Dinsmore v. Mayor and Aldermen of City of Manchester

• Decision Date: 03 October 1911
• Citation: 81 A. 533,76 N.H. 187
• Parties: DINSMORE v. MAYOR AND ALDERMEN OF CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

81 A. 533

76 N.H. 187

DINSMORE

v. MAYOR AND ALDERMEN OF CITY OF MANCHESTER.

Supreme Court of New Hampshire. Hillsborough.

Oct. 3, 1911.

Transferred from Superior Court, Hillsborough County; Wallace, Judge.

Certiorari by Arthur W. Dlnsmore against the Mayor and Aldermen of City of Manchester. Transferred on defendant's exceptions. Exceptions overruled.

At the election in November, 1910, the moderator of ward 8, Manchester, declared one Wenzel elected to the office of alderman. Thereupon the plaintiff petitioned the board of mayor and aldermen, alleging that he received more votes for alderman than Wenzel, and that he should be given the office. Several hearings were had upon this petition; and, as it appeared that the result depended on an examination of the ballots cast, a recount was had at the office of the Secretary of State, which showed that Wenzel had 645 votes and the plaintiff 643, exclusive of 5 disputed ballots. At a subsequent meeting of the board it was conceded that three of the disputed ballots should be counted for the plaintiff. The other two ballots were substantially alike. In each there was a cross in the circle above the Democratic column, in which the plaintiff's name was printed as a candidate for alderman, and a cross opposite Wenzel's name, which was printed in the Republican column as a candidate for the same office, but the plaintiff's name was not erased. The board adopted a resolution finding that three of the five disputed ballots should be counted for the plaintiff and the other two for Wenzel, by which recount Wenzel would have one more vote than the plaintiff. The plaintiff was given leave to withdraw, and then filed this petition in the superior court. The defendants and Wenzel excepted to the reception of any parol evidence descriptive of the disputed ballots, and to evidence of the agreement that three of the ballots should be counted for the plaintiff.

Branch & Branch, for plaintiff. John T. Nixon and George A. Wagner, for defendant.

WALKER, J. At a hearing before the board of mayor and aldermen, where this election contest was being considered, it was conceded by all parties concerned, who were present and represented by counsel, that three of the five ballots in dispute were legal ballots for Dinsmore, and that the contest, in fact, related to the effect to be given the other two. Having agreed that three of the disputed ballots should be counted for Dinsmore, and having rested his claim to an election upon the interpretation to be given to the other two, Wenzel cannot now insist that he was not bound by that agreement. He waived his right to claim that the three ballots counted for Dinsmore should be counted for him, in the absence of any evidence of fraud or imposition; and an inspection of the ballots does not indicate that such counting was erroneous.

The question, therefore, relates to the effect to be given to the two ballots in dispute. If they are not counted for either of the contestants and the other three are given to Dinsmore, as upon the facts of the case they must be, Dinsmore received one more vote than Wenzel. The two ballots are substantially alike so far as this contest is concerned. Each has a cross in the circle above the Democratic column and a cross in the Republican column opposite the name of Wenzel, but in neither case is Dinsmore's name erased in the Democratic column. The question of interpretation thus presented is the same that was decided in Murchie v. Clifford, 76 N. H. 99, 103, 79 Atl. 901, where it was held that the ballot could not be counted for either party, since it was impossible under the statute to say for whom the voter intended to vote. The evidence of intention furnished by the ballot was equally consistent with an intention to vote for either candidate; hence the impossibility, as a matter of law, of ascertaining for which one he desired to vote. Upon the authority of that case, it is clear that it was error of law to count the two ballots in dispute for either of the candidates. It was legally impossible to do so.

But the principal contention on the part of the defendant relates to the form of the proceeding the plaintiff chose to bring for the correction of the error in the proceedings of the board. It is insisted that upon a petition for certiorari in a case like this the court is limited in its investigation to the record of the clerk of the board; that it cannot consider extrinsic evidence to show that the law has been disregarded or violated by the inferior court whose proceedings are alleged to be erroneous; and that, as the record kept by the clerk of the board contains no description of the two ballots above considered, the court is without power to ascertain the facts or to require a full and complete record of the doings of the board. This argument is largely based upon a narrow conception of the office of the writ of certiorari, in accordance with which it has sometimes been said that its office is to bring up the record, so that the court may see if the inferior tribunal had jurisdiction (State v. Thompson, 2 N. H. 236), and that, if that fact appeared affirmatively, further investigation of the proceedings was unnecessary and useless. Upon such a view of the law, parol or other evidence that the tribunal, having jurisdiction to determine the matter before it, committed grave errors of law in respect to the rights of the parties, would be immaterial. It would be in effect a holding that the inferior court had jurisdiction to disregard plain provisions of the law, provided it had the requisite power to hear the parties and determine the controversy. If the court above could not correct the errors which might be proved, it would be absurd to attempt to prove them. But that view of the law has not been adopted in this state....