Pearson v. Norton , 63 N.H. 379 ( 1885 )

If some proceeding were pending in this court for settling the claims of these parties to the office of sheriff, there would be a question whether, as a matter of law, either of them would be entitled to such an order as the plaintiff asks. It might be claimed that an examination, including a recount of the votes, was their legal right. But no such proceeding has been instituted, and the act of June 14, 1881, was not intended to give everybody, or every citizen, or every voter of the county, an absolute right to a recount without due cause shown. There may be a question whether the act authorizes the court to order a recount at the request of any voter or other person interested in the public welfare, or either of the candidates having a private interest in the election, for the purpose of discovering evidence on which a suit could be begun for contesting the election, or for the purpose of satisfying persons specially concerned, or the public in general. However it might be if the legislature should appoint a committee of investigation for the discovery of facts of which, for some legislative purpose, information might be desired, there is no presumption that they intended to impose upon the court an imperative duty of ordering a recount for the mere purpose of quieting the public mind, or enabling a candidate to discover whether it would be expedient for him to contest an election. A recount for such a purpose would not be within the usual range of judicial action, and so wide a departure from the ordinary course of judicial duty cannot be fairly inferred as the legislative intent from anything less than a plain expression of that intent. A design to require the court, without any exercise of judgment upon any question of law or fact, to order a recount merely because it is desired by one of the candidates, is not plainly expressed in the statute, and cannot be reasonably held to be its meaning.

It is not necessary to inquire whether the court have power to make the order in this case. If the power exists, we think the statute does not require its exercise for the cause alleged by the plaintiff. Without examining the question of power, the petition is dismissed, on the ground that the statute does not make it our duty to grant it without other cause than that alleged by the plaintiff, and that if we are authorized to grant it in the exercise of a discretionary power, sufficient cause is not alleged for the exercise of the power in this case.

Petition dismissed.

SMITH, J., did not sit: the others concurred.