Attorney Gen. v. Sands

• Court: New Hampshire Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Attorney Gen. v. Sands, 44 A. 83, 68 N.H. 54 (N.H. 1894)
• Decision Date: 27 July 1894
• Parties: ATTORNEY GENERAL ex rel. GREGG v. SANDS.

44 A. 83

68 N.H. 54

ATTORNEY GENERAL ex rel. GREGG

v. SANDS.

Supreme Court of New Hampshire. Hillsboro.

July 27, 1894.

Information, in the nature of a quo warranto, on relation of William A. Gregg, filed by the attorney general, alleging the relator's election to the office of mayor of Nashua, and usurpation of the office by the defendant Thomas Sands. The question which of the candidates received a plurality of votes was contested, and the city councils, in convention, heard the parties, and determined it in favor of the defendant. The relator claimed that certain ballots counted by the convention for the defendant were not properly marked as votes for him, and that, if they were rejected, the relator was elected. Information dismissed.

John M. Mitchell, for relator.

Frank N. Parsons, Edward H. Wason, and Charles J. Hamblett, for defendant.

PER CURIAM.¹ It is provided in Pub. St. c. 47, § 2, that "the city councils shall meet in convention oh the day appointed by law or ordinance for that purpose, and the city clerk, having entered upon the record the number of votes given in each ward for every person voted for as mayor, shall lay before the convention the returns of such votes, and the convention shall examine the same and declare the person who has the largest number of votes to be elected mayor and cause him to be notified of his election." Section 3 provides that, "in case the election of mayor is contested, the city councils in convention shall have power to send for persons and papers, may inquire into the correctness of the returns, and shall hear and receive evidence as to any fraud or misconduct in relation to the election; and for that purpose may adjourn from time to time, not later than the time appointed for the convention of the new city councils." The question presented is whether the decision of the city councils of Nashua that the defendant was elected mayor is conclusive, or whether it may be again litigated in this proceeding. "As the election officers perform for the most part ministerial functions only, their returns * * * are not conclusive, * * * but the final decision must rest with the courts. This is the general rule, and the exceptions are of those cases * * * where a special statutory board is established with powers of final decision." Cooley, Const. Lim. 735. "When the statute creates a special tribunal, and prescribes special proceedings for the trial of contested election cases, and the tribunal to which the jurisdiction is given is vested with full powers to adjudicate all questions involved in such cases, the courts will not take jurisdiction by quo warranto at common law." Paine, Elect. § 860. This is a mere application to election cases of the general rule that "when the legislature intend a court's decision of questions of fact shall be revisable by another tribunal on a new trial of the whole case, whether there is error of law or not, an appeal is ordinarily provided." Boody v. Watson, 64 N.H. 162, 186, 9 Atl. 794, 812. When no appeal is provided from the decision of the constituted tribunal on questions of fact properly before it, the inference is that the legislature intended that the decision should be final. In Gregg v. Goodrich, 67 N.H. 543, 42 Atl. 240, it was settled that the city councils in convention are not only a board of canvassers of the election returns for mayor, but also a tribunal empowered to try and decide all questions of law and fact involved in his election. Being judges of the election, with all the power that this court has in a quo warranto proceeding to hear and weigh evidence and decide questions of fact, they come within the general rule above mentioned. Doughty v. Little, 61 N.H. 365. If there are exceptions to this general rule, the present case is not one. On the subject of an exception the statute is silent, and there is no evidence from which it could be inferred that an exception was intended by the legislature in cases of this character. There is no more evidence of a legislative purpose that the convention's findings of fact may be retried in this court, than that the findings of fact by fence viewers may be reviewed in the same way. Pub. St c. 143, § 19.

The fact that the statute giving the convention power to adjudicate upon the subject of the election of a mayor contains no express language making their decision final and exclusive does not amount to a demonstration that the legislature intended that the case might be retried in this court on a proceeding like the present one. It is evidence having some bearing upon the question of legislative intent, and in the absence of other evidence it might be conclusive. But it does not exclude all other evidence of the force and effect of statutory language. Article 21, pt. 2, of the constitution provides that "the house of representatives shall be judge of the returns, elections, and qualifications of its members." Article 34 provides that "the senate shall be final judges of the elections, returns, and qualifications of their own members." No one would claim that the use of the word "final" in the last article renders the determination of the title of one of its members by the senate more binding than a similar finding by the house in regard to the title of one of its members. The result in either case is a final adjudication of the facts. "Each branch [of the city councils] shall be the final judge of the election and qualification of its members, and if any election is contested shall have the same powers to ascertain the facts as the city convention have in regard to the election of mayor." Pub. St. c. 48, § 11. If the word "final" had been omitted, it would have been difficult to distinguish between the power of each branch of a city government under this section and the power of the house under article 21. There are authorities that maintain such a distinction (People v. Hall, 80 N. Y. 117, 120-123; Com. v. Allen, 70 Pa.St. 465), but they are based on a rule of construction, and not on the intention of the legislature found as a fact from competent evidence. The rule they are based upon is that, unless the law conferring power to try election cases on a special tribunal provides expressly or by necessary implication that its action shall be final, the jurisdiction of the higher courts remains, and that of the special tribunal is concurrent, temporary, and subordinate. 1 Dill. Mun. Corp. § 202. By applying this rule to statutes...