in the case of a contested election of mayor, the city councils in convention act not only as a board of canvassers, but also as a court with power to try and determine the question of his election. And in Attorney-General v. Sands,68 N.H. 54, it was settled that the finding of facts by the convention in such a case is final, and cannot be reversed on an information in the nature of a quo warranto. This decision is based upon "the general rule that `when the legislature intend a court's decision of questions of fact shall be revisable by another tribunal on a new trial of the whole case, whether there is error of law or not, an appeal is ordinarily provided.' Boody v. Watson, 64 N.H. 162, 186. When no appeal is provided from the decision of the constituted tribunal on questions of fact properly before it, the inference is that the legislature intended that the decision should be final."
All the authorities agree that, where a special statutory board is established with powers of final decision, its action is conclusive. Cool. Con. Lim. 785; 1. Dill. Mun. Cor., s. 202; Mechem Pub. Off., ss. 213, 214; High Ex. Rem., ss. 637, 642; People v. Harshaw, 60 Mich. 200. The board of aldermen is made the final judge of the election and qualification of its members both by the statute and the city charter. Such board having in contested election cases the same powers to ascertain facts as the city convention, acts in hearing and determining such cases in a judicial capacity, and its decision is final and conclusive, except that it may be correctable as to errors of law by the superintending power of this court by certiorari, or other appropriate remedy. Boody v. Watson, supra; Attorney-General v. Sands, supra. The board of aldermen in trying the disputed title to this office acted as judges; their adjudication of the questions of fact in favor of the plaintiff is final and conclusive, and these questions will not be retried by another tribunal on quo warranto or other common-law process.
The plaintiff's title having been adjudicated and determined *Page 614 in his favor by a competent tribunal, the case presents a question, not of title to office, but whether the plaintiff shall be permitted to perform its duties without interference. In such a case, mandamus and not quo warranto is the proper remedy. Eaton v. Burke, 66 N.H. 306.
Exceptions sustained.
BLODGETT, C. J., did not sit: the others concurred.