Osgood v. Jones , 60 N.H. 282 ( 1880 )

Clark, J.

Under the system of annual elections prior to 1878, the returns of votes for county officers were transmitted by the town-clerks of the several towns to the clerk of the supreme court for the county, on or before the first day of the sitting of the court, at the next stated term after the second Tuesday of March in each year; and it was the dxity of the court to examine the returns of votes, record and count the same, and declare the person who had received the highest number of votes for each office to be elected. Gen. St., c. 28, ss. 4, 5. After the adoption of the amended constitution, providing for biennial elections and a consequent change in the tenure of offices, the legislature of 1878 enacted that county officers chosen in November, 1878, should take their places on the first Wednesday of June, 1879; and those thereafter chosen should ta.ke their places on the first day of January next succeeding their election, and shoidd hold their offices for two years, and until others were chosen and qualified in their stead; and for the reason that no term of the supreme court is held in most of the counties between the day of election in November and the first day of January, when the persons elected were required to enter upon the discharge of their ’official duties, it was enacted that the returns of votes should be examined, recorded, counted, and a declaration made at the law term of the supreme court in December, instead of at the trial terms in the several counties. Laws 1878, c. 23, ss. 2, 3,4. Tire legislature of 1879 changed the time of the commencement of the term of office of county officers from the first day of January to the first day of July next succeeding their election (Laws 1879, c. 1, s. 1), and the reason of the change of canvassing the returns to the law term no longer exists.

The statute of 1878 transferred the duties of a canvassing board from the trial terms to the law term. It did not enlarge the jurisdiction of the court, or provide any new method of testing the validity or legality of elections. The powers of- the court, and the mode of procedure to determine the rights of claimants in cases of contested elections, remain unchanged. For this reason we declined. upon motion of the petitioner, to go behind the tabulated returns, recount the ballots cast in all the towns in the county, and enter into a general investigation of the legality of the election, being of the opinion that the statutory duty imposed upon the court as a canvassing board did not require an entry upon such an investigation at that stage of the proceedings, upon the motion of a claimant. Osgood v. Jones, ante 273.

Upon a petition describing itself as “in nature of quo warranto,” tbe plaintiff now asks tbe court to determine tbe prospective right to the office of county treasurer for a term of two years, to commence on the first day of July next. No special statutory duties are imposed upon the court in matters pertaining to the election of county officers beyond the performance of the duties of a canvassing board, and it is not alleged that those duties have not been fully and properly performed. It is not claimed that there is any irregularity in .the returns of votes or in the count of the ballots declared, nor are any facts alleged calling upon the court to interfere, by mandamus or other process or order, for the correction of errors, or for the enforcement of the performance of official duty by subordinate officers. The matters alleged require an investigation of the legality of the election beyond the returns, for the purpose of testing the title to the office, and determining the right of possession. In other jurisdictions it is held that quo warranto is the appropriate form of procedure for such investigation, in the absence of statutory provision. McCrary Elections, ss. 320, 322, 335, 374; High Ex. Rem, ss. 53, 77, 619 ; Dill. Mun. Corp., c. 21. And it is well settled that proceedings in the nature of quo warranto which are based upon an alleged usurpation can only be maintained after an assumption of the office. Rex v. Whitwell, 5 T. R. 85; High Ex. Rqm., ss. 619, 627, 641; Dill. Mun. Corp., a. 21, ss. 716, 724.

This petition, being in the nature of a quo warranto, is premature. It is not authorized by any statutory provision or common-law procedure, and no precedent is found to sustain it. The office of county treasurer is now held by the plaintiff, and the defendant has not usurped it. Whether, in some form of proceeding, upon facts properly presented, the court may determine the prospective right to an office to prevent usurpation, we have not considered.

Petition dismissed.

All concurred.