Opinion
No. 3985.
Decided October 9, 1950.
Exclusive jurisdiction of contests relating to primary nominations vests in the Ballot-Law Commission by virtue of R. L., c. 34-A, s. 3 III. The Superior Court has no statutory or common law jurisdiction to adjudicate the validity of primary elections or to require that new primaries be held.
PETITION, by the losing candidate in the Democratic primary for Representative in Congress in the first district, seeking to have declared void the primary election in the fifth district voting precinct of the town of Goffstown held on September 12, 1950. Following a recount of votes by the Secretary of State (R. L., c. 33, ss. 53-58), the defendant was declared the winning candidate by one hundred twenty-two votes. The basis of the petition is the admitted fact that the polls in the said fifth district were closed at five-thirty o'clock contrary to the posted primary notices and R. L., c. 34, s. 36, as amended by Laws 1947, c. 186, which required that the polls shall be closed "not earlier than six o'clock in the evening." Prior to this proceeding the plaintiff had sought relief on September 15 from the Ballot-Law Commission which, after hearing on September 25, refused jurisdiction of the primary dispute. The petition also requested the court to direct a new primary to be held in the fifth district or in the alternative a new primary "that will allow an opportunity for all those voters whose names do not appear on the checklist as having voted to cast their ballots at reasonable and lawful voting hours."
The Superior Court (Grimes, J.) being doubtful of its jurisdiction in the premises transferred without ruling the following questions:
"1. Does the Superior Court have jurisdiction in this matter or is jurisdiction vested in the Ballot Law Commission?
"2. If this court has jurisdiction, what is the legal effect of violation of Laws of 1947, chapter 186, upon the primary election?
"3. If this court does have jurisdiction, is petitioner's right to relief dependent upon proof that a different result would have followed if the polls had remained open for the statutory period?
"4. If this court does have jurisdiction, and the petitioner is found entitled to relief, to what relief would he be entitled and to what extent would the relief granted be discretionary"?
John W. King (by brief and orally), for the plaintiff.
Green, Green, Romprey Sullivan (Mr. Meyer Green orally), for the defendant.
The plaintiff seeks by this petition to become the Democratic nominee for representative in Congress from the first district. No jurisdiction is conferred by statute upon the Superior Court to adjudicate the validity of primary elections or to require that new primaries be held. By statute "exclusive" jurisdiction of contests relating to primary nominations is vested in the Ballot-Law Commission. R. L., c. 34-A, s. 3 III. No claim has been advanced that the Superior Court has jurisdiction of this petition by virtue of its common law powers and we are aware of no authority for the proposition. See 29 C. J. S. 364, s. 252. In the circumstances of the present case time does not permit and the statutes do not authorize any tribunal to order a new or special primary in the fifth district voting precinct of Goffstown. We accordingly hold that the Superior Court is without jurisdiction of the petition.
It follows that the remaining questions transferred need not be answered. Consideration of them would be of no assistance to the Trial Court with respect to any matters before it. R. L., c. 369, s. 7; State v. Cote, 95 N.H. 248, 252.
Petition dismissed.