O'brien v. Fuller

• Court: New Hampshire Supreme Court
• Citation: O'brien v. Fuller, 93 N.H. 221, 39 A.2d 220 (N.H. 1944)
• Decision Date: 20 September 1944
• Parties: O'BRIEN v. FULLER, Secretary of State, et al.

39 A.2d 220

O'BRIEN

v.FULLER, Secretary of State, et al.

Supreme Court of New Hampshire.

Sept. 20, 1944.

Exception from Superior Court, Hillsborough County; Young, Chief Judge.

Mandamus by Thomas F. O'Brien against Enoch D. Fuller, Secretary of State, and others, to compel named defendant to substitute plaintiff's name in place of that of John Laplante as the Democratic candidate for sheriff of Hillsborough County, wherein Alphonse Roy appeared and answered. From the decree all parties bring exceptions.

Petition dismissed.

Petition for a writ of mandamus. Hearing before Young, C. J., who made the following findings, rulings, and decree:

“This is an action begun by a petition whereby the plaintiff seeks to compel the defendant to substitute the plaintiff's name in place of that of John Laplante as the Democratic candidate for sheriff of Hillsborough County on the official ballots to be used in that county in the general election in November next.

“Mr. Fuller appeared by counsel who filed a written answer and was also present in person and testified.

“Mr. Alphonse Roy, who although not named in the petition as a party, was included in the order of notice and was served with a copy in hand by a deputy sheriff, appeared by counsel who filed a written answer and took an active part in the hearing; he also appeared in person but did not testify.

“At the beginning of the hearing counsel for Mr. Fuller made an oral motion to dismiss upon the grounds that as Secretary of State, being charged by law with the duty of preparing the ballots, the defendant's decision as to what candidate in any particular instance was duly nominated and in case of conflict whose name should go on the ballot was in the nature of a finding of fact and judgment which could not be reviewed by the Court. The motion was denied subject to exception.

“The jurisdiction of the Court was questioned, it being suggested that the petition is in the nature of a mandamus proceeding, whereas it should have been certiorari or quo warranto. Following the practice which has obtained in this State for many years and believing that the object desired and the determination of what should be done in the premises are of greater importance than the name and form of the process employed, the Court proceeded upon that theory. Furthermore, the Attorney-General appeared by the Assistant Attorney-General as counsel for the defendant and so might object to lending the use of his name or title to the plaintiff and if the plaintiff could use either without the Attorney-General's consent or over his objection it becomes merely conventional surplusage.

“Mr. Roy in his answer raised the point that the Ballot Law Commission has exclusive jurisdiction of the issues involved in the case. [R.L. c. 33, § 97.] Even if such is the fact, the Court can review the action of the Ballot Law Commission, on matters of law anyway, and as the questions here involved are mostly questions of law and as it is exceedingly important that the ballots be printed at once in order to allow distribution to voters in the armed forces, the Court assumed jurisdiction, to which the defendant, Fuller, and Mr. Roy excepted.

“All concerned agreed that Mr. Laplante was nominated as the Hillsborough County Democratic candidate for sheriff at the primary election; that his name was put on the official ballot as such, and printing began at once; that on the 16th of August he died; that at what purported to be a meeting of the executive committee of the Democratic State Committee held in Concord August 18, Mr. Alphonse Roy was chosen by that committee to fill the vacancy; that the Secretary of State was immediately notified of the action of this committee; that the secretary substituted the name of Mr. Roy for that of Mr. Laplante and began anew the printing of the ballots; that at what purported to be a meeting of the Democratic county committee of said county held at the county court house in Manchester in the afternoon of August 23, the plaintiff, Mr. Thomas F. O'Brien, was chosen by that committee to take Mr. Laplante's place on the ballot; that the Secretary of State was notified by registered letter dated August 24 and received by him August 25 of the action of the county committee, but he declined to recognize its authority and refused to put Mr. O'Brien's name on the ballot; and that the plaintiff's petition was filed with the clerk of court August 25, and service made at once.

“The plaintiff claims that the executive committee of the State Committee had no authority.

“As to the organization and doings of the executive committee the Court finds: that at the Democratic State Convention held at Concord August 1, two resolutions were adopted, one fixing the number of the State Committee, the number of the executive committee and the number of the members of each county committee, and the other providing that all vacancies on the ticket should be filled by the executive committee or anyone it might designate; that sixty members were allotted to Hillsborough County as the county committee, four of whom should be members of the State Executive Committee; that the State Executive Committee was made up of four members from Hillsborough County and two from each of the other nine counties, making a total of twenty-two members; that a meeting of that committee was held at the Eagle Hotel in Concord August 18, upon call of the chairman of the State Committee; that it did not appear how the members were notified or how the call was sent out; that of the twenty-two entitled nine appeared in person and seven by proxy, making a total of sixteen present and represented, which constituted a majority; that the four members from Hillsborough County were notified, attended and participated in the proceedings; that by a majority Mr. Roy was designated as the candidate to replace Mr. Laplante; that said committee was created and organized in the usual manner; that its meeting of August 18 was properly called; and that if it had the legal authority to act in such instances its action was regular and in due form.

“Mr. Roy, while claiming that the county committee had no authority, sought to show that it was not legally elected; that its meeting which nominated the plaintiff was not properly called; and that those who were not members took part and voted. The plaintiff objected on the ground that the qualifications of the members could not be attacked or passed upon by the Court in these proceedings. Assuming that whatever this Court does the case will probably be transferred, it seemed advisable that all the facts should be found so far as possible, and the plaintiff's objection was overruled subject to his exception.

“With respect to the county committee, the Court finds: that at said State Convention, after the passage of the resolution fixing the number of members in each county, the party nominees and state delegates of each county met and elected a county committee as provided by law; that the Hillsborough county delegation met and organized in the usual manner by the election of a chairman and a secretary; that it then proceeded to elect a chairman and secretary of the county committee and four members of the executive committee of the State Committee; that a list of the members of the county committee for the previous two years had been furnished; that after some discussion it was voted that the county committee should consist of the same members as were elected to the county committee in 1942, subject to the filling of vacancies and such changes as might be made by towns and wards to be reported to the State Executive Committee; that this of course left the ultimate personnel of the committee indefinite, but the system evidently suited the delegation which had the sole power to create the committee; that some changes were made in the list; that the list was then turned over to Mr. Lucier to be delivered to the secretary, Mr. Velishka; that while in Mr. Lucier's hands and probably with the knowledge of Mr. Velishka, by consultation with party workers and local chairmen of local committees, other changes, including substitutions and additions, were made, which were not substantially in conflict with the vote of the county convention; that the revised list was furnished the county chairman who issued a call for the meeting of August 23 by postal card, stating the place, time and purpose of the meeting; that previous to the meeting the chairman appointed a credential committee, who passed on the...