voted, and every man who had a right to vote was permitted to do so. But it needs no argument to show that if persons properly entitled to vote were prevented by force from. attending the meeting and voting, and others who had no right to vote were present and

moved to elect a temporary clerk on the ground that the duly elected clerk refused to call the names of Sullivan and Hebert. The president declared the motion out of order, and declined to admit an appeal. Thereupon the councilman put the motion himself, and was elected temporary clerk; did vote and determine the election, that he calling the names of Sullivan and Hebert, and omitting the names of Kernan and Coombs. The roll of the common council was called by Kerrigan, including Sullivan and Hebert, but excluding Kernan and Coombs, and on this roll call it was voted to concur in the order for a joint convention. Then the regular clerk went to the chamber of the mayor and aldermen, followed by the socalled temporary clerk, and presented to the mayor the common council's indorsement upon the order for a joint convention, to wit, "Voted not to concur. Eugene Cloutier, Clerk." The temporary clerk informed the mayor that he had been elected temporary clerk, and was directed by the mayor to make an indorsement, which he did in these words, "Voted to concur," and joint convention was in order, and they signed it. The mayor then ruled that board go to the common council room, where an election was had, wherein these respondents were voted for and declared elected, Sullivan and Hebert being allowed to vote, and their votes being necessary to an election, while Kernan and Coombs were not allowed to vote. The public were still excluded from the room. In this joint convention 15 voted, including Sullivan and Hebert. All others retired from the chamber. The city council of Lewiston consists of 7 aldermen and 21 councilmen. Later the appeal from the decision of the presiding justice in the election petition was affirmed by the Supreme Court, and Kernan and Coombs were declared elected to the common council. After the decision of the law court another convention was held May 19, 1913, regular in form, at which these petitioners were elected respectively to the several offices, and they have brought these petitions.

the election should be declared void. So that ultimately the question resolves itself as to whether Sullivan and Hebert had been legally unseated and Kernan and Coombs legally seated.

The defendants say first that section 70, before referred to, virtually repealed that provision of the city charter of Lewiston which provides that each board of the city government "shall judge of the election of, its own members," and, secondly, that, inasmuch as the petitioners resorted to the court to have their election determined, and inasmuch as the question was still before the court, the defendants having a right to appeal, that the city council then had no jurisdiction, and could not lawfully unseat Sullivan and Hebert.

The petitioners contend that the election of April 4th was void for two principal reasons: First, that the meeting was not public, as the charter of the city of Lewiston requires, and therefore that the proceedings were void; secondly, that the election of April 4th was void on the ground that two persons authorized to vote were not permitted to vote, and that two persons unauthorized to vote did vote, and that their votes were necessary to make a quorum and accomplish the election.

Although the election was not public in any proper sense of the word, I do not place my decision upon that ground.

Although the convention was held under circumstances forbidden by the charter, I do not think it necessarily follows that the

I do not take that view of it. Undoubtedly the action of the court upon a petition in the end is binding; but I do not think the fact that these two councilmen petitioned the court to have their rights definitely determined in accordance with the statute prevented the city council, which had rights in the matter and represented the public, from taking such action as they saw fit. The right of the council to determine its own members is primary, subject to revision of the court, and, until the court has decided definitely as to the legality of the election of the members, it seems to me that it was within the power of the common council to pursue the power given them by the charter.

So that I conclude that the election held by the joint convention on April 4th was void, and that no one of the officers there elected has any title to his office.

There are some special objections, however, raised, which it is necessary to consider. It is claimed in defense that the petition of La Croix and Keene, claiming to be elected assessors of taxes, cannot be maintained, for the reason that the jurat attached to the petition does not contain the name of W. S. Keene. The petitioner Keene moved for leave to amend the petition by having his name inserted in the jurat. I find that as a matter of fact the petition was signed by Keene, and that he made oath to it, but by inadvertence his name was left out of the jurat I think the error is amendable, and I grant the amendment prayed for. In both conventions each assessor was elected for the term of three years; but it is claimed that that is error, that one of the assessors should only have been elected for two years. It appears that some years before that an assessor had resigned after serving only one year, and

nally enacted related only to an election by the people, and was subsequently compiled in that chapter of the statute which related to elections, it should now be construed only with reference to its original purpose, and to the context, and be limited in its application to elections by the people.

years, when he should have been elected only it is asserted that, as this section as origifor the unexpired balance of the term of his predecessor, so that at the time of the election in April there was a vacancy for one entire term of three years and another vacancy for two years of an unexpired term, and it is claimed that, these petitioners having joined in a petition, it is impossible to tell which is entitled to the three-year term and which to the two-year term. But I do not think that follows.

The records show that in the convention of April 4th George A. Welch was first declared elected assessor for the term of three years. That being so, the only remaining assessor to be elected was one for two years, and, although George Z. Bernier was recorded as elected for a term of three years, his term necessarily would be limited to two years. And so of the election held by the latter joint convention, when the petitioners were elected. John La Croix was first elected assessor of taxes for three years. Keene was afterwards elected to the remaining vacancy, which was really only for two years, although otherwise recorded. So that John La Croix is the petitioner claiming the office to which George A. Welch was declared elected, and W. S. Keene the claimant for the office to which George Z. Bernier was declared elected.

It is further contended in defense that Patrick F. Tremblay, claimant of the office of collector of taxes, is not entitled to maintain the petition, because he has as yet filed no bond. It appears in evidence that he has taken the oath, that the board of mayor and aldermen have not fixed the amount of his bond, and that the board has held no meeting since election. Under these circumstances, I think he is entitled to maiu. tain the petition.

The petition in each case is sustained with

costs.

The Opinion.

But the history of this legislation shows that this section, in its inception, was not an amendment of the election statute, but an original act, very properly codified, upon the revision of the statutes, in the chapter relating to elections under the heading, "Contested Elections." But it should also be observed that the first section, 68, under the heading "Contested Elections," relates to contests in the House of Representatives, which, of course, may involve questions entirely distinct from those of election by the people. Accordingly, the context was not intended to confine all the proceedings which might arise under this heading to those of popular elections. Our conclusion therefore is that, while the context is to be considered, and under certain conditions may be entitled to great weight, it is not by any means controlling.

The

[3] While this statute originally related to elections by the people, it was amended in 1893, so that instead of reading, "any person claiming to be elected to any county office," etc., it was made to read, "any person claiming to be elected to any county or municipal office," etc. As stated by Chief Justice Savage, this language is very broad, and when given its usual and original meaning includes "any municipal office." same scope is given this language in Curran V. Clayton, 86 Me. at page 54, 29 Atl. at page 934, in which former C. J. Whitehouse says the act of 1893 "extended the scope of this statute to include a contest for 'any municipal office.'' While it is true that the intention of the Legislature is the law, when that intention can be unequivocally deter[1, 2] The first question raised is one of mined, it is equally true that that intention jurisdiction. Section 70, c. 6, R. S., under cannot be ascertained by adding to or dewhich the petitions are brought, reads as tracting from the meaning conveyed by the follows: "Any person claiming to be elected plain, unambiguous language used. Such to any county or municipal office, or to the language is regarded in law as the vehicle office of county attorney, may proceed as in best calculated to express the intention of equity against the person holding or claim- the Legislature. We discover nothing in the ing to hold such office, or holding a certifi- context or the consequences which furnishes cate of election to such office, or who has adequate reasons for departing from the rule been declared elected thereto by any return- of literal interpretation. There is nothing ing board or officer, or who has been notified in the literal meaning of the language, or the of such election, by petition returnable be- purpose conveyed by its use, in conflict with fore any justice of the Supreme Judicial the context, or repugnant to a just and benefCourt, in term time or vacation, in the coun-icent result, nor is the language technical. ty where either party resides, or where the In such a case our court have said (Davis v. duties of such office are to be performed, and said court shall have jurisdiction thereof." It is contended by the appellants that this section is intended to apply only to an office involving an election by the people, and not to a contest involving an election by a

Randall, 97 Me. 36, 53 Atl. 835): "When clear and unequivocal language is used which admits of only one meaning, it is not permissible to interpret what has no need of interpretation." This language was approved in the Opinion of the Justices in

question propounded by Governor Plaisted. | able, corrupt, or willfully oppressive.'
It was here further said: "It has according-
ly been distinctly stated from early times
even to the present day that 'judges are not
to mould the language of statutes in order
to meet an alleged convenience or an alleged
equity, *
and are not to alter plain
words, though the Legislature may not have
contemplated the consequence of using
them.'" Endlich on the Interpretation of
Statutes, § 4, says: "When, indeed, the lan-
guage is not only plain, but admits of but
one meaning, the task of interpretation can
hardly be said to arise. Such language
best declares, without more, the intention
of the lawgiver, and is decisive of it. The
Legislature must be intended to mean what
it has plainly expressed, and consequently
there is no room for construction. It is
therefore only to the construction of stat-
utes whose terms give rise to ambiguity,
or whose grammatical construction is doubt-
ful, that courts can exercise the power of
controlling the language in order to give
effect to what they suppose to have been
the real intention of the lawmakers. Where
the words of the statute are plainly expres-
sive of an intent, not rendered dubious by
the context, the interpretation must con-
form to and carry out that intent. *
Where, by the use of clear and unequivocal
language, capable of only one meaning, any-
thing is enacted by the Legislature, it must
be enforced, even though they be absurd or
mischievous. If the words go beyond what
was probably the intention, the effect must
nevertheless be given to them."

"As these provisions are in the chapter bearing the title, 'Of the Regulation of Elec. tions,' and under the fourth article, entitled 'Penal Provisions and Regulation, Affecting the Purity of Elections,' it is now urged, in argument for the plaintiff, that they are limited to such official acts and neglects as are mentioned in that chapter."

This is the precise construction urged in giving an interpretation to section 70, R. S. c. 6. But the court proceeds to say, respecting this contention: "Neither its title, nor the preamble, forms any essential part of an act of the Legislature. The latter has fallen into disuse with us, and the former can never be regarded as a safe expositor of a law which is plain and positive in its provisions. Mills v. Wilkins, 6 Mod. 62; United States v. Fisher, 2 Cranch, 386 [2 L. Ed. 304]; 1 Kent, 460." Reference is then made to the rule of construction (R. S. 1841, c. 1,

3) as to the force which should be given to the title of an act (now R. S. c. 1, § 6, par. 28) which, with the change in the phraseology, reads, "Abstract of titles and chapters, and marginal and other notes are not legal provisions." The opinion then proceeds as follows: "The terms of the sixty-second sec*tion, before quoted, are general, and apply to all cases and to all the official acts of every officer of every city, town, or, plantation in the state, whether his official duties are connected with elections or otherwise. They are not to be restricted by the title of the act, and, to avoid a forfeiture, they should receive a fair and liberal construction. It standing alone, as a separate enactment, there could be no doubt that they would apply to all cases of official neglects by the class of officers mentioned, and as they stand now upon the statute, unrestricted by the title, and unconnected with other sections, they are to be construed in the same manner, and by the same rules, as if they constituted an independent enactment."

[4] The statement that "the plain language is to prevail when not rendered dubious by the context" does not apply in the present case. The act of 1880, as amended, should not be considered with reference to the other provisions of chapter 6. This was an original act. It did not amend or relate to any other statute. It was entitled, "An act providing for the trial of causes involving the right of parties to hold public office." Chapter 198. The fact that it was incorporated by the commissioner on revision in the election chapter gives it no constructive relation to that chapter. It did not amend it. It did not allude to it. It stood alone, and, as amended, stands alone now, so far as the rest of chapter 6 is concerned. Harlow v. Young, 37 Me. 88, is a case in point, involving the construction of a statute with reference to the context of the chapter, to whose general provisions it relates, and in which it is found. The contention in favor of the construction, with reference to the subject-matter of the chapter where found, is fully stated by the court as follows: "It is provided by R. S. c. 6, § 62, that 'in no case, shall any officer of any city, town or plantation, incur any punishment or penalty, or be made to suffer in damages, by reason of his official acts

[5] The plain meaning of the language in section 70, "Any municipal office," is strengthened rather than weakened by the context of the act of 1880, with reference to which alone it is to be construed. Section 73 in the present statute, which comes from the act of 1880 unchanged, supports this conclusion. This section specifies an office in which the incumbent has papers, records, moneys, and property. Such an office is entirely consistent with the municipal office of a treasurer, clerk, or assessor of a town or city. In other words, we are unable to find any provision in the context of the act of 1880, as amended in 1893, that is inconsistent with the conclusion that the language of the amendment of 1893 was intended to include any municipal officer, whether elected by the people or by the city

Moreover, it seems almost a reflection | It equally prevents usurpation and fraud. upon the intelligence of the Legislature to It protects the officer legally elected. It assume that it did not know the meaning conserves honest elections. It can injure of the phrase, "municipal office," and use no one. As literally expressed, it is a benefit advisedly. It is also true that the munic-icent law.

ipal officers who administer the affairs Under these rules, so familiar that an of cities, under the city council, are the real apology almost seems due for quoting them, administrative agents of the city, charged we are unable to discover any principle of with important and continuous responsibil- construction which authorizes the court to ities, and accordingly, on account of their interpret language so plain and certain that great importance, would as readily engage it cannot be misunderstood. the attention of the Legislature as the board of aldermen or common council.

But it is not necessary to rest upon the rules of interpretation to reach the conclusion that the court had jurisdiction. Since the enactment of the statute in 1893, our court has twice taken jurisdiction, under the statute, of cases embracing the precise issue presented in the questions before us; the first involving the petition of a city treasurer, the second the petition of a tax collector. Redington v. Bartlett, 88 Me. 54, 33 Atl. 664, was decided in May, 1895, two years after the amendment of section 70, as it now stands. This was an appeal in equity heard on petition, answer, and testimony brought to this court by the defendant, as provided in R. S. c. 4, § 55, relating to contested elections. Section 55 is now section

[6] Another important rule of construction to ascertain the evident intention of the Legislature is that we may "look at the object in view, to the remedy to be afforded, and to the mischief intended to be remedied." Under this rule it would seem not at all improbable that it was the active intent of the Legislature to apply the procedure prescribed in section 70 to all elective offices, county and municipal. Previous to this enactment, the only way in which a party claiming to have been elected to an office, could determine his right was by quo warranto to test the title, and, if successful, by mandamus to secure the office. This proceeding was so slow in accomplishing 72, R. S. 1903, under which the present apthe purpose of the law that an annual office usually expired before the litigation could be terminated. This delay affected equally a state, county, or municipal office. To obviate the result of this ineffective remedy, the Legislature in 1880 enacted the statute, providing that county officers and county attorneys might proceed as in equity to The next case is Smith v. Randlette, 98 have their claim to an office determined, | Me. 86, 56 Atl. 199. This was a petition and and that an appeal, if taken, including the appeal under these same statutes; the petiprinting of the record and arguments of counsel on both sides, should all be accomplished within 60 days, and that, instead of waiting for the sitting of the law court, the case should be certified to the Chief Justice, and, in the language of the statute, "thereupon the justices of said court shall consider said cause immediately."

peal was taken. The opinion was a per curiam containing the entry only, "Appeal dismissed, decree below affirmed." This decision was concurred in by Peters, C. J., and Walton, Emery, Foster, Haskell, and Wiswell, JJ. The decree was issued by former Chief Justice Whitehouse.

tioner claiming to have been elected to the office of tax collector of the town of Richmond against the respondent, who had been appointed to that office by the selectmen of the town. The court assumed jurisdiction, and sustained the bill. In neither of these cases was the question of jurisdiction raised, and, while they may not be regarded as full precedents for the jurisdiction of the court under this statute, they must, nevertheless, be regarded as carrying a weight of authority little short of a precedent. Inasmuch as jurisdiction lies at the foundation of judicial action, it is hardly possible that that question in these cases could have escaped the notice of the 11 judges who considered them, and the eminent counsel who presented them. It may be, however, that the language conferring jurisdiction was so broad, clear, and certain that it did not suggest the want of jurisdiction to either court or counsel. In Curran v. Clayton, 86 Me. 42, 29 Atl. 930, in which this statute was discussed, the court say: "It has been the policy of the

Can there be any doubt in view of the object, remedy, and mischief to be corrected that the Legislature intended by the act of 1880 to give the claimant of a county office, or the county attorney, a direct and speedy process to determine his rights? In 1893 this statute was amended SO as to include "any municipal office." With these same ends in view, the object, the remedy, and the mischief to be corrected, can any reason be assigned why the Legislature should give an alderman or councilman this speedy remedy, and withhold it from a city collector? Was it the intention of the Legislature to differentiate between these claimants? Is the mischief to be remedied less flagrant in the one case than in the other? Legislature of this state to enlarge rather Does not every fair and reasonable consideration prevail for the application of the remedy in the one case as strongly as in the

than to restrict the admitted power of the court to inquire into the regularity of election."

sions of the court, we think the legislative | E. 216. This premise, then, may be regarded will must be regarded to have been expressed as settled. in the plain language of the amendment of 1893. It is accordingly the opinion of the court that the ruling of the Chief Justice in exercising jurisdiction of these cases must be sustained.

These contentions are untenable. The act of 1880, as amended in 1893, did not, by necessary implication, repeal these section's of the statute. Curran v. Clayton, 86 Me. 42, 29 Atl. 930. Nor did it confer upon Ker-specific hardship should not be permitted to nan and Coombs the power, by selecting another tribunal, of depriving the common council of jurisdiction to pass upon the election of its own members.