Coutremarsh v. Metcalf

• Decision Date: 02 October 1934
• Citation: 175 A. 173
• Parties: COUTREMARSH v. METCALF et al.
• Court: New Hampshire Supreme Court

175 A. 173

COUTREMARSH

v. METCALF et al.

Supreme Court of New Hampshire.

Oct. 2, 1934.

Bill in equity by Joseph A. Coutremarsh against Harry B. Metcalf and another.

Bill dismissed.

Bill in equity brought as an original proceeding in this court in accordance with the provisions of Laws 1927, c. 137, § 6, wherein the plaintiff prays for a decree disqualifying the defendant Metcalf from becoming a candidate for the office of Representative in Congress for the Second district of New Hampshire at the election to be held upon November 6, 1934.Trial by the court.

James A. Hanley, of Franklin, for plaintiff.

Murchie, Murchie & Blandin, of Concord (Alexander Murchie, of Concord, orally), for defendant Metcalf.

PER CURIAM.

Findings of Fact.

At the primary election held upon September 11, 1934, the plaintiff and the defendant Metcalf (hereinafter called the defendant) were opposing candidates for the Democratic nomination for the office of Representative in Congress for the Second district of New Hampshire.The defendant received a majority of the votes cast at said election.

Prior to August 8, 1934, the defendant filed with the secretary of state his declaration of candidacy for said office, and on or about said date received from the secretary of state an official acknowledgment of such filing, to which was appended a copy of the statutes relating to political expenditures, advertising, and contributions; i. e., Public Laws, c. 34, as amended byLaws 1927, c. 137.Accompanying this document was a form letter over the facsimile signature of the Attorney General, which read in part as follows: "To all candidates at the primary or general election for Councilor, State Senator, County Officer or Representatives: I wish to call to your attention that the law provides that if yon expend more than Twenty-five Dollars ($25.00) in connection with your candidacy, you must file with the secretary of state and with the town or city clerk of your town or city, an itemized sworn statement of all your receipts or expenditures.Such return is to be filed within fifteen days after said primary or general election."

The defendant made a cursory examination of the statutory provisions accompanying the communication from the secretary of state, but had no actual knowledge of any requirement that a statement of expenditures be filed three days before the primary election until the day of the election, when he received notice to that effect from the chairman of the Democratic state committee.Up to that time he understood that the law required only one statement of expenditures to be filed within fifteen days after the election.This misunderstanding was induced, in a large measure, by the above letter of the Attorney General.

Acting in accordance with this understanding of the law, the defendant failed to publish or file with the secretary of state three days before said election a statement of his campaign expenditures incurred up to that time.Upon September 11, the day of the election, however, after receiving notice from the chairman of the state committee, he prepared such a statement and forwarded, by mail, to the secretary of state, two copies of the same, which were received in the office of the secretary of state upon September 12, 1934.This statement showed expenditures amounting to $130.75.Upon September 19he filed a supplementary statement of expenditures in accordance with the statute.

The failure of the defendant to furnish a statement of his campaign expenditures three days before the date of the primary election resulted from his mistake in regard to the requirements of the statute above set forth, and it is found that he had no intent to violate the law.

Conclusions of Law.

Pub. Laws, c. 34, § 20, provides that the state committee of every political party shall file, on the third day preceding the election, with the secretary of state, an itemized statement of contributions and expenditures and publish the same in two daily newspapers.Also that within fifteen days after an election it shall file another itemized statement "covering in like manner all receipts and expenditures subsequent to the first statement."Section 21 provides that: "Every candidate at the primary or general election for governor, United States senator, or representative in congress shall file and publish sworn statements in like manner of all his receipts and expenditures."Section 22 dispenses with the requirement of publication by candidates, provided that copies of the statements "for each candidate opposing the candidate so filing" are delivered to the secretary of state.The foregoing provisions plainly require that candidates for Representative in Congress shall file two statements of campaign expenditures, the first on the third day before the election and the second within fifteen days after the election.

The statutes here involved are penal in their nature.They create and define criminal offenses unknown to the law before their enactment and prescribe penalties for the commission of such offenses.The section under which this proceeding is brought reads as follows:—

"26.Penalties.Any person who violates the foregoing provisions of this subdivision shall be fined not more than five hundred nor less than one hundred dollars and imprisoned not less than thirty nor more than ninety days.Any person who alleges that any of the foregoing provisions of this subdivision relating to the primary have been violated may, not later than the fifth day of October following said primary, bring a proceeding in equity in the supreme court against the person alleged to have violated said provisions.To this proceeding the secretary of state shall be made a partydefendant.The supreme court shall forthwith hear such proceeding and make final decision thereof, and if the court shall find that the defendant has violated any of such provisions, a decree shall be entered disqualifying the defendant from becoming a candidate at the ensuing election, and the vacancy thereby created shall be filled as provided by law.No candidate shall be entitled to the nomination or election until the sworn itemized statements required to be filed by him or in his behalf have been filed and published as hereinbefore required."Laws 1927, c. 137, § 6.

The procedure thus authorized, by which a private citizen may invoke the action of this court with reference to the imposition of a penalty for a criminal offense through the medium of a bill in equity, is highly anomalous and inappropriate.The defendant argues that, since the proceeding is required to be in equity, equitable principles must control the action of the court, and hence that the penalty of disqualification should not be inflicted unless an intentional violation of the law is proved.This argument carries the anomaly of the statute to its logical conclusion and might require...