Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1903-04-09
Quo Warranto Proceedings Brought
by Him against Mayor Hawley.
Alleges Mayor Hawley Has Unlawfully
Usurped the Office - Judge Start
Makes the Complaint Returnable
at the May Term of Supreme
Court-Ths Brown. Maloney
Report.

], +. Burke. through his attorneys, v.
a. Billiard and j. y. Brown, brought quo
warranto proceedings MONDAY TO make
Mayor ilaWlcy show why ne II huIdhS
office. Mr. Burke declared at the time
of the election that he was legally elect
ed at the polls and said that if DR.. Haw-
ley ever took the oath of office he should
.ndeaVor to have MIN removed Mir.
Burke bases his claim on the ground that
al ballots marked for him We're, through
81 mistake of the clerk, II. ii. McCale, IN
ward five, lett out of the returns and
that if they had been included ne would
have been elected.
AS soon as he had made his protest to
the board of aldermen against Mayor
1lawlcy, MIR. Burke had papers drawn up
by States Attorney Leary stating his
claims. These were presented to Judge ii.
H. Start when county court adjourned.
The complaint alleges that DR.. liaWley
has unlawfully usurped the office of may
or and is now exercising the privileges
nf the office. Mr.. Burke sets up that he
was legally elected and praIs for ali nee
ossary orders for notice of the complaint
and for answer thereto. for the taking
of testimony, for the unseang of the
packages and the recounting of the bal
lots contained therein and Tor the time
and place of hearing the cause.
Judge Start ordered that the complaint
be returnable at the May term of supreme
court at Montpelier, that notice of the
compliant and OF the order he served
upon Or. Ilawlcy, that answer thereto be
made within six days of such service and
that the testimony in the case he taken
on six days notice to the adverse party
and all testimony to be taken and filed
before May l..
Notice of the complaint and order was
served yesterday afternoon upon Mayor
GIawey by Deputy Sheriff j. i. Brodie.
a special master will be appointed to take
the testimony in the matter.
The question of the corrected returns
filed in ward five was referred to City
Attorney r. +. Brown. and r. ". Molo-
ney of Rutland was associated with him
in the matter. The question submitted
was whether the ward clerk could legally
file corrected returns and the city clerk
legally proceed to rocanVasS the vote of
the city and certify, record nd publish
the result as affected b. such corrected
returns.
In making their report Mr., Brown and
Mr.. Mooney said: Prom a careful in
spcction of the authorities upon this qucs-
ton w are satisfied that the duties of
these officers are purely ministerial, and
that they are clothed with no dIscrction-
ary power; that having once fully per-
formed a duty imposed upon them by
law they can neither recall nor correct
what they have done. As regards such
duties once performed they are fUnctus
ofIicio Having one acted, the result
like the erroneou verdict of jury in
court must stand until SGT aside by the
proper tribunal. Upon this subject we
md no material conflict of authority.
Upon the question of the legality Of
the II votes and as to who in fact was
legally elected mayor We offer no opin-
iOn as il would be entirely outside tho
question submitted to US"