Opinion
No. 3502.
Decided September 20, 1944.
Mandamus is a proper remedy to enforce the performance of duties by the Secretary of State with regard to nominations by a political party to fill a vacancy on the party ticket, but in order to establish his right to such a writ the plaintiff must show by satisfactory evidence that he is entitled to have his name upon the official ballot. Questions of law arising in connection with nominations by a party committee to fill vacancies are properly directed to the courts rather than to the Ballot Law Commission where no material fact is in dispute and expedition in preparing ballots is imperative. Voting is a personal act which cannot be performed by an agent. The county committee is the "proper committee" within the meaning of R. L., c. 33, s. 67, to fill a vacancy on a political party ticket, occasioned by the death of candidate for sheriff to be voted for at the general election, R. L. c. 33, s. 52. In such case, the organization of the committee and the selection of the candidate must be in accordance with law, and the party itself is without authority to determine the validity of the organization or the actions of the committee.
PETITION, for a writ of mandamus. Hearing before Young, C. J., who made the following findings, rulings, and decree:
"This is an action begun by a petition whereby the plaintiff seeks to compel the defendant to substitute the plaintiff's name in place of that of John Laplante as the Democratic candidate for sheriff of Hillsborough County on the official ballots to be used in that county in the general election in November next.
"Mr. Fuller appeared by counsel who filed a written answer and was also present in person and testified.
"Mr. Alphonse Roy, who although not named in the petition as a party, was included in the order of notice and was served with a copy in hand by a deputy sheriff, appeared by counsel who filed a written answer and took an active part in the hearing; he also appeared in person but did not testify.
"At the beginning of the hearing counsel for Mr. Fuller made an oral motion to dismiss upon the grounds that as Secretary of State, being charged by law with the duty of preparing the ballots, the defendant's decision as to what candidate in any particular instance was duly nominated and in case of conflict whose name should go on the ballot was in the nature of a finding of fact and judgment which could not be reviewed by the Court. The motion was denied subject to exception.
"The jurisdiction of the Court was questioned, it being suggested that the petition is in the nature of a mandamus proceeding, whereas it should have been certiorari or quo warranto. Following the practice which has obtained in this State for many years and believing that the object desired and the determination of what should be done in the premises are of greater importance than the name and form of the process employed, the Court proceeded upon that theory. Furthermore, the Attorney-General appeared by the Assistant Attorney-General as counsel for the defendant and so might object to lending the use of his name or title to the plaintiff and if the plaintiff could use either without the Attorney-General's consent or over his objection it becomes merely conventional surplusage.
"Mr. Roy in his answer raised the point that the Ballot Law Commission has exclusive jurisdiction of the issues involved in the case. [R. L., c. 33, s. 97.] Even if such is the fact, the Court can review the action of the Ballot Law Commission, on matters of law anyway, and as the questions here involved are mostly questions of law and as it is exceedingly important that the ballots be printed at once in order to allow distribution to voters in the armed forces, the Court assumed jurisdiction, to which the defendant, Fuller, and Mr. Roy excepted.
"All concerned agreed that Mr. Laplante was nominated as the Hillsborough County Democratic candidate for sheriff at the primary election; that his name was put on the official ballot as such, and printing began at once; that on the 16th of August he died; that at what purported to be a meeting of the executive committee of the Democratic State Committee held in Concord August 18, Mr. Alphonse Roy was chosen by that committee to fill the vacancy; that the Secretary of State was immediately notified of the action of this committee; that the secretary substituted the name of Mr. Roy for that of Mr. Laplante and began anew the printing of the ballots; that at what purported to be a meeting of the Democratic county committee of said county held at the county court house in Manchester in the afternoon of August 23, the plaintiff, Mr. Thomas F. O'Brien, was chosen by that committee to take Mr. Laplante's place on the ballot; that the Secretary of State was notified by registered letter dated August 24 and received by him August 25 of the action of the county committee, but he declined to recognize its authority and refused to put Mr. O'Brien's name on the ballot; and that the plaintiff's petition was filed with the clerk of court August 25, and service made at once.
"The plaintiff claims that the executive committee of the State Committee had no authority.
"As to the organization and doings of the executive committee the Court finds: that at the Democratic State Convention held at Concord August 1, two resolutions were adopted, one fixing the number of the State Committee, the number of the executive committee and the number of the members of each county committee, and the other providing that all vacancies on the ticket should be filled by the executive committee or anyone it might designate; that sixty members were allotted to Hillsborough County as the county committee, four of whom should be members of the State Executive Committee; that the State Executive Committee was made up of four members from Hillsborough County and two from each of the other nine counties, making a total of twenty-two members; that a meeting of that committee was held at the Eagle Hotel in Concord August 18, upon call of the chairman of the State Committee; that it did not appear how the members were notified or how the call was sent out; that of the twenty-two entitled nine appeared in person and seven by proxy, making a total of sixteen present and represented, which constituted a majority; that the four members from Hillsborough County were notified, attended and participated in the proceedings; that by a majority Mr. Roy was designated as the candidate to replace Mr. Laplante; that said committee was created and organized in the usual manner; that its meeting of August 18 was properly called; and that if it had the legal authority to act in such instances its action was regular and in due form.
"Mr. Roy, while claiming that the county committee had no authority, sought to show that it was not legally elected; that its meeting which nominated the plaintiff was not properly called; and that those who were not members took part and voted. The plaintiff objected on the ground that the qualifications of the members could not be attacked or passed upon by the Court in these proceedings. Assuming that whatever this Court does the case will probably be transferred, it seemed advisable that all the facts should be found so far as possible, and the plaintiff's objection was overruled subject to his exception.
"With respect to the county committee, the Court finds: that at said State Convention, after the passage of the resolution fixing the number of members in each county, the party nominees and state delegates of each county met and elected a county committee as provided by law; that the Hillsborough county delegation met and organized in the usual manner by the election of a chairman and a secretary; that it then proceeded to elect a chairman and secretary of the county committee and four members of the executive committee of the State Committee; that a list of the members of the county committee for the previous two years had been furnished; that after some discussion it was voted that the county committee should consist of the same members as were elected to the county committee in 1942, subject to the filling of vacancies and such changes as might be made by towns and wards to be reported to the State Executive Committee; that this of course left the ultimate personnel of the committee indefinite, but the system evidently suited the delegation which had the sole power to create the committee; that some changes were made in the list; that the list was then turned over to Mr. Lucier to be delivered to the secretary, Mr. Velishka; that while in Mr. Lucier's hands and probably with the knowledge of Mr. Velishka, by consultation with party workers and local chairmen of local committees, other changes, including substitutions and additions, were made, which were not substantially in conflict with the vote of the county convention; that the revised list was furnished the county chairman who issued a call for the meeting of August 23 by postal card, stating the place, time and purpose of the meeting; that previous to the meeting the chairman appointed a credential committee, who passed on the qualifications of all members who sought to attend; that later the credential committee reported to the meeting and its report was accepted; that 42 attended, some on proxies; that Mr. Roy obtained proxies for two who attended; that after the meeting had been duly opened and the business of selecting a candidate to take Mr. Laplante's place was before it four candidates were nominated; viz., Mr. O'Brien, Mr. Roy, Mr. Hurley and Mr. Wingate; that another name was suggested, but the nomination was not seconded and so it did not go before the meeting; that the list of members which had been prepared by the credential committee was used by the secretary and as he called the names each member named orally the candidate for whom he or she desired to vote; that as the roll was called 21 voted for O'Brien, 12 for Roy, 5 for Wingate and 4 for Hurley, but before the result was announced those who had voted for Wingate and Hurley and one who had voted for Roy asked to be recorded as voting for O'Brien, giving him a total of 31 votes, which was a majority of those present, and he was declared elected as the Democratic candidate for sheriff of Hillsborough County; that the Secretary of State was duly and properly notified, with the result already stated; that although the county committee may not have been elected and its meeting organized and conducted with the degree of care and strict adherence to legal principles that a business concern would have used, yet these various committees are somewhat a law unto themselves, and in the opinion of the Court this one sufficiently complied with the law, both as to its organization and action, so that if it had the lawful authority to act in such a situation its action in selecting a candidate for sheriff was legal; and that furthermore Mr. Roy in a measure acquiesced in the procedure by getting proxies and having his name presented, and probably if he had received a majority of the votes would have been content.
"And so as the Court views the situation the case resolves itself into the sole question of law which committee had the right to act.
"Subject to the exception of the plaintiff the Secretary of State was allowed to express his opinion and testified that in his judgment the action of the State Executive Committee was in accordance with the law and the practice of the Democratic party, but was unable to cite any specific instances sufficient in the mind of the Court to establish a custom or even a precedent. He further testified that the Republican party had a different system and when vacancies occurred in its ticket they were filled by the town, ward, county or state committee, depending on whether the vacancy was in a town, ward, county or state office.
"Although the statute relating to vacancies caused by the death of a candidate was originally passed in 1891, by the adoption of the Public Laws of 1926, it was made a part of the law governing primary elections and [as amended by Laws 1921, c. 95, s. 3] provided that a new candidate may be substituted under the authority `of the proper committee as the law provides.' [R. L., c. 33, s. 67.] An earlier section of the Primary Election law declared how vacancies, which presumably meant all vacancies whether caused by death or otherwise, should be filled, and provided that they `shall be filled by the party committee of the state, county, town or ward as the case may require.' [Laws 1909, c. 153, s. 13; P. L., c. 25, s. 47.] This continued to be the law as to vacancies until 1937, when an amendment was passed defining vacancies as intended by the section last referred to, and limited them to those caused by withdrawal or refusal to accept the nomination. [R. L., c. 33, s. 52.] The section relating to vacancies caused by death was not amended, but remains the same. If it is to be considered that the 1937 amendment does away with the death section there is now no statutory law providing for filling a vacancy when a candidate dies. The Court does not believe that such was the intention of the legislature, but is of the opinion and so finds and rules; that the vacancy caused by the death of Mr. Laplante should be filled by the proper committee of the Democratic party; that the office of sheriff is a county office; that the proper committee to fill the vacancy is the Democratic county committee of Hillsborough County; that the executive committee of the Democratic State Committee had no jurisdiction or authority to act in the matter, and that its action in attempting to nominate Mr. Roy was of no effect; that the nomination of the plaintiff, Mr. Thomas F. O'Brien, was made by the proper committee acting in conformity with the law; and that Mr. O'Brien's name should go on the ballots in place of Mr. Laplante's or Mr. Roy's.
"It is therefore ordered and decreed that the defendant, the Secretary of State, refrain from printing Mr. Roy's name on the official ballots and that instead he print or have printed on all ballots to be used in the County of Hillsborough in the November election the name of Thomas F. O'Brien as the Democratic candidate for sheriff of said county."
Bills of exception, filed by all parties, were allowed.
William H. Craig, Maurice F. Devine, and Paul E. Nourie (Mr. Nourie orally), for the plaintiff.
Stephen M. Wheeler, Attorney-General, and Ernest R. D'Amours, Assistant Attorney-General (Mr. D'Amours orally), for the Secretary of State.
Robert W. Upton, Edward J. Lampron, and Thomas J. Leonard (Mr. Upton orally), for Alphonse Roy.
The defendant Roy claims that a nomination is essentially a public franchise, the right or title to which can be tested only by proceedings in the nature of quo warranto and that the present proceedings cannot be converted into that remedy since the Attorney-General is a necessary party thereto. However, the Attorney-General has appeared in behalf of the Secretary of State, and the present proceedings, by whatever name called, have resolved themselves into an inquiry as to which (if either) of the two principal contestants is entitled to prevail. Moreover, mandamus is generally held to be the "proper remedy to enforce duties with respect to nominations." Annotation, L.R.A. 1917E, 480; 18 Am. Jur. 285, s. 157.
It is unnecessary to decide whether the jurisdiction of the Ballot Law Commission (R. L., c. 33, ss. 96, 97) extends to questions arising in connection with nominations made by party committees to fill vacancies, for the decision of the Commission is final only as to questions of fact (see Nelson v. Morse, 91 N.H. 177), and the questions here presented are solely questions of law. Certainly it was not the legislative intent to deny a nominee the right to apply directly to the courts for the enforcement of his legal rights where no material fact is in dispute and where expedition in the preparation of ballots is imperative. See Cloutier v. Board, 92 N.H. 199, 202.
We are in full accord with the conclusion of the trial Court that the county committee is the proper committee to substitute a new candidate to fill the vacancy on the Democratic party ticket occasioned by the death of John Laplante. We are not in accord, however, with the opinion of the Presiding Justice that the county committee was legally organized and that its selection of a candidate for sheriff was lawful.
It is true that where no controlling statute is involved courts are reluctant to assume jurisdiction in factional controversies within a political party but leave such matters for determination by the proper tribunals of the party itself. 20 A.L.R. 1037, and cases there cited. Such was the situation in the case of Attorney-General v. Barry, 74 N.H. 353. But there is here involved an express statutory provision that the party nominees and state delegates in the state convention from each county "shall elect a county committee for their party." R. L., c. 33, s. 60. In view of this statute the party itself is without authority to determine the validity of the committee's organization, and on the undisputed evidence, as recounted by the trial Court, we are constrained to hold that the county committee in the present instance was not properly elected, even if the word "elect" be broadly defined.
Where the Legislature exercises its power to define a county committee within the meaning of the election law, "only such a county committee as the legislature chooses to recognize can have any right to deal with the election machinery." Heath v. Rotherham, 79 N. J. Law, 22, 25; 29 C. J. S. 111. The statutory mandate under consideration is direct and concise: those to whom the duty of selecting a county committee is entrusted "shall elect" that committee. Voting is generally held to be a personal act which cannot be performed by an agent, and it is a fair inference from the language of section 60 that "personal execution" of the duty thereby imposed was intended. 1 Mechem, Agency, s. 125.
Of the forty-three persons who participated in the meeting of August 23, eighteen had not been members of the county committee in 1942. Several of that number were selected by individuals, and there is no evidence that any one of them was chosen by the formal action of any town or ward. The fact that a majority of those who had been members of the 1942 committee voted for O'Brien is immaterial: the committee of 1944, not being legally constituted, could not lawfully exercise the power of nomination. 29 C. J. S. 139. In the case of Coray's Nomination, 25 Pa. Co. 525, 526, it was held that where persons having no right of membership in a county committee "took part in deliberating and balloting, the committee was illegally constituted and had no power to nominate anyone or to certify a nomination."
This result makes it unnecessary to decide whether or not the meeting of August 23, some of the notices of which were not mailed until August 22, was legally called.
In order to establish his right to the writ of mandamus the plaintiff must show by satisfactory evidence that he is entitled to have his name upon the official ballot. People v. Rose, 211 Ill. 252, 254; Flynn v. Capelli, 54 R. I. 462, 465; 38 C. J. 666, s. 211. This he has failed to do.
With respect to the defendant Roy's alleged right to the nomination, the Attorney-General and Assistant Attorney-General, appearing for the Secretary of State, earnestly contend "that the official executive interpretation of section 67 by the defendant Fuller should be upheld because it is in accord with history, practice, law, and well established rules of statutory interpretation and construction."
As already stated, we subscribe to the interpretation which the trial Court has given the statute, and the fact that, in the past, state committees of the Democratic party have occasionally filled vacancies in county tickets falls far short of establishing an authoritative practical construction of the statute.
It is our conclusion that neither O'Brien nor Roy is entitled to have his name printed on the official ballot.
Petition dismissed.
BRANCH and BURQUE, JJ., did not sit: the others concurred.