Opinion
March 22, 1927.
June 29, 1927.
Present: RUGG, C.J., PIERCE, WAIT, SANDERSON, JJ.
Mandamus.
It is a rule of general application that the title to a political office cannot be impeached collaterally. One who contends that he is entitled to hold the office of auditor of a city where the auditor is elected by the board of aldermen cannot maintain a petition for a writ of mandamus to oust from office one who was elected by a board, one member of which the petitioner contended was not duly elected alderman or entitled to act as such.
PETITION for a writ of mandamus, filed in the Supreme Judicial Court for the county of Bristol on January 20, 1927, and afterwards amended.
The petition was heard by Carroll, J., and was denied. The petitioner alleged exceptions.
J.W. Cummings, ( J.T. Farrell with him,) for the petitioner.
A.E. Seagrave, for the respondents.
This is a petition for a writ of mandamus. The petitioner, a citizen and taxpayer of the city of Fall River, contends that he is entitled to the office of auditor of that city. Confessedly he held that office until the first Monday of March, 1927. He brings this petition against the first named defendant, who also contends that he is the auditor of that city by election for a term beginning with said first Monday of March. The petitioner joins as defendant one Russell and the members of the board of aldermen of the city of Fall River. His contention is that, although the defendant Lizotte was elected to the office of city auditor by a majority vote of the members of the board of aldermen as shown by the records of that board, that election is illegal for the reason that one of the votes for the defendant Lizotte was cast by the defendant Russell who, the petitioner claims, was not a member of the board of aldermen, and that therefore the election of the respondent is void and that the petitioner is entitled to hold office until his successor is legally chosen. The sole basis of the petitioner's claim is that Russell had no right to act as alderman.
A judgment in favor of the petitioner would not remove Russell from office. His right to the office of alderman can only be tried in a proper proceeding brought to determine his title. It is a rule of general application that the title to a political office cannot be impeached collaterally. It was said in Attorney General v. Crocker, 138 Mass. 214, 221, "Public necessity and policy require that the acts of an actual incumbent of a public office, in the performance of its duties, shall be held valid, although the incumbent should not have a legal right to the office, and though his right should be questioned and disputed." To the same effect are Fowler v. Beebe, 9 Mass. 231, Petersilea v. Stone, 119 Mass. 465, Prince v. Boston, 148 Mass. 285, Moloney v. Selectmen of Milford, 253 Mass. 400. It follows that no inquiry can be had in this proceeding into the validity of Russell's membership in the board of aldermen.
Exceptions overruled.