Smith, In re
| Decision Date | 27 December 1972 |
| Docket Number | No. 220-72,220-72 |
| Citation | 298 A.2d 823,131 Vt. 24 |
| Parties | In re Petition of Frederick P. SMITH. |
| Court | Vermont Supreme Court |
Ewing & Spokes, Burlington, for plaintiff.
McNamara, Fitzpatrick & Sylvester, Burlington, for defendant.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
The order resulting from a recount proceeding involving the senatorial seats in Chittenden-Grand Isle senatorial district is challeged here. The device used is denominated a notice of appeal. Since the statute involved, 17 V.S.A. § 1362, specifically denies a 'right of other recount, review or appeal', this notice was met by a motion to dismiss.
The issue is urgent, and a matter of public concern, aside from the interests of the candidates, with the convocation of the General Assembly only a few days away. Since the validity of the election was contested below under the appropriate statute, this matter stands differently than Petition of LaFreniere, 126 Vt. 204, 227 A.2d 301. Both parties expressed a strong desire to invoke, in some way, the jurisdiction of this Court to resolve claimed difficulties in the disposition made below. To that end, exercising our authority under Rule 2, V.R.A.P., we will treat the matter as before us on a petition for extraordinary relief under Rule 21, V.R.A.P. See Barnet v. New England Power Co., 130 Vt. 268, 271, 291 A.2d 396.
Chapter II, § 19 of the Vermont Constitution reserves to the Senate of this state the 'powers to decide on the election and qualifications of, and to expel any of, its members'. Chapter II, § 5, provides that, 'The Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others.' Thus, it is not for the courts to intrude themselves into the electoral process, except upon matters involving the enforcement of particular constitutional interests, or upon specific authorization expressed by statute. This case relates to such statutory authorization.
The enactment in question, 17 V.S.A. § 1362, provides as follows:
'A candidate for a county office other than justice of the peace may contest the election of another candidate for the same office by filing with the county clerk within ten days after the election a petition setting forth under oath that he is informed and believes that a mistake or fraud has been committed in the counting or return of the votes for the office for which he was a candidate and requesting a recount of such votes. Thereupon a superior judge shall direct a recount of the votes, shall order the town clerks within said county to deliver to the county clerk the votes cast for county offices, and shall make an appropriate order in the premises.
Said superior judge shall appoint three disinterested persons from an adjoining county or counties who together with the county clerk shall count the votes. Said disinterested persons shall be paid from county funds the sum of $10.00 each per day plus their reasonable and necessary expenses.
Upon completion of the recount the superior judge shall certify the result thereof by appropriate order which shall be binding on the candidates without right of other recount, review or appeal.'
This statute does not refer challenged elections to the courts, but rather makes a superior judge a special officer to supervise recounts in the case of county officers. See Ladd, Tax Coll. v. Brandon Fire District...
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