Osgood v. Jones

Motion, for a recount of the votes cast for treasurer of this county at the last election, and for a trial of the question whether the plaintiff or the defendant was elected. The motion was made by the plaintiff at this term, before the result of the town-clerks’ returns was declared.

Tbe votes cast in a town-meeting are counted and publicly declared by tbe moderator. G. L., c. 31, s. 9. And as be can count and declare only tbe votes of bis own town, tbe result of tbe moderators’ counts of tbe votes cast for county officers in all tbe towns of a county is necessarily found by some tribunal from some evidence of tbe moderators’ official declarations. Tbe statute makes it tbe duty of tbe court to ascertain tbis result from tbe town-clerks’ returns. G. L., c. 24, ss. 3, 4, 5. Tbis statute requires us to find and declare, not wbo are elected, but wbo appear by tbe returns to be elected. It imposes tbe ordinary duty of a canvassing board, and not tbe duty of judges of tbe election. By tbis and other statutory provisions, both duties are assigned to tbe same persons; but the law does not require tbe. latter duty to be performed before tbe former. And, without examining tbe question of our power to grant tbe plaintiff’s motion at tbis time, we deem it inexpedient to make tbe investigation asked by him before tbe declaration of tbe result of the returns. At some time after that declaration tbe plaintiff will have an adequate remedy for any error that can be corrected, in a proceeding requiring tbe performance of tbe duty of judges of tbe election. Until tbe returns are combined and declared, we decline to go beyond tbe duty of a canvassing board.