Broderick v. Hunt
| Decision Date | 02 December 1913 |
| Citation | 89 A. 302,77 N.H. 139 |
| Parties | BRODERICK v. HUNT et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Chamberlin, Judge.
Petition by Thomas M. Broderick against Albert H. Hunt and others, as Board of Aldermen of Nashua, for the correction of errors committed by the board in hearing an election contest for position of alderman from the Fifth ward. Transferred from superior court without ruling. Case discharged.
The petition to the aldermen was referred to a committee of three, two of whom reported that each contestant had 84 votes on the first ballot, and that 28 ballots were defective, and recommended that the petition be dismissed. The minority reported that one of the 28 ballots was marked for the plaintiff with a cross made with ink, that the majority rejected it for this reason, that it should be counted for the plaintiff, and that he should be declared elected. The board voted four to four on each report, and the mayor declared the matter disposed of. At the hearing in the superior court, the presiding justice found that there were 84 undisputed votes for each contestant, the inkmarked ballot for the plaintiff, three so marked for both candidates that the intent of the voters could not be ascertained, and 24 blank. He further found that there were 85 votes for the plaintiff and 84 for Crompton.
Doyle & Lucier, of Nashua, for plaintiff.
Henry A. Burque and William H. Barry, both of Nashua, for defendants.
The defendants' claim that the court has no jurisdiction because the board has not acted cannot be sustained. Half of the board have refused to seat the plaintiff. This action is as effective a denial of his alleged right as a unanimous vote of the board would be. The question presented here is whether the action taken is legal. More than this, if it is true that the board has not acted when as matter of law it must act, an order to that effect can be made. Relief either by way of declaring the plaintiff elected or compelling the board to act upon the subject could be granted. Sheehan v. Mayor and Aldermen, 74 N. H. 445, 68 Atl. 872. The form of this proceeding is unimportant. Dinsmore v. Mayor and Aldermen, 76 N. H. 187, 81 Atl. 533.
The complaint is that the action, or failure to act, on the part of the board of aldermen, has deprived the plaintiff of a seat in the board to which he is legally entitled. In order for the plaintiff to prevail here, it must appear that in the course pursued by the board there is legal error, as distinguished from an erroneous finding of fact. The contest having been referred to a committee of the board, a majority of the committee reported in favor of the defendant Crompton, and a minority in favor of the plaintiff. By votes of four to four, the board refused to adopt each of the reports. This course resulted in a refusal to seat the plaintiff, and the question in this proceeding is whether, on the facts before the board, any conclusion but one favorable to the plaintiff could be reached. If there could not, he is entitled to such an order as will establish his right to a seat in the board.
At the hearing in the superior court the presiding justice found that there were 84 undisputed ballots for each candidate, one for the plaintiff marked with a cross made with ink, and three so marked for both candidates that the intention of the voter could not be ascertained. The ballots were made a part of the case, and it was transferred without ruling. The contention now made is on one of the three ballots which the superior court found to be so marked that the intent could not be ascertained. An inspection of the ballot shows a faint and almost wholly erased cross opposite the plaintiff's name and a heavy cross opposite Crompton's. There is enough in the appearance of this ballot to warrant a finding that it was intended for Crompton. If the finding of the presiding justice that the ballot did not convince his mind that the wish of the voter was expressed was warranted, a different conclusion would not have been erroneous as matter of law. The question to be decided was one of fact. And the important thing about it here is, not how the superior court would or did decide it, but how it was decided by the board of aldermen. The question being one of fact within the jurisdiction of the board of aldermen, the superior court has no power to review their action on it. Shcehan v. Mayor and Aldermen, 74 N. H. 445, 68 Atl. 872. How the aldermen viewed this question is not disclosed by the records of the board nor by the case. If four of them thought this ballot should be counted for Crompton, there was no error correctible by this court in their conclusion that the plaintiff was not elected. If a majority of the board thought the ballot should not be counted, it would follow that the plaintiff was elected, and a refusal to seat him would be an error of law and subject to review.
The plaintiffs contentions that Crompton is now estopped to claim the ballot in question because of what occurred before the board (Dinsmore v. Mayor and Aldermen, 76 N. H. 187, 81 Atl. 533) cannot prevail. So far as appears, there was no agreement or concession of any kind when the hearings were had.
As the case now stands, the failure to seat the plaintiff may have resulted either from a correctible error of law,...
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In re Appeal McDonough
...a de novo review of the challenged ballots, voter intent presents a question of fact, not a question of law. See Broderick v. Hunt, 77 N.H. 139, 141, 89 A. 302 (1913). In the context of a writ of certiorari, we will not conduct a de novo review of the evidence presented before the administr......
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In re McDonough
...a de novo review of the challenged ballots, voter intent presents a question of fact, not a question of law. See Broderick v. Hunt, 77 N.H. 139, 141, 89 A. 302 (1913). In the context of a writ of certiorari, we will not conduct a de novo review of the evidence presented before the administr......
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Petition Of Dondero.
...and to be distinguished are cases in which this court has corrected errors of law in municipal election contests. (Broderick v. Hunt, 77 N.H. 139, 89 A. 302), primary contests (Nelson v. Morse, 91 N.H. 177, 16 A.2d 61; O'Brien v. Fuller, 93 N.H. 221, 39 A.2d 220), or has construed other par......
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Barber v. Sch. Bd. of Rochester
...the board violated some rule of law, its conclusion is final. It is for the complaining party to show such violation. Broderick v. Hunt, 77 N. H. 139, 142, 89 A. 302; Dinsmore v. Mayor and Aldermen, 76 N. H. 187, 191, 81 A. 533. The case is here upon the pleadings in which the grounds for t......