Fiske v. Murphy

This is an action brought to require the respondents to show by what authority they hold certain offices.

The very nature of the action places upon the respondents the burden of proof.

They purport to hold office and to function by virtue of an election held on June 3, 1939. •

The evidence clearly shows that the election was not held in accordance with law in that no proper election officials conducted the election; no proper check list was used; the notice was not properly signed.

The claim that this illegality was ratified carries its own denial. There is, and must be, a distinction between ratification of a faulty private act and that of a public act not performed in accordance with the requirements of the law.

The first attend upon the private will of the parties. The second upon the public law, whether expressed in charters or statute.

The meeting at which the alleged ratification is claimed to have been had was not called or held in accordance with the *429 requirements of the law nor was the claimed ratification such as to specifically ratify.

It is found that the respondents have not, by a fair preponderance of the evidence, sustained their burden of proof.

Judgment of ouster may enter.