Dorchester v. Youngman , 60 N.H. 385 ( 1880 )

The question here is, whether those against whom the plaintiffs have brought suits had a legal right to vote on Article 7 in the warrant for the annual town-meeting, Nov. 2, 1880. That article was, "to hear the agent's report as to town suits, now pending, and the items of expense incurred therein, and to take such action as to said suits as may be thought best."

Under this article the town "voted to remove the town agent." Norris was then elected, and qualified as agent by taking the oath of office, and, after other business had intervened, a vote was passed empowering "Norris to settle all legal claims and demands against the defendants in suits now pending before William S. Ladd, auditor."

All these votes except the last were carried by the votes of those against whom the suits were pending, and would not have been carried without them. Their names were on the check-list, and they were entitled to vote unless their interest in the subject-matter of the article and the votes under it disqualified them.

The theory of our political system is, that the ultimate sovereignty is in the people, from whom springs all legitimate authority. As a practical fact, the sovereignty is vested in those persons who are permitted by the constitution of the state to exercise the elective franchise.

Each state establishes its own regulations in regard to voting and the qualifications of voters, subject to the constitution of the United States; and when the qualifications of electors are prescribed in the constitution, they can be changed only by an amendment of the constitution.

Under our constitution and laws, every male inhabitant, of the age of twenty-one years and upwards, who has resided in any town six months next preceding the election at which he claims the right to vote, except paupers, persons excused from paying taxes at their own request, and unnaturalized aliens, is entitled to have his name upon the check-list, and to vote on all matters which may come before the meeting for action. The authority of the supervision's in making the list goes no further than an inquiry into these facts. They cannot inquire into the personal or pecuniary interest of the applicant in matters to be acted on. Bill of Rights, art. 12; Const., arts. 13, 27, 28, 30; G. L., c. 29, ss. 1, 2, 8, 9 — c. 30, ss. 1, 5. If the defendant could not vote on the seventh article of the warrant, his name could not, for that reason, be excluded from the check-list; and his name being on the checklist, the moderator had no authority to reject his vote.

When the name of the voter is entered upon the list, his right to vote is not confined to electing and being elected to office. It extends to all matters that may come before the meeting. It confers the same right to vote on questions pertaining to the prudential affairs of the town, as on any other question. G. L., c. 37, s. 4. Towns may make rules and by-laws for managing and ordering their prudential affairs (G. L., c. 37, s. 5); but this statute confers no authority to define the qualifications of voters. The moderator may prescribe rules of proceeding which may be altered by the town (G. L., c. 39, s. 3), but this gives him no authority to reject the vote of any person whose name is upon the list. His authority goes no further than the preservation of order and the proper conduct of the business of the meeting. He may examine the ballot so far as to see that only one vote is offered, but this is all. If the voter votes illegally, the statute affixes the penalty.

If it is admitted that interest is a disqualification, how is it to be determined? Not by the supervisors, whose duties are defined by statute, and among which the question of interest is not included; besides, the voter would have the right to vote on all questions in which he had no pecuniary interest. It could not be done in open town-meeting. The consequences of such a course are too serious to warrant the trial. The question must necessarily be settled before the vote is taken, for otherwise the whole action of the town might be void. To settle it in the meeting would require the suspension of all other business, and an investigation and decision of the question. The denial by the voter of his interest would not be conclusive. Either party would have the right to produce evidence and examine witnesses, and to argue the question. A difficult question might arise as to the amount and kind of interest that should disqualify, and who should be allowed to vote on the question of the right of the voter whose right is denied. Where is the line to be drawn? This case illustrates the difficulty of an inquiry into the question. The seventy-six who voted against the removal of the town agent had as direct an interest in that question as any of the eighty-four who voted for the removal, It might not have been as great in amount, but it was as direct, and the same in kind. If the minority had succeeded and the suits been prosecuted to judgment, there might have been a recovery by the town, and the liabilities of the town reduced thereby, thus reducing their taxes. Kinsley had the additional interest to retain the office of agent, for that afforded him an opportunity to render service and obtain compensation therefor.

If interest disqualifies a person from voting in towns on questions affecting his interests, it must have the same effect in school district and precinct meetings. Many questions might arise in such meetings directly affecting the property and property rights of the voters. When such questions do arise, all other business must be suspended, and the meeting resolve itself into a court to decide the qualifications of the voters. The result would be, that town, district, and precinct meetings, instead of being engaged in the orderly transaction of business, would be occupied with interminable wrangles over the right to vote, engendering discord, strife, and bitterness, and ending in confusion. It would be next to impossible to transact the necessary business. No question relating to prudential affairs could arise in which some if not all the voters would not have such a direct pecuniary interest, in kind if not in amount, as that of this defendant in the question on which he voted.

The authorities, cited to the effect that no person can be a judge in his own cause, do not apply to this class of cases. They go too far. Such a rule, applied to voting in town affairs, would exclude every person from acting. Money could not be raised for schools or highways, or for any purpose for which towns are authorized to raise and expend money. No public works could ever be carried forward. The consequences of such a doctrine show its unsoundness.

The practice and rules of representative legislative bodies are urged as an argument against the defendant's right to vote, but there is no occasion to consider them. The law of this case is clear upon precedent and principle. It is settled by usage since the adoption of the constitution, and by more than a hundred years of town-meeting practice prior to the adoption of the constitution. It is an elementary principle of our local self-government. A reason for submitting a local question to the voters in town-meeting is, that by their interest in it they are peculiarly qualified to decide it. And, in many cases, the more direct and exclusive their interest, the more reason there is supposed to be for delegating to them the power of legislation. The power of taxation for local purposes is to a certain extent committed to them, because, of all men legally capable of exercising it, they have or are presumed to have the greatest personal concern in its exercise as payers of town taxes, and as persons benefited by their expenditure. A tax-payer, voting for or against a proposition to raise money for the public use of his neighbors and himself by a tax assessed upon them and him, votes upon a question of his own interest, and he can vote in the negative on the ground that the tax will take, money out of his pocket, or in the affirmative on the ground that the use to which the tax is to be applied will increase his estate. And voters may be governed by similar motives in their decision of other questions of municipal monetary affairs, including the question of prosecuting such suits as this. The defendant's tax-paying neighbors are, in a certain practical sense, parties in interest in this suit. Those whose names are on the check-list can vote to carry on the suit or to drop it, according to their view of their own advantage or disadvantage. Legislative power on the subject is delegated to the voters of Dorchester because of their interest in it. And when the defendant's neighbors are allowed to vote on the question on account of their interest, he is not forbidden to vote on account of his interest. The contrary doctrine would allow them to vote for a tax on the ground that it would make them richer, and forbid his voting against it on the ground that it would make him poorer. The defendant's motion should be granted.

Case discharged.

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