Brown v. Lamprey

• Court: New Hampshire Supreme Court
• Writing for the Court: DUNCAN
• Citation: Brown v. Lamprey, 106 N.H. 121, 206 A.2d 493 (N.H. 1965)
• Decision Date: 27 January 1965
• Parties: J. Willcox BROWN v. Stewart LAMPREY et al.

Page 493

206 A.2d 493

106 N.H. 121

J. Willcox BROWN v. Stewart LAMPREY et al.

Supreme Court of New Hampshire.

Argued Jan. 18, 1965.

Decided Jan. 27, 1965.

J. Willcox Brown, pro se.

John C. Driscoll, Portsmouth (by brief), as amicus curiae, in support of the bill.

Wilfred L. Sanders, Jr., Hampton (by brief), for Robert F. Preston, and as amicus curiae, in support of the bill.

Eugene C. Struckhoff, Concord (by brief), as amicus curiae, in support of the bill.

Alfred Catalfo, Jr., Dover (by brief), as amicus curiae, in support of the bill.

Charles V. Spanos, Claremont, as amicus curiae, in support of the bill, filed no brief.

Upton, Sanders & Upton, Concord (Richard F. Upton, Concord, by brief), for the defendant Lamprey and for James A. Saggiotes.

William Maynard, Atty. Gen., pro se, and Peter W. Smith, Atty. Gen., Concord, N. H., by brief.

William R. Johnson, Lebanon, pro se, filed no brief.

Arthur G. Marx, Alstead, counsel for the Senate, filed no brief.

DUNCAN, Justice.

The motions of the defendants Lamprey and Maynard that the action brought by the plaintiff Brown be dismissed upon the ground that this court is without jurisdiction to review the judgments of the Senate in determining the elections, returns, and qualifications of its members, present the fundamental issue in this case. Other grounds advanced for dismissal, some of which arise out of the assertion that this is in the nature of a proceeding to try title to office, suggest procedural defects (see Stickney v. Town of Salem, 96 N.H. 500, 78 A.2d 921) which might be thought capable of correction should circumstances require. O'Brien v. Fuller, 93 N.H. 221, 39 A.2d 220. The overriding issue of jurisdiction invites first attention.

The qualifications of a State Senator are prescribed by Art. 29, Part II of the Constitution. The qualification at issue with respect to each of the candidates apparently elected from districts 5, 8 and 23 is the requirement that he shall 'have been an inhabitant of this state for seven years immediately preceding his election, and at the time thereof he shall be an inhabitant of the district for which he shall be chosen.' Art. 29, supra. A person not so qualified is not 'capable of being elected a senator.' Id. Under Art. 30, Pt. II, a person is to be considered an 'inhabitant' in the town 'where he dwelleth and hath his home.'

On January 6, 1965 the newly elected Senate assembled and organized, and thereafter undertook to determine whether Senators had been elected for districts 5, 8 and 23 who met the constitutional requirements quoted above. William R. Johnson of Hanover, nominee of both the Republication and Democratic parties and the only candidate for whom votes were cast in district 5, was found by the Senate to be qualified. James M. Lewis, a Democrat, of Newport, who received the largest number of votes at the election in district 8, admittedly was not qualified because not an inhabitant of district 8 for the requisite period. He was found by the Senate not to be eligible and James A. Saggiotes, a Republican, of Newport, the candidate having the next highest number of votes was found to be the 'only qualified candidate with a plurality of the votes.' The Senate adjudged that Saggiotes was 'entitled to represent District No. 8 in the Senate and that he be seated as such Senator.' S.J. for Jan. 6, 1965, pp. 35, 36.

Similarly, Robert F. Preston, a Democrat, of Hampton was found not to be qualified, and Douglas E. Hunter, Sr., a Republican, also of Hampton was found to be 'the only qualified candidate with a plurality of the votes' and was 'adjudged entitled to represent District No. 23 in the Senate' and 'seated as such Senator.' S. J. Jan. 6, 1965, pp. 37-40.

In support of their motion to dismiss, the defendants rely upon Art. 35, Pt. II of the Constitution as follows: 'The senate shall be final judges of the elections, returns, and qualifications, of their own members, as pointed out in this constitution.'

In Petition of Dondero, 94 N.H. 236, 238, 51 A.2d 39, 40, it was held that any review by the court of findings and rulings of the ballot law commission regarding senatorial returns would be 'of doubtful service to the parties and advisory only to the Senate. * * * because our constitution makes the Senate a judicial body for the determination of the election of its members and, at least in the absence of a denial of due process of law, the decision is 'final."

It has been the established law in this state from the beginning that it is not the function of the judicial branch of the government to pass upon the wisdom, desirability and expediency of statutes enacted by the Legislature. Chronicle & Gazette Pub. Co. v. Attorney-General, 94 N.H. 148, 151, 48 A.2d 478, 168 A.L.R. 879. So too, this court has not been invested with the power to pass upon the wisdom of the legislative branch of the government in determining the qualifications of its members. Hence we have no authority to approve or disapprove the action thus taken by the Senate. For this court to interfere would be a usurpation of the authority of the Senate granted to it by the Constitution. Art. 35, supra. In the light of the precedents, we think it plain that this court is without authority to interfere with the Senate's determination that the candidate Johnson was qualified, and that the candidates Lewis and Preston were not. See McGee v. Bragg, 94 N.H. 349, 53 A.2d 428.

The decision of the Senate to seat candidates in the 8th and 23rd districts who received fewer votes than the persons apparently elected but found ineligible is strenuously attacked by the plaintiff and supporters of his bill. In urging that special elections should be ordered in these districts, counsel have argued that they are required by Art. 34, Pt. II of the Constitution, which provides in substance that 'vacancies in the senate arising * * * except from failure to elect, shall be filled by a new election by the people of the district,' and in case of failure to elect shall be filled by election by the two houses of the Legislature 'out of' the two persons having...