Opinion
No. 3996.
Decided October 30, 1950.
Where the plaintiff had no clear right to have his name printed upon the official ballots, as Democratic nominee for Representative to the General Court, for use at a biennial election and absentee and specimen ballots already printed and distributed for the particular city ward could not be reprinted and distributed before election, the Supreme Court declined to grant mandamus.
PETITION for a writ Of mandamus, to compel the Secretary of State to give notice to the named plaintiff in accordance with the provisions of R. L., c. 33, s. 49; or in the alternative to place his name on the ballots for Ward 1 in Manchester as the Democratic candidate for Representative to the General Court.
At the primary, Maclay's name was written on the ballot by the plaintiff Bingham, and other voters. The name "Davis S. Maclay" was returned by the ward clerk, and published pursuant to R. L., c. 33, s. 48, as that of the Democratic candidate for the office in question. The evidence tends to establish that acting under s. 49, c. 33, R. L., on September 19, 1950 the defendant mailed to "Davis S. Maclay," as a person who did not file a declaration of candidacy or primary petition, a post card notice of his nomination for the office. The card was addressed to "Ward 1, Manchester, N.H.," and had attached a return post card by which an assent to candidacy might be returned to the defendant. Similar cards were mailed to more than fifty persons in Manchester and seven or eight return cards were received therefrom by the defendant. Under post office regulations, such a mailing would not be returned to the sender if not delivered, but would ultimately be destroyed.
It is conceded that the plaintiff did not receive the mail. On or shortly after September 18, 1950, he learned of the publication of the name "Davis S. Maclay" as that of a candidate for the office. No assent to candidacy or acceptance of the nomination was filed by him with the defendant, nor did he file an affidavit as required by R. L., c. 33, s. 7. The defendant considered the nomination refused, as provided by R. L., c. 33, s. 49, and made no provision for the printing of the name on the ballots. He first learned of the plaintiff's claim of lack of written personal notice on or after October 21, 1950, at which time the ballots for Ward 1 had been printed, and specimen and absentee ballots distributed. This petition was thereafter filed on October 24, 1950.
David S. Maclay, pro se, and for the plaintiff Robert P. Bingham.
Gordon M. Tiffany, Attorney General and Warren E. Waters, Assistant Attorney General, for the defendant.
The evidence discloses that specimen ballots for use in Ward 1 of Manchester and absentee ballots for said Ward, none of which bear the name of the plaintiff Maclay as a candidate, have been printed and distributed. R. L., c. 34, ss. 17, 62. It is not plain whether the absence of the plaintiff's name results from inadequacies of the statute (R. L., c. 33, s. 49), or from his laches, or failure on his part to furnish the statutory affidavit. R. L., c. 33, s. 7. No clear right to the relief which he seeks is apparent. Bell v. Pike, 53 N.H. 473. Moreover, the situation is not subject to satisfactory correction in the short time remaining before election. No sufficient time would remain in which absentee ballots bearing the plaintiff's name could be printed, distributed to voters some of whom are doubtless in distant places, and returned to Ward 1 by election day. R. L., c. 34, s. 66. The use of adhesive stickers is prohibited except when a candidate is substituted for one who has deceased. R. L., c. 33, ss. 67, 68. Under all the circumstances, the occasion does not call for the exercise of the discretionary power to grant the extraordinary remedy of mandamus. See Atwood v. Berry, 87 N.H. 331.
Petition dismissed.