A very large amount of testimony has been taken in this case, all of which has been attentively read. Before examining the testimony, however, it seems proper to ascertain what, if any, are the points in issue, and to what this mass of testimony is directed.
The first matter, in regard to which the parties are in conflict, is the refusal of the clerk to proceed with checking the names of the voters. It is conceded by both parties that he did refuse, and that the moderator informed the meeting that he had refused. It is conceded that, before any further business was done, the meeting was adjourned to two o'clock in the afternoon of the same day.
The respondent states that three motions were made and put in succession, without any other business intervening between the motions; and, finally, the last motion, which was to adjourn to two o'clock in the afternoon, was carried, and so declared.
The respondent, Mr. Goodwin, says that this proceeding was out of order, and was therefore by him deemed equivalent to a dissolution of the meeting.
I do not understand how what had been done amounted to a dissolution of the meeting. Nothing can be better settled than that every deliberative assembly (and undoubtedly a town-meeting is theoretically and nominally such, however it may be in fact) is and must be the final judge of its own parliamentary law. No doubt the ordinary rules of parliamentary law, as laid down in the manuals and books of authority, are a very convenient aid to the orderly transaction of business; but its rules are in many matters complicated, and the distinctions subtle and nice; and when the various champions of discussion *Page 454 engage in a game of parliamentary tactics, a town-meeting would very soon find itself entangled in the complicated meshes of parliamentary rules, which would effectually stop all proceedings, and bar all legitimate action, if they were of any binding force.
All this, however, avails nothing against the omnipotence of a deliberative assembly. The moderator, excepting in those matters where he is bound by statute law, rules as he understands that he ought to rule. If his ruling is incorrect any person who is dissatisfied may appeal to the meeting, and its decision, being not against the statute, is final and conclusive. There is not in the petition, or in the answer, any allegation of fraud. There is nothing charged in the one or the other inconsistent with the idea that both the moderator and the clerk were, in good faith, doing the best they could. Whether, therefore, it was or was not agreeable to parliamentary rules that motions to adjourn without day should be put and denied, and then a motion to adjourn to a time certain put and carried, without any intervening business, is entirely immaterial. Nobody appealed from those rulings of the moderator, and there is no reason to doubt that the sense of the meeting was really ascertained and declared, and there was not the least reason to doubt that if it had been called upon to pass upon the rulings of the moderator, they would have been sustained.
The meeting, then, was regularly and properly adjourned in the forenoon of the first day, and duly assembled in the afternoon.
From the allegations in the pleadings, it is apparent that it was known by this time to the meeting that the clerk had in the morning declined to check the names, and it was also known to the meeting that the moderator was proceeding to take the votes for first selectman without using the check-list. It is not, I believe, alleged that any objection was made by anybody to this mode of voting. It is alleged by the respondent that individuals refused to take part in what was going on, and claimed that the proceedings were illegal; by which I understand that they considered that what they supposed to be an irregular adjournment had dissolved the meeting, and they apparently did not think it worth while to interfere any further in what was going on. It is alleged in the petition, that the moderator, before proceeding to take the votes in the afternoon, informed the meeting that he should turn out the ballots which had been cast in the forenoon, and did so. This fact is not denied in the answer, and is not in issue. The contradictory evidence on the point is, therefore, quite immaterial. It appears that, out of one hundred and fifty-two voters on the state ticket, one hundred and thirty voted for first selectman, — a large majority, which could easily have passed a new vote and taken a different order if it had been thought desirable. I think, therefore, that the town-clerk having once refused to check, and then one hundred and thirty voters after the adjournment having acquiesced in voting without the check-list, it is too late now to deny the legality of that vote.
As no vote was passed to use the check-list except in voting for the first selectman, the other voting was regular. *Page 455
It appears to me, also, that the adjournment to the next day, at 9 o'clock, was well enough, whether on the showing of the petitioner, or of the respondents. It is clear, according to either statement, that it was the sense of the meeting to adjourn to a day certain, and not to adjourn without day. It is, I think, not at all unusual, when a motion has been put, which, by mistake or accident, is likely to be of no consequence, to suggest an amendment, which is made by some one suggesting an addition to the motion. It may not have been strictly parliamentary for the moderator to proceed as he did; but the meeting having twice, according to the answer, refused to adjourn without day, there is little reason to doubt that, if the moderator had put the motion to adjourn to the 4th of July first, that motion and the motion to adjourn till nine o'clock that night would have been voted down, and the motion to adjourn till the next day, at 9 o'clock, would have been carried. There is no reason to doubt that the large majority of that meeting were in earnest, and did not intend to lose their annual meeting. It may be remarked, also, that if the first adjournment did amount to a dissolution of the meeting, it would have been idle to state the votes for state and county officers in the afternoon. It shows, plainly enough, that the malcontents themselves had not entire faith in their position. It appears to me, therefore, that, taking the allegations in the petition and the answer together, and without considering the evidence at all, it is apparent enough that there was no illegality which ought to vitiate the doings of the meeting so far. No business was transacted on the next day, which required the use of the checklist, excepting the choice of representative; and the house of representatives has already relieved the case from any difficulty on that account, and condoned the error, if there was one.
I should think, then, that the town-clerk ought to amend this record.
The matters in regard to which any issues of fact are made, appear to be really quite immaterial; and as the respondent expresses his willingness to make up the record under the direction of the court, I see no reason why he should not be ordered to do it. He states, in his answer, correctly, all the material portions of the doings of the meeting that afternoon, and I think the court would have no difficulty in ordering him to make such a record as would show the proceedings and their validity during the afternoon of that day. And I think this may be done on the statements and admissions of the petition and answer, with no aid from external evidence, excepting, simply, proof of the number of votes cast, and the persons for whom, at those ballotings. The town-clerk pro tempore ought also to be permitted to make up the record, in the town book, of the second day's proceedings.
An immense mass of testimony has been taken, every word of which I have read with care, and a large portion of it more than once. It is not agreeable reading. It is probable that in a confused town-meeting it would be difficult to find two men who would see the same things, and see them alike. It is equally certain that few would see accurately. There would of course be many contradictions, and still more *Page 456 unintentional softening down on the one side, and exaggerating on the other, what took place. It is not strange, therefore, that there should be many contradictions.
I feel satisfied, however, that enough appears to make it pretty evident that the malcontents of that day were excited enough to be willing to resort to mean and desperate measures to retain the advantage they supposed they had gained. It is not an agreeable phase of humanity which is exhibited. If, however, what I have said so far is true, the evidence is mostly irrelevant. The truth of the matters on which the legality of the first day's work depended is apparent from the petition and answer.
This proceeding is not a quo warranto. We are not trying any one's right to an office, but simply determining whether a mandamus should issue to correct and complete a record.
I do not therefore feel called upon to undertake to form or express any opinion in regard to the official capacity of the persons who have been acting as selectmen. An opinion expressed in this proceeding, in which those matters are not, as I understand, in issue upon the pleadings, would be of no binding force upon anybody; and if ever the matter should be drawn into controversy, the evidence may appear very differently from what it does now, especially if it should take the form of oral testimony before a jury.
LADD, J., concurred.
Peremptory mandamus issued.