In re Town of Portsmouth

19 N.H. 115 | Superior Court of New Hampshire | 1848

Wilcox, J.

Mr. Scammon, one of the persons to whom, as road commissioners, the petition in this case was referred, was, in the first instance, declared duly elected as a road commissioner, upon an examination made by the court of common pleas, at its September term, 1847, of the votes then returned to that court, as prescribed by law. But the matter was re-examined in this court, at its December term, 1847, when a different result was obtained; and it was determined that Scammon was not duly elected, but that another person was; and a mandamus issued to the court of common pleas, directing them so to declare, which was done at its February term, 1848.

It has long been settled that the acts of an officer de facto, holding an office by color of an election or appointment, are valid as to the public and third persons, and cannot be called in question, except in some proceeding against the officer himself. In elective offices, the votes are to be sorted, counted and returned, and the result declared by some officer or tribunal. That declaration is necessarily final, so long as it stands unreversed; and the court or jury are not to count over the votes and canvass the rights of voters again, every time the rights of that officer are brought in question. And while that declaration remains in force it would seem that it should protect the officer himself.

But there may be a re-examination of the matter, and when a mistake occurs, and a person is wrongfully declared elected, proceedings may be instituted to remove him from the office which he, in fact, usurps or holds without right. Until judgment of ouster or amotion is finally pronounced, he still remains in office, and his acts are valid. Such judgment has been pronounced in this case, and the only question is whether the final and efficient judgment was the judgment pronounced in this court, at its December term, 1847, or the declaration of the court of common pleas, made at its February term, 1848; and it is understood to have been considered and determined, in the case of Mr. Scammon, that this court was not bound merely to direct the court of common pleas to re-examine the matter and declare the result, but that it could, in the plenitude of its jurisdiction, re-examine the matter itself, and declare the result. Such were the proceedings. The returns were here examined, and the final and efficient judgment here pronounced ; and the mamdamus to the court of common pleas was only that the record there should correspond with the fact and truth of the case. Judgment of amotion from office was, in effect, then pronounced against Mr. Scammon, at the December term of this court, 1847, and he cannot, therefore, be regarded after that as an officer de facto, and the report must, therefore, be rejected, and the proceedings referred again to the road commissioners.