179 A. 412 | N.H. | 1935
The motion to dismiss the amended petition was properly denied. In substance and effect the petition was a new and distinct proceeding. It sought relief against new parties and of a different character from that for which the original petition was brought. But the informality of procedure is not prejudicial to any of the defendants if the prosecution of the amended petition is carried on in disassociation from the original one. Willoughby v. Holderness,
The exception to the decree is sustained. The decree was based on fundamental error in adopting the master's report and giving his findings the force of res adjudicata as to everyone.
The original petition should have been dismissed upon the event of the town meeting antecedent to any order upon the petition. No order effective to give the plaintiff the right to vote at the meeting could be granted, and the petition did not lie for any other relief. Bell v. Pike,
The master's findings that the supervisors were prejudiced and that the plaintiff was entitled to have his name on the checklist therefore have no binding force. In popular phrase the supervisors were not on trial. The plaintiff's right to be enrolled so that he *333 might vote was the ultimate issue; when it became unenforceable, all subsidiary and collateral issues were futile. If the right ever existed, it was lost and destroyed by force of extraneous circumstance. Being lost, it could not be asserted and vindicated, and hence jurisdiction to determine it was at an end in a proceeding to enforce it.
Incidentally, it is to be observed that the issues raised by the original petition were not properly limited. The plaintiff's name being intentionally omitted from the checklist, he had no right to vote. P. L., c. 24, s. 16. The administrative decision of the supervisors that he was not qualified was final. No legislation authorizes an appeal to the courts. By mandamus the supervisors might be directed to perform duties neglected or violated. But the exercise of their judgment or discretion in a particular manner may not be ordered when an opposite conclusion may be reasonably reached. "The superintending power of the court is limited to the correction of errors of law apparent upon the record, or to requiring the body to act if they refuse to entertain a contest." Sheehan v. Mayorc.
There is a further reason for the incompetency of the master's findings to show that the plaintiff might be voted for. If by unprotested submission to the master's hearing the supervisors might be held to have bound themselves to a legal effect of the hearing, no others were thus bound. The rule is to be observed that "When a new defendant is brought in by amendment, the situation as to his rights and liabilities is what it would be if an original action against him were brought at that time. As to him, this is the beginning of the suit." Lewis v. Hines,
The fact that the plaintiff seeks to compel the performance of official duties owed by the defendants does not alter the situation. The proceeding against the supervisors related only to the plaintiff's right of suffrage. His right to hold public office was not their concern. The purpose of the legislation relating to checklists for elections *334
is only "not to subject or injuriously limit or restrain the right of suffrage, but to secure it in its fullest extent to those entitled to it, by preventing fraudulent voting." Davis v. School District,
If the principle of res adjudicata, in its full application, may extend to the decisions of boards of supervisors as administrative judgments (see State v. Corron,
Pending final judgment thereon, justice may require interlocutory orders. The interest of the town that its business be duly conducted during the litigation is one consideration of practical importance.
Case discharged.
All concurred. *335
