Pickering v. De Rochemont , 66 N.H. 377 ( 1890 )

"Any person, whether male or female, but in all other respects except sex qualified to vote in town affairs, may vote at any school-district meeting in the district in which such person has resided and had a home one month next preceding such meeting." Laws 1878, c. 46. As a consequence, the transaction thereafter of school business at the annual town-meetings in Newington ceased to be valid, and the subsequent election thereat of de Rochemont and Stopford as the board of education was illegal and constituted them officers de facto merely. Nevertheless, as such officers, it was their legal right (Jewell v. Gilbert, 64 N.H. 13, Prescott v. Hayes,42 N.H. 56, 58, Williams v. School District, 21 Pick. 80) as well as their statutory duty (G. L., c. 87, ss. 1 and 2) to call the annual school-meeting of the district by seasonably issuing and posting their warrant therefor "fourteen days at least prior to the day of meeting." They did call a meeting accordingly, to be held on March 19, 1890, but after the warrant was posted, and within fourteen days of the time so appointed, the date of the meeting was changed by one of them to March 18, and the meeting was illegally held on that day, and two of the plaintiffs were elected members of the board of education. They do not, however, claim by virtue of this election, for subsequently, and upon petition of three or more voters of the district, a meeting was called by a justice of the peace, at which all of the plaintiff's were elected as the board of education and took the oath of office.

To the legality of this meeting the defendants make various objections. The first is, that the petition did not set forth any adequate reason for calling the meeting, and that the reason alleged in the warrant is insufficient. The allegation of the petition is, "that the annual meeting of said town of Newington has not been legally held," and this allegation is recited in the warrant; whereas the contention of the defendants is, that the statute (G. L., c. 87, s. 4) empowers a justice to act only when the proper school officers neglect to call such meeting, and that in this instance they did seasonably call the meeting. But they did not legally call it. An illegal warrant is no warrant within the statutory intendment. The term "warrant," as used in the statute, means a legal warrant; and if school officers upon whom the duty is imposed fail to issue and post such a warrant, it is a neglect to issue the warrant the statute requires, and empowers a justice of the peace to act in their stead. And if the fact of such neglect actually exists, in the absence of statutory requirement that the petition or warrant should recite it, we think it may be shown by evidence aliunde. See Goulding v. Clark, 34 N.H. 148, 159, Williams v. School District, 21 Pick. 80, Fletcher v. Lincolnville 20 Me. 439, Sherwin v. Bugbee, 16 Vt. 444, Morrison's Town Officer (ed. 1876) 323.

The second objection is, "that the warrant is not addressed to the persons qualified to vote in school affairs in the town of Newington, but is inaccurate and misleading." It is addressed "To the inhabitants of school-district No. 1 of the town of Newington, qualified to vote in district affairs." There being but one district in town, the designation of it as No. 1 is not of controlling importance, even if it be incorrect. There is, however, no evidence that the title or name used is not the correct one, nor does it appear that anybody has been misled by it.

The remaining objection is, that "the warrant and the action of the voters defining the term of office of each member of the board of education, or electing them to a longer term of office than that fixed by statute, was illegal." Assuming that the election of two of the members was for a longer term than the statute permits, their election was valid for the statutory term. The longer includes the shorter term. But the provision as to the manner in which the terms of office of the several members of the board are to be determined (G. L., c. 87, s. 18) is to be regarded as directory merely.

Holding the meeting called by the justice to be legal, it follows that the defendants are not rightfully in office.

Petition granted.

CLARK, J., did not sit: the others concurred.