Opinion
No. 3160.
Decided May 7, 1940.
Under section 18 of the charter of Dover the power thereby conferred "to decide all cases of contested election of persons chosen to office by any ward . . . [and] to recount the votes upon demand therefor . . . by any person voted for at such election" includes power to recount the votes cast in the separate wards for Street Commissioner.
The conclusion of the Board of Aldermen in such recount of ballots is final as to matters of fact.
The superintending power of the court is limited to the correction of errors of law apparent upon the record.
PETITION, for an injunction to restrain the defendant Grimes from taking office as Street Commissioner of the City of Dover and to restrain the City Clerk of that city from destroying the ballots cast at the municipal election held on December 5, 1939. Facts agreed.
The plaintiff and the defendant Grimes, who for convenience will be referred to hereafter as the defendant, were two of four candidates for the office of Street Commissioner of the City of Dover at the election held on the above date. At the original count of ballots by the officers of the several wards it was found that the plaintiff had 2706 votes and the defendant 2620 votes. The other two candidates trailed. The defendant then petitioned the Board of Aldermen for a recount, which was held on December 22, 1939, and at which both the plaintiff and the defendant appeared personally and by counsel. At this recount the plaintiff was found to have 2724 legal votes in his favor and the defendant 2738, and the latter was declared elected. He took the oath of office on the day following.
The court, Johnston, J. transferred without ruling the question of the authority of the board of aldermen to recount the ballots, the question of the finality of that body's decision in the event that the first question is answered in the affirmative, and the question of the jurisdiction of the Superior Court in the premises.
Stewart Everett Rowe, (by brief and orally), for the plaintiff.
Cooper Hall and William A. Grimes (Mr. Grimes orally), for the defendant.
Section 18 of the charter of the City of Dover, (Laws 1929, c. 329, s. 18), after providing for the preservation of all ballots cast at any city election, and after providing that such ballots, after counting by the ward officers in the several wards, shall be at once sealed up and delivered to the City Clerk, reads as follows: "Such ballots shall be preserved by the city clerk for thirty days with the seals unbroken, except that they shall be subject during that time to the examination of either branch of the city government, in determining the election of its own members, and the board of aldermen shall have power to decide all cases of contested election of persons chosen to office by any ward, and for that purpose shall have power to examine the votes preserved as above, and shall proceed to recount the votes upon demand therefor made within thirty days by any person voted for at such election."
If the provision that "the board of aldermen shall have power to decide all cases of contested election of persons chosen to office by any ward" could, standing alone, be construed to limit the board's power of decision to only ward officers, the final clause of the above statute which provides that the board "shall proceed to recount the votes upon demand therefor made within thirty days by any person voted for at such election", clearly indicates that no such limit upon the power of the Board of Aldermen was intended to be imposed. Construing the above quoted section of the charter as a whole, and considering that nowhere else therein or elsewhere in the statutes is any provision made for recounting the votes cast for officers elected by the voters in the separate wards to serve the city at large, we are of the opinion that the legislature intended the Board of Aldermen of Dover to have power to recount the votes cast for officers with city-wide powers like the Mayor and Street Commissioner as well as power to recount the votes cast for officers to serve in or represent their respective wards.
The Board of Aldermen having statutory authority to recount the ballots cast for Street Commissioner, the conclusion by them reached "is final as to matters of fact and cannot be otherwise inquired into. The superintending power of the court is limited to the correction of errors of law apparent upon the record." Sheehan v. Mayor and Aldermen, 74 N.H. 445, 446, and cases cited. See also Rollins v. Connor, 74 N.H. 456; Hagerty v. Shedd, 75 N.H. 393; Broderick v. Hunt, 77 N.H. 139, 141; Atwood v. Berry, 87 N.H. 331. There being no errors of law apparent upon the record, the order must be
Petition dismissed.
All concurred.