Mansfield v. O'Brien Et Al‪.‬

RUGG, C. J. This petition for a writ of mandamus is designed to try the title to the office of an assessor of the city of Springfield. The charter of the city of Springfield requires the city council to elect by ballot in joint convention in each year an assessor to hold office for the term of three years from the first of April in the year of election. St. 1852, c. 94, § 8, as amended by St. 1873, c. 126, § 2. It is provided by G. L. c. 39, § 3 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 present answering to his name when 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 clerk or other proper officer shall record every such vote.' This provision, first adopted by St. 1899, c. 129, as amended by c. 170, was a general law manifestly intended to apply to all cities save those having exceptional charters or other special laws. It must be deemed to control the charter provision of the city of Springfield already referred to. Logan v. City of Lawrence, 201 Mass. 506, 511, 88 N.E. 9; Cassidy v. Transit Department of Boston, 251 Mass. 71, 74, 146 N.E. 357. Compare Copeland v. City of Springfield, 166 Mass. 498, 504, 44 N.E. 605. The board of aldermen and the common council of the city of Springfield met in joint convention on February 3, 1930, for the purpose of choosing an assessor to hold office for a term of three years from April 1, 1930. The city clerk acted as clerk of the joint convention, having previously prepared and having before him the names of all members of the city council. Each member present voted viva voce, answering to his name when called by the city clerk and stating the name of the person for whom he voted. The votes thus recorded by the city clerk disclosed that there were twenty-five members present and voting and that of these votes the petitioner received fourteen and the respondent O'Brien eleven. The presiding officer then announced, 'By your vote you have chosen George E. Mansfield, Jr., assessor.' Following this there was confusion among the members of the joint convention. When it has subsided two members were recognized by the chair and criticized the action of the session, but neither of them offered any motion. Another member was then recognized and stated that he 'doubted the vote.' Thereupon a recess was taken. At the expiration of the recess another member of the joint convention arose and doubted the vote. The councilman was had before the recess first doubted the vote on inquiry said that he doubted the tabulation of the city clerk and doubted the vote, and that he kept a record himself which differed from the record of the city clerk; on his motion it was unanimously voted that a new roll call vote be taken. This then was ordered by the president and the city clerk proceeded as in the first roll call. On information from the city clerk of the result the presiding officer then announced that the vote as tabulated now stood 'Stephen D. O'Brien, thirteen. George E. Mansfield, twelve.' The record as kept by the city clerk discloses that on the neither of whom made any motion or expressed any doubt about the correctness of the first tabulation, voted for the petitioner but on the second roll call voted for the respondent O'Brien, and that no member of the joint convention other than these two voted differently on the second from his vote on the first. The record does not disclose that any member doubted the correctness of the record as to his own personal vote. Other business was transacted and then the convention dissolved. The question to be decided is who on these facts was elected assessor.