Petition Of Dondero.

Decision Date25 January 1947
Citation51 A.2d 39
PartiesPetition of DONDERO.
CourtNew Hampshire Supreme Court

OPINION TEXT STARTS HERE

Petition by Mary C. Dondero for appeal from a decision of the Ballot Law Commission affirming a recount by the Secretary on State declaring that Rae S. Laraba was elected in the biennial election as Senator in the 24th Senatorial District over petitioner. The petition was treated as being properly amended as a petition for writ of certiorari.

Petition dismissed; certiorari denied

Petition (R.L. c. 414), for appeal from a decision of the Ballot Law Commission affirming a recount by the Secretary of State (R.L. c. 34, §§ 108-110) declaring that Rae S. Laraba (hereinafter called the intervenor) was elected in the biennial election as Senator in the 24th Senatorial District by a plurality of one vote over his opponent, the petitioner. Pursuant to N. H. Const., Part Second, art. 33, the Governor and Council issued ‘* * * summons to such persons as appear to be chosen senators, by a plurality of votes, to attend and take their seats * * *.’ Such a summons was issued to the intetvenor who appeared and was sworn in as a senator January 1, 1947. The petition alleges error of law made by the Ballot Law Commission in counting certain disputed ballots.

Devine & Millimet, and Joseph A. Millimet, all of Manchester, for petitioner.

Waldron & Boynton and J. Waldron, of Portsmouth, for intervenor.

KENISON, Justice.

The contention that section 1 of chapter 414 of the Revised Laws grants an appeal in all instances where a different procedure is not expressly provided ignores the provisions of section 2 that the uniform procedure adopted by that chapter applies only when ‘Authorized by law.’ The provisions of this chapter do not provide an appeal from the determination of every administrative agency in the state. Unless some reference is made to chapter 414 in any given statute, an appeal under the provisions of chapter 414 is not ‘Authorized by law.’ Consequently the decisions of the Ballot Law Commission are not reviewable by this court under R.L. c. 414.

However, treating the petition as being properly amended as a petition for a writ of certiorari, (Nelson v. Morse, 91 N.H. 177, 16 A.2d 61) we proceed to the question of the jurisdiction of this court in the premises. At the outset we are confronted with the constitutional provision that ‘The senate shall be the final judges of the elections, returns, and qualifications, of their own members * * *.’ N. H. Const., Part Second, art. 35. This provision has previously been construed to mean exactly what it says and the court has heretofore declined to rule upon election contests after a member has been seated by the Senate. Opinion of the Justices, 56 N.H. 570; Opinion of the Justices, 56 N.H. 574. A similar provision governs the House of Representatives, art. 22, and has been similarly construed. Bingham v. Jewett, 66 N.H. 382, 29 A. 694; Eastman v. Jewett, 66 N.H. 624, 29 A. 695. Both of these constitutional provisions were copied from the Massachusetts constitution, (Orr v. Quimby, 54 N.H. 590, 622) and have been construed by the Massachusetts court as precluding it from reviewing the determination of the Legislature as to the election of its members. Greenwood v. Board of Registrars, 282 Mass. 74, 184 N.E. 390.

It is well settled that a provision in a state constitution providing that each house of the State Legislature shall be the judge of the election and qualification of its members vests the Legislature with sole and exclusive power in the premises and deprives the courts of jurisdiction of such matters. See cases collected in State ex rel. Sathre v. Quickstad, 66 N.D. 689, 268 N.W. 683, 107 A.L.R. 205, 209; Mass. Election Cases, 1923-1942 (Howard ed) passim.

The judicial construction of article 1, section 5, of the constitution of the United States constitutes each House of Congress the sole and exclusive judge of the election and qualifications of its own members and deprives the courts of jurisdiction to determine such matters. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867; Opinion of the Court, 60 N.H. 585, 586; In re Opinion of the Justices, 80 N.H. 595, 606, 113 A. 293.

The general rule as to the exclusive jurisdiction of the Legislature may be subject to some limitations. ‘Here the question under consideration concerns the exercise by the Senate of an indubitable power; and if judicial interference can be successfully invoked, it can only be upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due...

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10 cases
  • Appeal of Lorden
    • United States
    • New Hampshire Supreme Court
    • August 2, 1991
    ...541] in any given statute, an appeal under the provisions of [chapter 541] is not 'authorized by law.' " Petition of Dondero, 94 N.H. 236, 236-37, 51 A.2d 39, 39-40 (1947) (interpreting R.L. ch. 414, precursor to RSA 541:6). RSA chapter 78-B does not reference RSA chapter 541 in any way, an......
  • Brown v. Lamprey
    • United States
    • New Hampshire Supreme Court
    • January 27, 1965
    ...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 retu......
  • Winn v. Jordan
    • United States
    • New Hampshire Supreme Court
    • June 20, 1957
    ...that no appeal lies from this decision of the Personnel Commission because none is 'authorized by law.' RSA 541:2. Petition of Dondero, 94 N.H. 236, 51 A.2d 39. Cf. RSA 98:15, supra. Although the plaintiffs have mistaken their remedy, our practice permits consideration of their petition as ......
  • Opinion of the Justices
    • United States
    • New Hampshire Supreme Court
    • May 5, 1959
    ...House to 'settle the rules of proceedings in their own house under Part II, Art. 22d of the Constitution of New Hampshire. Petition of Dondero, 94 N.H. 236, 51 A.2d 39. See Journal of the House (1957) p. FRANK R. KENISON, LAURENCE I. DUNCAN, AMOS N. BLANDIN, Jr., EDWARD J. LAMPRON, STEPHEN ......
  • Request a trial to view additional results

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