Colby v. Fuller

• Decision Date: 30 October 1950
• Citation: 96 N.H. 323,76 A.2d 509
• Parties: COLBY v. FULLER, Secretary of State, et al.
• Court: New Hampshire Supreme Court

Page 509

76 A.2d 509

96 N.H. 323

COLBY v.FULLER, Secretary of State, et al.

Supreme Court of New Hampshire.

Oct. 30, 1950.

Upton, Sanders & Upton, Concord, (John H. Sanders, Concord), for plaintiff.

Normandin & Normandin, Laconia (Fortunat A. Normandin, Laconia), for defendant Gilman.

C. Murray Sawyer, Concord, for Democratic County Committee.

Gordon M. Tiffany, Attorney General, for remaining defendants.

PER CURIAM.

R.L. c. 33, § 67, as amended byLaws 1947, c. 159, § 5, provides: 'Death of Candidate.In case of the death of any candidate to be voted for at any primary or general election, between the date of nomination or filing and the day of election, a new candidate may be substituted under the authority of the party committee of the state, county, town or ward, as the case may require, whose name shall be printed upon the ballots if they have not been printed.In cases of vacancies in candidacies for the offices of state senator and councilor, the appropriate party committee to fill such vacancies hereunder shall be the state committee of the party affected.'Opposing counsel are in general agreement that this statute is limited to filling vacancies by party committees only in the event of death and that therefore it does not control the present situation.

The only other pertinent statutory provision is R.L. c. 33, § 52, reading as follows: 'Vacancies.Vacancies upon any party ticket occurring after the holding of any primary shall be filled by the party committee of the state, county, town or ward, as the case may require, and such committee shall file notice of the appointment made with the secretary of state forty days prior to the day of election for all candidates for any office.The number of days herein given shall include Sundays and shall end on the day before election at six o'clock in the afternoon.The names of persons so appointed shall be placed upon the official election ballot.'Vacancies' for the purpose of this section shall mean only those cases where no candidate has filed and where the person whose name has been written in withdraws or refuses to accept the nomination or where the sole candidate filing for the nomination shall be disqualified for any reason.'

The filling of vacancies permitted by this section is limited to appointments made forty days before the election.It is further restricted by limiting vacancies to two specific situations.The first is where no candidate has filed and the person who has received the nomination by a write-in vote withdraws or refuses to accept the nomination.The second is where the sole candidate is disqualified for any reason.It appears from the statement of facts that the present dispute is not within either of the contingencies provided for in this statute.In the present situation there were two candidates and no question of a sole candidate was involved.Furthermore the vacancy was not created by the failure of any candidate to file and the withdrawal of any candidate named.Accordingly there was no vacancy that existed in the present case which the statute permits to be filled by appointment.

The plaintiff argues that this is the type of vacancy which the Legislature has not regulated and therefore is governed by the common law right of party committees to act in the absence of statutory regulation.It is further contended that the statutes regulating the Australian Ballot, the direct primary, the ...