Bingham v. Jewett

• Decision Date: 06 January 1891
• Citation: 29 A. 694,66 N.H. 382
• Parties: BINGHAM et al. v. JEWETT.
• Court: New Hampshire Supreme Court

29 A. 694

66 N.H. 382

BINGHAM et al.

v. JEWETT.

Supreme Court of New Hampshire. Belknap.

Jan. 6, 1891.

Bill in equity by Harry Bingham and others against Stephen S. Jewett Dismissed.

The bill alleged, among other things, that the plaintiffs were chosen members of the house of representatives which is to assemble on the first Wednesday of January, 1891, and that the defendant is clerk of the house which will dissolve, by constitutional limitation, seven days before that day, and praying that he be enjoined from placing the names of certain persons upon the roll of members of the house of 1891, for its organization. The bill was filed and presented to two of the justices in vacation, and was by them adjourned for trial by the whole court at Concord, where evidence was introduced and the case was argued and decided January, 6, 1891.

J. M. Mitohell, H. W. Parker, O. E. Branch, J. S. H. Prink, C. F. Stone, and H. Bingham, for plaintiffs. E. Aldrich, P. S. Streeter, D. Hall, and W. L. Foster, for defendant. H. E. Burnham and F. N. Parsons, for other parties in interest DOB, C. J. "The house of representatives * * * shall be judge of the returns, elections, and qualifications of its members." Const, art 22. Attested copies of the town clerk's records of the votes declared by moderators in the election of representatives (sometimes called credentials, or certificates of election. Gen. Laws, c. 35, §§ 2, 19) are returns. Const, arts. 32, 42. If the word "returns" had not been used in article 22, the house, as judge of the election of its members, would have been judge of the returns of their election. Being judge of the whole electoral question, it is judge of all evidence bearing on that question, including the returns, which are evidence of the votes officially declared in town meeting. The power of the "judge of the returns," which the constitution has vested, in the house, cannot be transferred to the court by the house or the legislature. State v. Hayes, 61 N. H. 264, 329; State v. Gilmore, 20 Kan. 551, 554; Cooley, Const. Lim. 115n, 137, 158, 504; Paine, Elect. §§ 722-727.

The defendant, in his answer, "prays the advice, instruction, and decree of the court as to his duty; and to that end he specially prays the court to inquire and ascertain what certificates will be presented, and to determine his duty in each of the forty cases named in the bill. And he also prays the advice, instruction, and decree of the court as to the right of the town of Pittsburg to representation in the house of representatives, and as to his duty if a certificate of election of a member in that town should be presented." As the plaintiffs' and defendant's united request, reinforced by express statutory approval and command, would not alter the constitution, it would not authorize the court to act as "judge of the returns," instead of the house, or with the house. A joint or concurrent or divided jurisdiction, exercisable in part by the court and in part by the house, or in the first instance by the court and afterwards by the house on appeal, is not established by the provision that "the house * * * shall be judge of the returns." The question of membership may be as...