The Portland daily press., 1874-04-16
THE BIDDEFORD DECISION.
The Republican Organization Sustained.

Judge Virgin gave his decision yesterday on
the rule to dissolve an injunction against Mayor
Warren and Samuel Trip OF Blddeford, the
Injunction being to restrain them from taking
possession of books and papers in the Office OF
the city clerk of that city. The Judge ruled
that the decision of this question depends upon
the proper determination of the question
hich of the two divisions of the board of
common council of the city of Biddeford is
the legal representative of that branch of the
city government
''The test for ascertaining which of two di-
visions of a municipal legislative body repre-
sents the legitimate social succession, is, which
OF them has maintained the regular forms of
organizatlon, according to the laws and usages
OF the body; or, in the absence of these, in ac-
cordance with the laws, customs, and usages of
similar bodies. in analogous cases. Kerr v.
Irego, AZ Penn. State Reports. 292; Brightey' s
Leading Cases on Elections, 632
The evidence shows that the clerk of Ward
. delivered certificates of election to Tarr and
Wakefield. Such certificates are prima facie
written title to the Office, and can be set aside
only in manner prescribed by law The title
papers of their offices are complete and have
the signature of the officers designated by the
charter. The fact that they were not delivered
WiIuiu tWeuty-1O nOufS aIUer the eleCtl0n
does not render them void. They were deliv
cred before any meeting of the board was re-
quired. If they are vitiated by mistake or even
tainted by fraud, they can be tried before the
tribunal appointed by the charter, and not un-
der the present process of this court which has
no authority to annul the certificate of the
ward clerk. The certificate of election anC
not the certified copy of the record of the
ward, whether rightfully or wrongfully given,
confers upon the person holding it, prima facie
right to the office, Until overthrown by ju-
dicial determination by the proper tribunal
Section 20 of the city charter provides that
1.-THE aldermen ard councinen elect, shall on
the Sd Monday of March, at 10 o'clock, a. m.,
meet in convention, when the oath required by
" shall be administered to the members of the
two boards present, by the mayor or any JUS
tice of the peace; and thereupon the two
boards shall separate, and the board of com
mon council shall be organized by the election
OF . president and clerk"
The action under this provision of the char
ter as it appears from the record of the re-
spective branches, is as follows:
On the third Monday of March at 10 O'Clock
a. M, the aldermen elect met in their room
and temporarily organized by electing G. f.
Yates temporary chairman, the city clerk being
also clerk of the board of aldermen and hold
ing over until another ''shali be elected and
qualified in his stead" presiding during such
election.
AT the same time the eighteen councilmen
cleCt tcOuCeIulug whose eleCt10n tnere Is no
dispute together with Tarr and Wakefield
each holding regular cert ficates of election, met
in their room and chose r.. III. Ingersol temper.
airy chairman, the clerk of the board of com
mon council of 1873, presiding during the cleo
ton OF the temporary chairman. Without
choosing any other clerk at that time, but the
same clerk officiating as such, the body thus
organized thereupon through their temporary
chairman appointed committee on credentials
winch after receiving the certificates of cleo
ton from the several persons holding them re-
ported the names of twenty persons, including
Tarr and Wakefield, as conncimen, which re-
port was accepted without opposition No
clerk was chosen during this temporary organ
ization, but the same clerk contiued to act
nen,ine contrddicente,
When both boards had been thus organized.
the board of aldermen sent message to the
board OF common council proposing a joint
convention. The common council received the
message and voted to, and did meet the other
board in convention. In joint convention,
committee duly appointed for that purpose,
waited upon the Mayor who appeared in the
convention and the oath of Office was admins
tered to him by the city clerk. Thereupon the
Mayor ptoceeded to administer the oath to the
aldermen and councIlmen by wards, he calling
them in order. When he came to Yard 3,then
Tin I'll Q languane of the record) ''as the names
of Charles E. Cole, Israel Denuett and John
Garside were called, councilman George r.
Andrews, in behalf of he common council,
protested against said Cole, Dennett and Gar.
side being sworn, as they had not proper Gre
dentlals and had uot been recognized by the
common council as members of that body, and
that James +. Tarr and Charles S. Wakefield
holding proper credentials, were present to be
sworn. The Mayor administered the OATH
however to Cole, Dennet and Garside
The boards separated And the common
council having retired to their room, lin the
language of the record). Son motion, voted
that the Mayor in JOINT convention, having
administered the oath of office to parties not
by this board as members and not
having credentials prescribed by law that the
oath of office be now administered to James
E. Tarr and Charles S. Wakefield possessing
the necessary certificates. The board Of alder
men notified the common council that when
they adjourned it would be until two o. CLOCK
p. M, in which the council concurred James
f. Tarr and Charles S. Wakefield, council
men elect from Ward 3, were then sworn by
Benjamin +. Hamilton, Justice of the Peace"
The council the n proceeded TO elect perma-
nent prt sident. The committee to receive,
sort and count votes (Andrews, Paine and c..
f. Smith) reported the whole number of bal
lots 20. r. H. Ingersoll had IL, and c. f.
Smith s, and R. H.. Ingersoll was thereupon
declared to be elected. Tarr and Wakefield
were allowed to vote for pres. dent, while Cole,
Dennet and Garside claimed, but they were
denied the privilege Subsequently the board
adjourned till o'clock p. M. when they again
met pursuant to adjournment and the oath
a Justice of the Peace, All the members be-
ing present, they voted to adjourn until Mon
day, April 6, 1874.
The record account of the other body claim
ing to be the common council is then given,
and the regularity of the first BODY sustained.
The mode adopted by those holding certih-
Gates of election has not only the sanction of
the common usage of similar public bodies, but
so far back as the recoro now before me extends,
it is the one W which the common council of Bid
deford has been governed for several years; and
this year it had the sanction of eighteen of the
sworn but after they were sworn, and after
they had elected President, and had passed
upon the matter of membership of Tarr and
Wakefield. To be sure no CLERK of the COM
mon council was elected on the 10th of;March,
and neither does he, like the city clerk, by the
positive provisions of the charter hold over un-
til another is elected. But the former clerk
acted as clerk. No one objected. 1t was not
even suggested that the record made and sign
ed by him as clerk, sin any respect untrue. His
record, made in the regular book of reeordsof
the common council, was read and approved
after the election of a clerk pro tempore. He
was then clerk de facto, and his record is
valid. All public officers, Judicial or ministe-
rial, whether claiming by election or appoint
ment, and whether holding under defective
title within the term or in possession, and ex-
ercising the office under color of right beyond
the term affixed to it by law, may be officers de
fdcto. and their acts cannot be questioned in
any collateral matters
The decision concludes in these words: "Af-
ter as careful consideration as my present
pressing duties will permit of the particular
matter before me, without expressing any
opinion upon the merits or dement's OF any of
the parties to it, or approving or disappearing
here what have no authority to judge, my
judgment is that the motion to dissolve must