81 A. 533 | N.H. | 1911
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, ante, 99, 103, where it was held that the ballot could not be counted for either party, since it was impossible under the statute to say for *189 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 defendants 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,
But in this state it is unimportant whether the process be called certiorari, or be given some other Latin or English name. If it is an appropriate and convenient mode of vindicating legal right, it is perhaps not essential that it should have a technical name. The superintending power of the court over inferior tribunals does not depend upon, and is not limited by, technical accuracy of designation of legal forms of action. The parties' rights in this action do not depend upon our definition of certiorari. They are entitled under the established practice in this state to the most convenient procedure for the settlement of their controversy. Boody v. Watson,
"The court shall have general superintendence of all courts of inferior jurisdiction to prevent and correct errors and abuses, and shall have exclusive authority to issue writs of error, certiorari, and prohibition, and may issue writs of habeas corpus and all other writs and processes to other courts, to corporations, and to individuals." P. S., c. 204, s. 2. "One object [of this statute] to be accomplished is the execution of the laws when they have not provided specific modes of preventing and correcting the errors and abuses of courts of inferior jurisdiction." Boody v. Watson, supra, 171. "Cumbersome machinery for bringing up the record of the lower *191
court is unnecessary. Ableman v. Booth, 21 How. 506, 511, 512, 514, 522, 526. The record can be proved, and found with the other facts of the case, at the trial term, on a petition, as well as in an action of debt, or a writ of entry. . . . On a sufficient petition, the question is whether there is an error correctible by the superintending power, and not whether it was committed by a court of record, or whether it is correctible on a writ of error, writ of false judgment, certiorari, mandamus, audita querela, or prohibition." Boody v. Watson, supra, 173. Since the decision in that case, the doctrine that the extraordinary correctional power of the court for the promotion of justice and the due administration of the law is not hampered or defeated by abstruse technicalities of remedy, but that it is exercised upon simple, ample, convenient, and reasonably expeditious methods of procedure, has not been doubted. Gage v. Gage,
As the municipal board in deciding this election controversy exercised judicial powers, and as it committed an error of law affecting the merits of the case and resulting in manifest injustice, its action in that respect is correctible by the exercise of the superintending power of this court over inferior courts (Sheehan v. Mayor and Aldermen, supra), in the absence of any other specified form of remedy. No reason is perceived why the form of petition adopted by the plaintiff is not adequate.
In proceedings of this character relief is granted, not as a matter of right, but as a matter of discretion, which is governed by the justice of the case. Petition of Landaff,
In this case, therefore, so much of the record as declares that Wenzel received 647 votes and Dinsmore 646 is quashed, and the record is amended to show that Wenzel received 645 votes and *192 Dinsmore 646. At the present time no other specific order is necessary, since it is presumed the board will take such further action in the matter as is necessary to finally determine the controversy.
Exceptions overruled.
All concurred.