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https://www.courtlistener.com/api/rest/v3/opinions/8502382/ | Tub selectmen of Truro, in their return of a member, stated, that he was duly elected, but, that according to the last year’s state tax., he did not possess the estate required by the constitution to entitle him to a seat. The return was ordered to lie on the table.3
2 J. H. 11. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502349/ | AL
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IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 22-0636
OP 22-0636
JUDSON T. HEWITT, NOV 2 2 2^22
Bow, -n
C. -urt
Petitioner, L.,- ...ontz.ird
v.
ORDER
MONTANA FIRST JUDICIAL DISTRICT
COURT, THE HON. KATHY SEELEY,
District Judge, Presiding,
Respondent.
Representing himself, Petitioner Judson T. Hewitt (Judson) has filed a Petition for
Writ of Supervisory Control over the First Judicial District Court, Lewis and Clark County,
and Judge Kathy Seeley.
Judson contends that he "petition[s] the Montana Supreme Court for a consideration
to be made for the case, so far not performed by Judge Kathy Seeley on any indication
from documents for facts and law which were presented." He explains that he filed a civil
action on February 11, 2019, in District Court and that the defendants in the underlying
case "appear as trustees of a trust." He states that "[t]he cause is for recovery of a house
and related matters." Judson further states that he has filed several pleadings and letters
with the court. His concerns are about the "false statements" filed by opposing counsel
and that "Judge Seeley did not observe the facts and arguments in the time prior to, at the
time of, and subsequent to the [judgment]." Judson includes several attachments, such as
the court's Order and the register of actions.
Exercise of supervisory control is discretionary and on a case-by-case basis.
M. R. App. P. 14(3). "This extraordinary remedy can be invoked when the case involves
purely legal questions and urgent or emergency factors make the normal appeal process
inadequate." State v. Spady, 2015 MT 218, ¶ 11, 380 Mont. 179, 354 P.3d 590 (citations
omitted). "The case must meet one of three additional criteria: (a) [T]he other court is
proceeding under a mistake of law and is causing a gross injustice; (b) [C]onstitutional
issues of state-wide importance are involved; or (c) [T]he other court has granted or denied
a motion for substitution of a judge in a criminal case." Spady, ¶ 11 (quoting M. R. App. P.
14(3)(a)-(c)).
Upon review of the attachments, Judge Seeley has ordered the case closed. Judson
filed his complaint in 2019, but it appears he did not prosecute the civil action in a timely
fashion. After issuing a Status Order, the court closed the matter on January 10, 2022.
Judson sought to re-open the case and vacate the court's order of dismissal, which the court
did. Judson then issued summons to the defendants that were returned on February 9, 2022.
Counsel for the underlying defendants moved for dismissal, pursuant to M. R. Civ. P.
12(b)(6). On June 15, 2022, the District Court issued an Order on Motion to Dismiss,
noting that while Judson may have moved for summary judgment, he did not file the
accompanying brief. MUDCR 2. The court provided the background and history of the
proceeding. The court granted the motion to dismiss and dismissed the case.
Judson is not entitled to a writ of supervisory control over the District Court. Judson
makes no reference to M. R. App. P. 14(3), the Montana Rule of Appellate Procedure that
lists the afor6-mentioned criteria. Judson has not demonstrated urgent or emergency
factors to supersede the normal appeal process. Spady, ¶ 11; M. R. App. P. 14(3). He has
not presented a purely legal question, given that the house was sold in 2014 and other
factual issues. His proceeding in the District Court has completed. This Court has no
proceeding at the District Court over which to take control. Judson had the remedy of
seeking a timely appeal in July 2022 instead of filing other pleadings in a closed case in
the District Court. At this juncture, his remaining remedy is to petition this Court for an
out-of-time appeal for any claims he may have with the court's decision. Accordingly,
IT IS ORDERED that Judson's Petition for Writ of Supervisory Control is DENIED
and DISMISSED.
2
The Clerk of the Supreme Court is directed to provide a copy of this Order to: the
Honorable Kathy Seeley, First Judicial District Court; Angie Sparks, Clerk of District
Court, under Cause No. CDV 2019-167; counsel of record; and Judson Hewitt personally
along with a copy of this Cpurt's Civil Appellate Handbook.
ei
DATED this r2—day of November, 2022.
Chief Justice
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3 | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502947/ | OPINION
Opinion delivered by
Austin, Associate Justice.
The Chinle District Court presented the following certified question to this Court: Whether all claims of wrongful termination of employment of Navajos, employed within the Navajo Nation, must be submitted to the Office of Navajo Labor Relations (ONLR), rather than being brought directly to the district courts of the Navajo Nation? We accepted the certified question pursuant to Navajo Housing Authority v. Betsoi, 5 Nav. R. 5 (1984).
I
Aurelia Charles, an enrolled member of the Navajo Nation, filed a complaint against Furniture Warehouse, with the Chinle District Court on July 17,1992, on the following grounds: 1) wrongful termination of employment; 2) breach of oral contract; 3) breach of implied contract not to terminate except for just cause; 4) violation of the Equal Pay Act, 29 U.S.C. § 206(d) (1992); and 5) violation of the Fair Labor Standards Act, 29 U.S.C. § 207 (1992).
Charles alleged in her complaint that she began working as a collection agent and delivery person for Furniture Warehouse on or about January 15, 1985, in Chinle, Navajo Nation (Arizona). Furniture Warehouse has its principal place of business outside the Navajo Nation at Gallup, New Mexico. Charles alleged she was terminated on October 15, 1991, after being temporarily disabled as a result of an accident in one of Furniture Warehouse’s vehicles. Charles further alleged she and Howard Newsom, president of Furniture Warehouse, entered into an oral agreement on October 12, 1991, that she would only conduct telephone collections until she got well. Charles claims Furniture Warehouse breached this agree*93ment on October 14, 1991, by having a delivery truck delivered to her and then terminating her for not making deliveries.
II
The issue before the Court is one of first impression. Charles is alleging violations of the Navajo Preference in Employment Act (NPEA) and of federal law, namely violations of the Equal Pay Act, 29 U.S.C. § 206(d) (1992), and the Fair Labor Standards Act, 29 U.S.C. § 207 (1992). Thus, the question is whether an aggrieved party alleging violations of the NPEA and statutory violations outside the NPEA should bring an action in a district court or before the Navajo Nation Labor Commission?
Ill
The Navajo Preference in Employment Act sets forth the policy of the Navajo Nation with respect to the preference in employment of Navajos. The purposes of the NPEA are to provide employment opportunities and training, promote economic development; lessen the Navajo Nation’s dependence upon off-reservation sources of employment and income; foster economic self-sufficiency; protect the health, safety, and welfare of Navajo workers; and to foster cooperative efforts with employers to expand employment opportunities. 15 N.T.C. § 2.A.1-7 (1990).
When a violation of the NPEA occurs, a claimant can file a charge with ONLR. 15 N.T.C. § 10. B.l, 3 (1990). Also, ONLR can file a charge on its own initiative. 15N.T.C. § 10. B.l (1990). An investigation is then conducted by ONLR to determine whether there is probable cause to believe a violation of the NPEA has occurred. 15 N.T.C. § 10.C.1 (1990). A hearing will then be held by the Navajo Nation Labor Commission (NNLC). 15 N.T.C. § ll.C. (1990).
The NNLC and ONLR have jurisdiction over violations of the NPEA only. The 1990 amendments to the NPEA state as follows: “compliance with the Act shall be monitored and enforced by ONLR.” 15 N.T.C. § 10.A. (1990). The amendments also state that “[A]ny Navajo may file a charge claiming a violation of his/her rights under the Act.” 15 N.T.C. § 10. B.l (1990). Thus, the NNLC and ONLR have the authority to remedy NPEA violations. However, these administrative agencies do not have the authority to redress violations of statutory law beyond the NPEA.
The question of whether a complainant is required to bring a claim before the NNLC implicates the doctrine of exhaustion of administrative remedies. In Navajo Skill Center v. Benally, 5 Nav. R. 93 (1986), this Court stated that exhaustion of administrative remedies is the concept that administrative agencies should complete their procedures before the courts interfere. Id. at 96. The Court believed that exhaustion of remedies serves the interest of judicial efficiency and economy; is a process which has been committed to the agency by the legislature and it should be allowed to run its course; prevents confusion that may arise if a party *94seeks relief in two forums; and requires parties to address their grievances without going to court. Id.
Exhaustion of administrative remedies is, however, not always required. Id. It is not required if the administrative remedy is inadequate, which includes an unreasonable delay, inability to come to a decision, or lack of authority to grant the relief the party is entitled to. Id. Also, exhaustion of administrative remedies is not required if irreparable injury is imminent or the agency is acting in excess of its authority. Id. Thus, if the complainant alleges one of these exceptions, the complainant is not required to exhaust the agency’s remedies.
When the complainant is not required to exhaust the agency’s remedies, he or she may file with a district court because the district courts have general civil jurisdiction, which includes jurisdiction to hear claims raised under applicable federal laws. 7 N.T.C. §§ 204, 253 (1985).
In the case before us, the NPEA does not give the NNLC exclusive jurisdiction over wrongful termination of employment claims. The amendments to the NPEA state as follows: “Failure to file a charge within the time limitations prescribed herein shall bar proceedings on the related claim before the Commission or in any Court of the Navajo Nation.” 15 N.T.C. § 10.B.6. (b)(ii) (1990). Thus, the district courts can hear NPEA claims if the parties have exhausted their administrative remedies or fall under one of the exceptions to the rule.
The question then becomes, which forum, the district court or the NNLC, should determine whether the complainant’s allegations fall under one of the exceptions to the exhaustion of remedies rule? The NNLC must make that determination. Under the NPEA, the ONLR is given the specific responsibility of monitoring and enforcing the Act, 15 N.T.C. § 10.A. (1990), and to perform that duty, it must work closely with the NNLC — the administrative hearing body under the NPEA. The ONLR is also required to investigate and attempt to conciliate charges when it finds probable cause to believe the NPEA has been violated. 15 N.T.C. §§ 10.C, 10.F. (1990). To permit persons with employment claims to bypass this investigation and conciliation process and proceed directly to the courts would defeat one of the principle goals of the NPEA: “To foster cooperative efforts with employers to assure expanded employment opportunities for the Navajo work force.” 15 N.T.C. § 2.A.7 (1990).
There are considerations of judicial efficiency and economy as well. To allow complainants to immediately bring their claims to the district courts would overload an already overburdened Navajo Nation Court System. See, PC&M Construction Co. v. Navajo Nation, et al., 7 Nav. R. 58, 60-61 (1993). Furthermore, it would open the flood gates and encourage complainants to concoct claims outside the NPEA, in an attempt to circumvent the administrative process. Thus, the NNLC, the agency with expertise on NPEA matters, must initially determine whether the complainant is alleging valid claims of statutory violations outside of the NPEA.
In the case at bar, the NNLC must determine whether Charles is alleging valid *95claims of statutory violations outside of the NPEA. If the NNLC finds these claims to be valid, it must dismiss the entire complaint, including the NPEA claims, because it does not have the jurisdiction to address statutory violations outside the NPEA. Any remedy provided by the NNLC would be inadequate and Charles would not be required to exhaust administrative remedies. Once the complaint is dismissed by the NNLC, Charles may bring the action in a district court.
There needs to be a starting point in this process of determining the different aspects of employer-employee relationships. It is only reasonable to begin with the agency charged with the responsibility to oversee these matters. The Navajo Nation has a comprehensive and detailed plan that has regulations analogous to the National Labor Relations Board and covers the areas of concern to the working Navajo public similar to any federal and state employment statute, if not better. The Navajo Nation Council has charged the ONLR and NNLC with the responsibility to assure compliance with those laws. Thus, the process must be initiated with the ONLR and the NNLC.
If the NNLC determines there are valid claims of statutory violations outside the NPEA, it cannot split the complaint into two actions, and address the NPEA claims while dismissing the claims alleging statutory violations outside the NPEA. It would be a burden for the parties to appear in two separate forums. It would also be expensive for the parties to litigate two separate actions. Finally, it would result in conflicting decisions from the two separate forums and create confusion for the parties.
Because there is a possibility that the statute of limitations on a statutory violation outside the NPEA may run out, any statutory time limits outside of the NPEA will be tolled while the NNLC determines whether it can hear the complainant’s claims.
For the reasons stated above, we hold that the NNLC must first determine whether a valid claim of a statutory violation within NPEA is being made and if not, the NNLC must dismiss the claim. The action must then be brought in the district court.
The Chinle District Court shall transfer this case to the Navajo Nation Labor Commission for proceedings consistent with this opinion. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502948/ | OPINION
Opinion delivered by
YAZZIE, Chief Justice.
PC&M Construction Company appeals a decision by the Navajo Nation Department of Financial Services to collect a judgment, using an offset provision in the Navajo Business and Procurement Act.
I
The Office of Navajo Labor Relations (“ONLR”) brought an action on behalf of three Navajo workers against PC&M Construction Company, Inc. (PC&M), the primary contractor on a Navajo Nation funded construction project. The ONLR alleged that PC&M and two of its subcontractors, Ron Prows Construction (“RPC”) and Native American Construction and Supply (“NACS”), failed to pay the Navajo workers at the “prevailing wage rate” as required by the Navajo Preference in Employment Act (“NPEA”), 15 N.T.C § 607 (1985) (repealed 1990), and the construction contract. The ONLR established the prevailing wage rate for this project using the State of Arizona’s minimum wage scale.
The action was filed with the Navajo Nation Labor Commission (“Commission”). On April 30,1992, the Commission found the three defendants jointly and severally liable for violating Section 607 of the NPEA and Section 11 .C and 11 .M of Navajo Manpower Utilization Requirements. Office of Navajo Labor Relations v. PC&M Constr. Co., Inc., NNLC No. 91-006 (decided April 30, 1992). The Commission ordered the three defendants to jointly and several*97ly pay the three workers their lost wages plus interest at 10% per annum. Id. at 5, 6. PC&M, RPC, and NACS appealed the Commission’s decision to this Court. We dismissed the appeal because the Appellants did not file a brief as required by our civil appellate rules. Ron Prows Constr., et al. v. Office of Navajo Labor Relations, No. A-CV-21-92 (Order filed October 22,1992). Our dismissal of the appeal left intact the judgment entered by the Commission against the three construction company defendants.
On December 21, 1992, the controller of the Navajo Nation Department of Financial Services (“NNDFS”) notified PC&M by letter that it intended to offset the amount of money PC&M owed under the agency judgment. The amount was to be deducted from other monies the Navajo Nation owed to PC&M on another construction project. PC&M appealed this letter to a hearing officer within the NNDFS and a hearing was held. The hearing officer held that the Navajo Business and Procurement Act (“Procurement Act”), 12 N.T.C. § 1507, authorized the NNDFS’ intent to offset. In re PC&M Constr. Co., Inc., No. 01-93-F (decided February 2, 1993).
PC&M appealed the hearing officer’s decision to this Court. Before the appeal could be granted, this Court had to decide whether it had jurisdiction over the appeal. We held that we did. PC&M Constr. Co., Inc. v. Navajo Nation, et al., 7 Nav. R. 58 (1993).
On October 11, 1993, the Nation filed a Motion to Strike because certain exhibits were not made a part of the record.1 We granted the Motion to Strike.2
II
The issue on appeal is whether the offset provision of the Navajo Business and Procurement Act, 12 N.T.C. § 1507, can be used to enforce the Commission’s judgment for the benefit of individual Navajo workers.
III
The ONLR is an administrative agency established by the Navajo Nation Council to implement Navajo Nation labor policies, and monitor and enforce the NPEA. 15 N.T.C. § 10 (1990). The ONLR brings employment disputes between aggrieved workers and their employers to hearings before the Commission. Under the NPEA, the ONLR can abstain from action and permit workers to sue on their own behalf, or it can generate its own charge against an employer. 15 *98N.T.C. § 10. B.I., H.l. (a), H.2. (a), I (1990). The ONLR uses the latter procedure when it wishes to stop an offensive employment practice which impacts a broad class of Navajo workers and specific workers desire to remain anonymous. A third method allows the ONLR to file a complaint with the Commission on behalf of Navajo workers. 15 N.T.C. § 10.1.1., H.2.(a) (1990). If this option is used, it precludes the worker’s right to sue on his or her own behalf. The ONLR frequently uses this method when it detects issues that are of considerable interest, not only to workers, but to protect the interests of the Nation as a whole.
When the ONLR acts in its official capacity, it has available all Navajo Nation law needed to officially carry out its obligations under the NPEA. The NPEA requires contractors to pay workers the prevailing wage rate as established by the ONLR. PC&M’s failure to pay workers at that rate was a violation of the NPEA and a breach of its contract with the Nation. The ONLR had discretion to be directly involved in this suit and represent the aggrieved Navajo workers. We conclude that the ONLR acted properly under authority of the NPEA as a legitimate party to the suit in its representation of the individual Navajo workers.
The Commission’s decision against PC&M and the two subcontractors awarded a money judgment in favor of the Navajo workers represented by the Nation through the ONLR. PC&M argues that because the judgment award was specifically for the workers, and not for the Nation, it has no authority to collect that judgment using the offset provision in the Procurement Act. PC&M argues that the workers can collect their judgment as private parties using the remedies available in 7 N.T.C. §§ 701-712 (1985).
The Navajo Nation was the only party in the action before the Commission. It acted in an ex relatione capacity. The three Navajo workers, on whose behalf the ONLR was acting, were not even parties to the action. The Commission’s judgment was, therefore, for the Nation; the only party to the action. It is immaterial that the workers will ultimately benefit.
The Procurement Act was created to enforce the Navajo Nation Collection System in the best interests of the Navajo Nation. Navajo Nation Council Resolution No. CD-62-86 (December 11, 1986). The relevant part of the Procurement Act provides as follows:
If [a] ... business has an outstanding money judgment against it in favor of the Navajo Nation ... upon due notice the Navajo Nation may offset its money claim against any amount it owes to or has account payable to the ... business ....
12 N.T.C. § 1507(1986).
The Commission entered judgment in favor of the Navajo Nation. The ONLR is entitled to use the offset provision cited above to collect the outstanding money judgment from PC&M, because the ONLR fits under the definition of “Navajo Nation” in the Procurement Act. 12 N.T.C. § 1503 a.(6), (8)-(9) (1986). The Procurement Act does not exclude judgments from offset proceedings entered in favor of the Nation acting in an ex relatione capacity. We hold that *99the offset is proper.
This Court will not create a judicial exception to the offset provision of the Procurement Act for judgments entered in favor of the Nation when it acts in an ex relatione capacity, as PC&M suggests. That is a matter for the Navajo Nation Council to consider. We believe that such an exception would work a substantial injustice to Navajo workers whose claims have been controlled by the ONLR throughout the NPEA enforcement process. It would very likely reduce the leverage the ONLR has to assure compliance with the NPEA.
The decision of the hearing officer is AFFIRMED.
. The Navajo Nation filed a Motion to Strike exhibits A through F, and arguments based on those exhibits, because they were not made a part of the record during the administrative hearing. They included the issue of “[wjhether the appellant [PC&M] was justified in its reliance on the assurance of the Executive Director of the Navajo Division of Community Development that the prevailing wage rate for the Whitecone Pre-school project had been waived.” PC&M’s Brief at 1.
. The Court ordered exhibits A through F, and all arguments based on those exhibits, stricken from the record. PC&M Constr. Co., Inc. v. Navajo Nation Department of Financial Services, 1 Nav. R. 72 (1993). | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502949/ | OPINION
Opinion delivered by
AUSTEN, Acting Chief Justice.
Two men claim to be the father of the same child in this paternity case. The dispute has been before the Oglala Sioux Tribal Court and Tribal Council in South Dakota, and has generated threats, animosity and confrontations among the parties. Gloria G. Means continues to insist that Gary Davis is not the father of her child in spite of the family court’s ruling to the contrary. We conclude that 1) the prior ruling on paternity is res judicata, and 2) the child’s best interests require that blood testing or chromosome testing or both be done to verify which of the two men is the father of the child.
I
Gary Davis (“Davis”), the Appellant, and Gloria G. Means (“Means”), the Appellee, were married on June 6, 1976 in Chinle, Navajo Nation (Arizona). Davis is non-Indian and Means is a member of the Navajo Tribe. The parties separated in June 1984, and on November 28, 1984, Davis filed for divorce in the Window Rock District Court. The record shows that during the latter part of May or early June 1984, Means conceived a child. The child was bom on February 19, 1985, three months after the divorce decree was granted.
During the divorce proceedings, the paternity of the child became an issue. Means testified that Davis was not the father of her child because she had maintained a sexual relationship with her current husband, Russell Means (a Lalcota), during the time of conception. Davis testified that he also had engaged in active *101sexual relations with Means during the same time. The testimonies of the parties conflicted and offered no assistance to the court.
Davis testified that he underwent a vasectomy in the fall of 1982, which was reversed on February 7, 1984. Davis had a semen analysis done on June 21, 1984, at the University of New Mexico School of Medicine. The physician performing the semen analysis did not appear in court, but stated in a letter that Davis’ semen count was artificially low. The doctor opined that the low semen count could be attributed to recent sexual activity, or “the motility and the percent of normally shaped sperm could also be artificially low.” Letter dated July 19, 1985. The physician concluded that the likelihood of Davis fathering a child was not impossible. The semen analysis was not conclusive as to Davis’ ability to father a child. The physician’s letter was unhelpful to the court in determining the child’s paternity.
On November 11,1984, Davis requested blood grouping tests to determine the child’s paternity. Davis later withdrew the request, invoking the legal presumption that a child conceived during a marriage is the issue of that marriage. The trial court ruled on August 15, 1985 that Davis was not the father of the child, because he had “presented no expert evidence of his ability to have children during the critical [conception] time period.”
Davis appealed that ruling on September 16, 1985. We held that the district court erred in placing the burden of persuasion on Davis and that Means should have carried the burden of overcoming the presumption of legitimacy, because she was the party challenging it. Davis v. Davis, 5 Nav. R. 169, 172 (1987). We then ruled as follows:
[C]lear and convincing evidence proving one of the following will overcome the presumption of legitimacy: (1) That the husband is infertile or sterile and unable to father children; or (2) That the husband was entirely absent from his wife during the period conception must have occurred; or (3) That the husband was present but no sexual intercourse took place during the period of conception.
Id. at 172. We also stated that “[b]lood grouping tests have been used with great success in other courts for determining paternity.” Id. We remanded the case for proceedings consistent with the guidelines established. Id. at 173.
On remand, the only issue was the child’s paternity. The trial court record shows that neither party presented any significant evidence on remand. The record contains the same conflicting testimonies of the parties and the inconclusive physician’s letter. Nothing substantial was added to the record. That may be because both parties changed attorneys so many times that the focus of the case disappeared in the shuffle. On June 6, 1990, the trial court ruled that Davis was the father because Means had not presented any evidence to rebut the legal presumption of legitimacy.
Means insisted that Davis was not the father and filed the second appeal on *102July 5, 1990. We dismissed that appeal because counsel for Means failed to file a brief as required by our civil appellate procedure rules. Davis v. Means, 6 Nav. R. 278 (1990).
Davis sought visitation with the child, but Means denied him access. Davis filed a petition for joint custody in the Window Rock Family Court, which rendered its Final Decree of Joint Custody on May 3, 1991. The Decree granted Davis and Means joint legal custody of the child and ordered “gradual introduction of visitation” between Davis and the child. The Decree also orderd the Navajo Division of Social Services to perform a home study of “each party to determine how best to implement the exercise of visitation and joint custody ordered” by the court. Poor communication between Means and the social worker prevented the completion of a home study.
Means continued to deny Davis access to the child, restating her belief that Davis was not the father of her child. Consequently, the family court ordered Means to show cause why she should not be held in contempt for refusing to obey its orders. The court held a hearing where Means testified that the court could fine or imprison her, but she would not permit Davis to establish a father-son relationship with her son. On August 25,1993, the court held Means in contempt and verbally admonished her for her conduct.
The basis for the present appeal is order B of the family court’s August 25, 1993 Final Judgment, which is as follows:
B. The implementation of the visitation schedule will be delayed until [the child] reaches over the age of twelve (12) years old. At that time, a psychological and emotional evaluation will be completed. With guidance from professional counselors, he can establish a father-son relationship if the child so chooses.
Davis claims that this order denies his fundamental right as a parent to visit with his son.
II
The family is the core of Navajo society. Thus, family cohesion is a fundamental tenet of the Navajo People. It is Navajo customary law — Dine Bi Beehaz’aanii — or Navaj o common law. See Bennett v. Navajo Board of Election Supervisors, 6 Nav. R. 319, 324 (1990) (discussing Dine Bi Beehaz’aanii). The Navajo Nation courts must apply that tenet to disputes involving children under the doctrine of parens patriae. See, Barber v. Barber, 5 Nav. R. 9 (1984) (a Navajo court must act as the parent of the child and do what is in the best interest of the child). The parties to this appeal agree that the child’s best interests supersede their own wants.
Family cohesion under Navajo common law means there is a father, a mother and children. They comprise the complete initial family unit and are protected as such inside and outside the blessed home (hooghan) by the Holy People. The *103eternal fire burning in the center of the hogan is testament that the family is central to Navajo culture and will remain so in perpetuity.
Navajo common law on the family extends beyond the nuclear family to the child’s grandparents, uncles, aunts, cousins and the clan relationships. This is inherent in the Navajo doctrine of ak’ei (kinship). Two noted writers have said this of Navajo kinship:
The importance of his relatives to the Navaho can scarcely be exaggerated. The worst that one may say of another person is, “He acts as if he didn’t have any relatives.” Conversely, the ideal of behavior often enunciated by headmen is, “Act as if nobody were related to you.” Clyde Kluckhohn and Dorothea Leighton, The Navaho, 100 (Rev. ed. 1974).
When the family is complete, there is peace and harmony, which produces beautiful and intelligent children and happiness and prosperity throughout all the relationships. The family is blessed.
Paternity must be established for children, because children must know their father’s clan to avoid incestuous relationships when they come of age. Navajo children are “bom for” their father’s clan. Children are owed obligations by their father’s clan, and have obligations to it. Children are the fabric of a clan. Thus, the clan members want to know their children and have a right to know under Navajo common law.
In this case, the mother’s insistence that Davis is not the father, in spite of the family court’s ruling, causes dissension in the family unit. This is manifested by threats, animosity, confrontations, and disruptions in the lives of the parties and the child. Under Navajo common law, this family cannot achieve stability, and thus harmony, until the court determines with reasonable certainty which of the two men is the father of the child.
Under the Navajo doctrine of ak’ei, the grandparents, other extended family members, and the clan relations have a right to know the biological heritage of a child. The Navajo maxim is this: “It must be known precisely from where one has originated.” This means all of the child’s relations must know who the parents are, so the child will eventually know who is related and not related to him or her. The maxim focuses on the identity of a person (here the child) and his or her place in the world, and is a crucial component of the tenet of family cohesion.
Knowing one’s point of origination (meaning the parents) is extremely important to the Navajo People, because only then will a person know which adoone ’e (clan) and dine’e (people) the person is. Those precepts are essential to a Navajo’s identity and must be known for Navajo religious ceremonies. One must know them to seek hozho (harmony and peace). When applied to a child, they are necessary for the child’s emotional, physical, and spiritual well-being. Thus, under Navajo common law, the child’s best interests require that the father be determined with reasonable certainty.
There are other important reasons for determining the child’s father in this *104case. Means and her husband enrolled the child in the Lakota (Sioux) Tribe. Obviously, if the child does not have Lakota blood then he cannot legally be enrolled in that tribe. The Navajo Tribe would be the only tribe to enroll the child. Enrollment is an eligibility requirement for various benefits such as educational assistance, land assignments, medical care and other benefits which are particular to an Indian tribe. Inheritance, child support, religious training, and the father’s rights to make decisions regarding his child’s education and future are also important reasons for determining the child’s paternity.
The best interests of the child can be served only by the court determining with a reasonable certainty which of the two men is the father of the child. Our conclusion is supported by Navajo common law and the reasons identified above.
Ill
The best procedure for resolving the issue of paternity in this case is through blood testing or chromosome (DNA) testing or both. These scientific methods provide the best practical solution given the lack of evidence presented at trial. We establish that a Navajo Nation court has power, either on its own motion or on motion of any party, to order scientific testing to aid it in making a decision on paternity. The Navajo Rules of Civil Procedure restates that power:
When the mental or physical conditions (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control....
Nav. R. Civ. P. 35(a).
The sparse and conflicting evidence on paternity offered by the parties in this case gave little assistance to the trial court in arriving at its decision. Decisions affecting paternity are too important to Navajo society and common law to be based solely on insubstantial and speculative evidence.
This case is similar to a paternity case decided by an Arizona court. There the court said, “[t]he lack of evidence presented in this case is particularly disturbing considering the present availability of sophisticated blood testing and other procedures. Such testing can be an invaluable aid in excluding or identifying a child’s natural parents.” Allen v. Sullivan, 677 P.2d 305, 308 (1984) (Judge Meyerson concurring). Likewise, in Chavez v. Thomas, 5 Nav. R. 33 (1985), blood testing served an invaluable aid in solving a paternity dispute. We believe blood or chromosome testing can serve the same role in this case.
Some concerns were raised by counsel at oral argument that drawing of blood samples may be against the beliefs of Means or her husband, Russell. That argument was not developed, and it could be probative under different facts, but here the best interests of the child outweigh any concerns the Means may have about scientific testing. Moreover, the parties agree that the child’s best interests take *105precedence over their own desires.
The family court is in the best position, with the input of the parties, to set forth the details on which scientific testing should be used, who should be tested, who should bear the expenses, and how the results should be introduced, interpreted, and used. It would benefit all the parties concerned, including Mr. Means, to cooperate with the family court in arriving at a final solution to this case.
The trial court’s decision that Davis is the father of the child is res judicata and binds all parties to that case. Halwood v. Estate of Badonie. 6 Nav. R. 16 (1988). The judgment declaring Davis to be the father may be reopened or overturned only upon a showing of new evidence or “other reason justifying relief from the enforcement of the judgment.” Nav. R. Civ. P. 60(c). This Court finds that such “other reason,” is the making of a more precise determination of paternity, in the best interests of the child, through scientific testing as described in this opinion.
We remand this case to the Window Rock Family Court for the entry of orders requiring the parties to submit to blood and/or chromosome testing. In the event that Means refuses to cooperate with the process, or urges others not to cooperate as may be necessary for a conclusion to this case, the family court shall use its powers to enforce the prior order establishing paternity and order immediate visitation. If the parties cooperate, and the family court finds Davis not to be the child’s father, the prior judgment shall be reopened for a decision in accordance with the scientific finding. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502384/ | Upon a motion made and seconded, for an inquiry into the qualifications of the member from Hopkinton, a question was put, whether the house would enter into the consideration of the right to a seat of any member or members, in consequence of a motion made for that purpose, upon the member [making it] declaring that he stands ready to prove the disqualifications, and [it was] determined in the affirmative. The motion then subsided.2
3 J. H. 90. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502386/ | On the representation of Benjamin Bonney, one of the selectmen of the town of Chesterfield, that the election of Russell Kellogg, returned a representative from said town, was illegal, Messrs. Mitchell, of Bridgewater, Curtis, of Worcester, and Ilosmer, of Concord, were appointed a committee to inquire into the matter of his election.1
*8The committee reported the following statement of facts, viz.: — that, immediately after the selectmen had declared the choice,1 the [qualifications of some of the] voters were disputed, and seven or eight persons said to have no light to vote, not being qualified according to the constitution, four of whom appear to have no right to vote, and, the others, the committee could not ascertain, whether they had or had not: that, upon a motion made in the meeting, for a reconsideration [of the choice,] it passed in the negative: that the number of selectmen in Chesterfield is three, one of whom is Mr. Kellogg (the member,) and the other two, considering the choice to be illegal, refused to certify, but one of them being told by Mr. Kellogg, that if he did not certify, he. would be subjected to a fine, afterwards signed the certificate.2
Upon this report, after debate, it was made a question, « whether there is legal evidence, that Mr. Russell Kellogg was chosen a representative for the town of Chesterfield?” which being put, it was determined in the negative : number of members 109, yeas 42.
A precept was, the same day, ordered to be issued for a new election in Chesterfield.3
4 J. H. 76,
It does not appear in the report, bttt is stated in Bonney’s petition, that the whole number of votes given in was 54, of which Mr. Kellogg received 30.
4 J. H. 97.
Same, 101. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502387/ | Jerathmiel Bowers being returned a member from the town of Swansey, the selectmen of Rehoboth4 and sundry inhabitants of Swansey petitioned, that he might be excluded .from a seat, on the ground, that “ he had not shown himself friendly in the late struggle with Great Britain,” and also, that he was disqualified by virtue of a resolve of a former general .court. .
*9The subject was referred to a committee, who reported,1 that, by a resolve of the general court, passed April 7th, 1777, the said Jerathmiel Bowers was disqualified from holding any post of honor or profit in this commonwealth, which resolve, in the opinion of the committee, was still in force, and that Mr. Bowers was therefore disqualified from holding a seat, The report was agreed to, and Mr. Bowers quitted his seat accordingly.
Same 16.
4 J. H. 20. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502388/ | It being represented, that Silas Fowler, the member from South wick, had been instrumental in raising the late disturbances in the county of Hampshire, a committee was appointed to inquire into his character and conduct.2
The committee reported, that, the general character of Mr. Fowler was that of being a principal agent in exciting and promoting the disturbances which had lately taken place in the county of Hampshire, and, that he had said, “ that he would spend his life and fortune but law should be suspended in the county of Hampshire, till they had a redress of grievances.”3
The report was considered upon two successive days, and after long debate the question was put, “ whether the said Fowler should retain his seat as a representative ?” which passed in the affirmative, ninety members to fifty-five.4
Same, 37, 38
Same, 41.
Same, 47. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502389/ | John Williams, having been returned a member from the town of Deerfield, at the May session, a committee was appointed to inquire into his political character and conduct, and to consider the propriety of his holding a seat.1
By the report of the committee2 and certain papers laid before the house at their request,3 by the secretary, it appeared that Mr. Williams had been arrested and put under bond, by the governor and council, (in pursuance of a resolve of the general court, passed March 10, 1781,'4) to appear at the superior court of judicature, held at Springfield, in September, 1781, to answer to such matters, as might then and there be objected against him, touching his conduct, in the war with Great Britain.5
The attorney general, being called upon for the purpose, appeared and stated, that he had not received any papers or evidence, to enable him to take measures for prosecuting Mr. Williams,6 and consequently that no prosecution had been instituted against him. He was thereupon directed to inspect the papers on file in the secretary’s office, relative to Williams *11and others, and to commence a prosecution against the persons mentioned therein, if there should appear foundation for a criminal proceeding against them.
A motion was then made and seconded, that Mr. Williams should be excluded from, his seat, and after debate, the question was put and passed in the affirmative, 60 members out of 103 voting in favor of the motion.
A precept was issued to the town of Deerfield for a new election,1 and, at the next session, Mr. Williams was again returned a member.2 When he appeared to take his seat,3 the house proceeded to consider the propriety of his being qualified, and it was made a question, whether the record of the vote, excluding him from his seat at the last session, without assigning any reason therefor, rendered him ineligible as a representative, in the present general court? which, being put, passed unanimously in the negative. It was then moved, that a committee be appointed, to inquire whether any prosecution has been commenced against Mr. Williams, or whether he is chargeable with any crimes or misdemeanors, which exclude him from a seat. The question on this motion was postponed to the afternoon, and in the meantime the treasurer was ordered to lay the bond abovementioned before the house.
In the afternoon, the treasurer appeared and produced the bond alluded to, which having been read, it was made a question, whether the house will go into the consideration of the disqualifications of Mr. Williams as a representative ? which was determined in the negative. It was then voted, “that John Williams, returned as a representative from the town of Deerfield, at this sitting of the house, having been excluded this house in their last sitting, as a person incapable of being a representative for said town, in this general court, be excluded a seat, he, by the said former exclusion, being incapable of holding a seat in this house for this general court:” number of members present 114, yeas 78.4
4 J. H. 149.
Same, 160.
Same.
The following is a copy of this resolve.
Resolve requesting the governor, with advice of council, to restrict John Williams, Seth Catlin, and Jonathan Ashley, in such a manner as the commonwealth may receive no injury.
Whereas it appears to this court, from the examination of John Williams, Seth. Catlin, and Jonathan Ashley, touching the instructions given the representatives of the town of Deerfield, and from the particular time at which these instructions were given, that there are just grounds of suspicion, that the said John Williams, Seth Catlin, and Jonathan Ashley, are unfriendly to the independence of the United States.
Therefore, Resolved, That the governor, with advice of council, he, and he hereby is, requested to lay the said John Williams, Seth Catlin, and Jonathan Ashley, under such restrictions, as that the commonwealth receive no injury from them or either of them.
See the “ Case of John Williams,” 1785—1786.
4 J. H. 164, 168.
4 J. H. 174.
Same, 177.
Same, 242,
Same, 243. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502390/ | It being represented, that Abiel Wood, the member returned from Pownalborough, had been put under bond for Ms good behaviour, the messenger was directed to acquaint him that the house required his attendance.1 Mr. Wood not appearing, the messenger was inquired of, the next day,2 by the house, in what manner he notified him of the order passed for his appearance in his place. The messenger informed the house that he left word at Iris lodgings, and was afterwards informed, that Mr. Wood received the notice and replied, that he would see some of the members, respecting the matter. A committee was then appointed to inquire into the conduct and character of Mr. Wood, and report what measures might be proper to be taken respecting him.
The committee, on the same day, reported a preamble and resolve3 reciting, that “ whereas a former general court did order that Abiel Wood should be confined until he should give bond, with two sufficient sureties, in the sum of one thousand pounds, conditioned, that he should not, in any way, correspond with any of the enemies of this country, and that lie should appear at any time, and answer to any complaint, that should be made against him, which bond did not appear to be annulled or cancelled: and whereas he had been chosen and taken his seat as a representative, and had moved the house for leave of absence, which had been refused, notwithstanding which, and in derogation of the dignity of the house, he had absented himself, and although he had been notified that the bouse required him to attend in his place, yet in further contempt of the same, had refused to attend : therefore
Ensolved, That the said Abiel Wood., be, and lie hereby is, expelled the house, and his place is become vacant.”
The report was agreed to.
4 J. H. 26.
Same, 29.
Same, 30. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502648/ | Journal Entries: (i) Sept. 10, 1822: libel filed, notice ordered published; (2) Oct. 9, 1822: proclamation made, evidence heard; (3) Oct. 10, 1822: property condemned, sale and notice of sale ordered.
Papers in File (1822): (1) Libel; (2) form of interrogatories; (3-4) subpoenas; (5) return of sales.
File No..... | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502392/ | Certain charges being said to be pending in the supreme judicial court, against Jeremiah Learned, the member from Oxford, it was ordered, that Messrs. Fessenden, of Rutland, Sullioan, of Boston, and Chamberlain, of Chelmsford, be a committee to inquire into and report a statement of facts relative thereto. The committee reported that he was under an indictment upon which trial was not had. They were then directed to consider, whether the charge'was such as rendered Mr. Learned incapable of holding a seat. They reported, “that as the charge against the said Learned is for a trespass, *15they can find nothing in the constitution, which considers him as a person disqualified to hold his seat.” The house proceeded, on the next day, to consider this report, and after debate, resolved as follows, viz.: “ Jeremiah Learned, Esq., returned as a member from Oxford, being indicted at the supreme judicial court, for seditiously and riotously opposing the collection of public taxes, and being bound by recognizance, with sureties, to appear and take his trial, at the supreme judicial court next to be holden at Worcester, within and for the comity of Worcester, on the third Tuesday of September next, and in the mean time to keep the peace, and to be of good behavior:
Resolved, That the said Jeremiah Learned’s right to hold a seat in the house be suspended, until he shall have his trial on the aforesaid indictment.”1
At the next session,2 a committee was appointed, to consider what further measures, if any, might be necessary to be taken, with respect to the case of Mr. Learned, but they do not appear to have made any report.
5 J. H. 13, 18.
Same, 354. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502393/ | Joshua Hubbard having been returned a member from the town of Kittery, a petition was received from a number of the freeholders of that town, praying that he might not be permitted to hold his seat, on the ground that he was inimical to the government.3
The petitioners alleged, that Mr. Hubbard had been reported an enemy to the country, through the most difficult periods of *16the late war, and had refused to lend his assistance in raising men or money to carry it on; that he had said, he hoped Great Britain would conquer this country, and had suffered himself to be carried to gaol, rather than take arms or pay his quota towards hiring soldiers to defend it; that he had associated with those who were open enemies to the country; that he had attempted to join the society called quakers, in order to avoid taking a part in the contest; and had subsequently relinquished his pretensions to quakerism, -when the affairs of the country wore a more promising aspect.
The committee, to whom the petition was referred, reported, that it was not supported by evidence, and that if the facts set forth therein were proved, there would not therefrom arise sufficient cause to render the said Hubbard ineligible as a representative, or justify the house in excluding him from a seat. The report having been read, it was thereupon ordered, that the petitioners have leave to withdraw their petition.1
5 J. H. 51.
5 J. H. 62. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502394/ | The election of Staples Chamberlain, the member returned from Holliston, was objected to by sundry inhabitants of that town, on the ground, that there was not due notice given of the meeting, at which he was elected.
The petition alleged, that it had been the constant custom and established usage in Holliston, in regard to the notifying of meetings for the choice of representatives, under the former constitution, for the selectmen to post up a notification, at the public meeting-house, so that it might be seen by the inhabitants, on two public clays, or fourteen days before the choice : that on the 7th day of May instant, the constable, by order of the selectmen, posted up at the public meeting-house, two notifications for two meetings to be held on the thirteenth day of *17the same month, one for the choice of a representative, and the other for the transaction of town business : that there was no public meeting between the seventh and thirteenth of May, by reason of the infirmity of their pastor: and that, after the election of Mr. Chamberlain, at the meeting on the thirteenth instant, the meeting being opened for the transaction of town business, it was objected, that the meetings were not legally warned or notified, and thereupon the selectmen discontinued the second meeting, for that reason, and notified a new one.
The petition was referred to Messrs. Hos-mer, of Concord, Chamberlain, of Chelmsford, and Fairbanks, of Bolton, who made a report thereon, which was not agreed to; and it was thereupon ordered, that the petitioners have leave to withdraw their petition.1
5 J. H. 31, 37. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502567/ | At the adjourned session, in September, Mr. Francis J. Oliver, one of the members returned from the city of Boston, appeared for the first time, and was qualified and took Ms seat. Immediately afterwards, a committee was appointed, (the committee on elections having been discharged with the other committees,) to inquire into Mr. Oliver’s right to his seat.2 The committee reported, in a day or two, that they had made some progress in the inquiry, but not having been able to investigate the subject, so far as to arrive at a correct conclusion in the premises, they asked to be discharged from the further consideration of the subject. The report was agreed to.3
Same, 342.
Same, 352. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502396/ | On a motion, that the qualifications of John Pitts, Esq., returned a member from the town of Dunstable, should be inquired into as to residence, Mr. Pitts being heard on the subject, it was made a question, whether the reasons offered by him, relative to his holding his seat, were satisfactory to the house, and the question being put, it passed in the affirmative.1
6 J. H. 20. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502397/ | John Williams being returned a member from the town of Deerfield, Mr. White, of Rochester, laid before the lion.se a copy of an indictment, found against him at the supreme judicial court, held at Springfield, in September, 1783, for sedition.2
The subject was referred to a committee, who reported, that at the supreme judicial court, held at Northampton, in April, 1784, Mr. Williams was arraigned upon the indictment, and pleaded that he was not guilty thereof, and also suggested to the court, that he was indicted for the part which he had taken in the late war, in favor of Great Britain, and that he was *20justly entitled to the benefit of the 6th article in the treaty between Great Britain and the United States, as adopted in a late law of the commonwealth, and prayed that he might be discharged from the said indictment: whereupon, the court, considering his case within the said article, discharged him. The committee therefore recommended that he be permitted to hold his seat. The report was agreed to.1
Same, 57.
6 J. H. 70. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502401/ | A letter was received from Elbridge Gerry, Esq., one of the representatives from Marblehead, stating that he had removed to Cambridge, and requesting the opinion of the house, whether his removal was a “ disqualifying circumstance.” The communication was referred to a committee, who reported, “that, having examined the constitution, they can find nothing in the same incompatible with the said Gerry’s serving the town of Marblehead, as their representative, the remainder of the present year, his having removed to Cambridge notwithstanding.” The report was agreed to.1
7 J. H. 195. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502950/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
This case serves as a reminder to parties and their attorneys that Navajo statutory and common law prohibit interlocutory appeals in Navajo courts. The purpose for this rule is to discourage “piecemeal litigation,” that would tax the Navajo Nation’s already overburdened courts. McClellan v. McClellan, 5 Nav. R. 204, 205 (1987). Parties and their attorneys who violate this rule, as in this case, may be ordered to pay opposing parties’ costs and attorney’s fees.
The relevant facts of this case are simple. Plaintiff Maria Wilson (Appellant) filed a complaint against the Defendants, Judy Van Keuren, Dennis Marshall, and Van’s Trading Company (Appellees). The Appellees timely filed an answer. The Appellant’s counsel claimed that the Appellees failed to serve them with a copy of the answer. The Appellant then filed a motion for entry of default against the Appellees. As a result of a telephone conversation between counsel for both parties, the Appellees claim that the Appellant refused to withdraw the motion for entry of default, while the Appellant claims that the Appellees’ counsel advised her counsel to let the court rule on the motion.
On August 15, 1994, the district court denied the motion for entry of default and ordered attorney’s fees and costs to be assessed against the Appellant for failing to adequately investigate the facts underlying the motion. At that time, the district court had not yet ruled on the merits of the case, and has still not judged the case on the merits. The Appellant appeals the district court’s order.
*107I
The central issue in this case is whether the district court’s order is a final order for purposes of an appeal. The Navajo Nation Code permits parties to appeal only final orders: “Every person aggrieved by any ...final order of the District Court of the Navajo Nation ... shall within 30 days ... appeal to the Supreme Court.” 7 N.T.C. § 801(a) (Supp. 1984-85) (emphasis added). If the district court’s order is not final, the Code bars a party from appealing.
We have developed a three-part test to determine whether a court’s action amounts to a final order. In Chuska Energy Co. v. Navajo Tax Comm ’n, we stated that, “[t]he Supreme Court is unavailable for review until all the substantial rights of the parties have been determined .... The case must be fully adjudicated on the merits, and the entry of the final decision must preclude further proceedings in the lower tribunal.” 5 Nav. R. 98, 102 (1986), see e.g., Tsosie v. Charlee, 6 Nav. R. 280, 282 (1990) (holding that the order awarding child support and arrearages was a final appealable order); Billie v. Abbott, 5 Nav. R. 201, 202- 203 (1987) (applying Chuska and holding that denial of a motion to dismiss for lack of jurisdiction was not a final appealable order); McClellan, 5 Nav. R. at 205 (citing Chuska with approval and holding that order denying motion to dismiss is not an appealable final order); see also, Peterson v. Wayne Lovelady’s Frontier Ford Corp., 2 Nav. R. 44, 45 (1979) (stating that “there is no right to an interlocutory appeal.”). Thus, if the Appellant fails any part of the Chuska test, then this Court does not have jurisdiction to hear her appeal.
The Appellant fails the first prong of the Chuska test: “[A]ll the substantial rights of the parties [must] have been determined.” 5 Nav. R. at 102. The district court record shows that there have been no rulings on the merits of the case. The Appellant is therefore barred from appealing the district court’s denial of her motion for entry of default.
Although the Appellant’s failure to satisfy part one of the Chuska test is sufficient to dispense with the appeal, the Appellant also fails parts two and three of the test. Under prong two, “the case must be fully adjudicated on the merits.” 5 Nav. R. at 102. Under prong three, “the entry of the final decision must preclude further proceedings in the lower tribunal.” Id. Put another way, there cannot be “further proceedings remaining in the lower court on the merits of the case.” Tsosie, 6 Nav. R. at 282. As noted above, the district court has yet to rule on the merits of the case. Thus, the Appellant also fails parts two and three of the Chuska test, and is barred from appealing the district court’s denial of her motion for entry of default.
As we have said on other similar occasions, “[interlocutory appeals are not allowed within the Navajo court system.” Billie, 5 Nav. R. 201, 203 (citation omitted). Our holding today is consistent with that general rule which prohibits interlocutory appeals.
*108II
The Appellees seek sanctions against the Appellant for filing a frivolous appeal. The Navajo Rules of Civil Appellate Procedure provides that where an appeal is “frivolous or taken solely for the purpose of delay... the Supreme Court may impose upon the offending attorneys, or parties, or both... penalties or damages (including contempt, withholding or imposing of costs, or imposing of attorney’s fees)....” N.R.C.A.P. 29. Frivolous appeal is defined as “[Ojne in which no justifiable question has been presented and appeal is readily recognizable as devoid of merit in that there is little prospect that it can ever succeed.” Black’s Law Dictionary 601 (5th ed. 1979). Given established Navajo law on interlocutory appeals discussed above, this appeal comes well within the definition of frivolous appeal.
The Appellant has failed to present a justifiable question to this Court. The Appellant’s interlocutory appeal is barred by both statutory and Navajo common law. Thus, the appeal is devoid of merit. Moreover, because the Appellant’s appeal is barred by Navajo law, it cannot succeed. We hold that the appeal is frivolous.
The Appellant has forced the Appellees to incur attorney’s fees and costs in defending this frivolous appeal. Therefore, we order both the Appellant and her attorney to pay the Appellees’ attorney’s fees and costs associated with defending this appeal. The Appellees’ counsel shall file a statement with this Court showing the amount of fees and costs expended to defend the appeal. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502403/ | A committee having been appointed to examine into the number of ratable polls in the several towns in the commonwealth, and compare them with the number of representatives from the said towns,2 and having made report ■3 — it was thereupon ordered, that the same committee report upon what principles, in what’'manner, and by what rules, questions, upon the returns of the number of representatives from the towns, ought to be determined.
The committee made a report,4 which was agreed to, as foi-*25lows. viz.: — “ That when any town in this commonwealth sends one or more members to represent them in the general court, more than they have a right by the number of ratable polls returned in the last valuation, agreeably to the constitution, the said member or members, to entitle them to their seats, shall produce, as evidence of the increase of the ratable polls to give them the right, an attested copy of the return of the last tax bill of said town by the assessors, who shall mate oath to the same ; and also, that said ratable polls were inhabitants one year at least preceding the election.”
Same, 32.
Same, 46.
Same, 72. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502404/ | Joshua Eddy and others, inhabitants of the town of Middle-borough, petitioned that Perez Thomas, returned a member from that town, might be excluded from his seat, on account of his political character and conduct, alleging him to have been friendly to Shays’s proceedings against the government.1
The petition was presented at the June session and referred to a committee, who reported an order for the hearing of the case, on the first Tuesday of the next session of the general court, which was agreed to.2
At the next session, Eddy, in behalf of the petitioners, petitioned for leave to withdraw their petition, which was granted.3
8 J. H. 68.
Same, 107.
Same, 227. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502406/ | The election of the Rev. Samuel Perley, returned a member from the town of Gray, was controverted by Samuel Nash and others, for several reasons, and among others for the following, as stated by the petitioners : “ Because we suppose, that those, who impose taxes upon us, ought to be those only who pay a proportion of those taxes, which the said Perley, being a minister of the gospel, is not obliged by law to do.”2 The petitioners, upon the report of a committee, to whom their petition was committed, had leave to withdraw.3
In England, in the year 1801, the election of the Rev. John Horne Tooke gave rise to an inquiry, by a select committee of the house of commons, into the eligibility of persons in holy orders as members of that house. But the precedents collected by the committee were so obscure and inconclusive, that the house of commons refused, upon the authority of them, to declare Mr. Horne Tooke ineligible. The act of 41 Geo. III. c. 63, was thereupon passed, by which it was declared, “ that no person, having been ordained to the office of priest or deacon, or being a minister of the church of Scotland,” shall be capable of election as a member of parliament. See 35 Hans. Parl. Hist. 1402, 1414, 1542, 1544.
9 J. H. 51, 56, 139. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502407/ | A committee of both branches was appointed, to consider whether members of either house, who hold offices under th# *29United States, similar to those declared incompatible with their holding seats in the legislature of this commonwealth, by the constitution thereof, have a right to continue to sit as members.
The committee made a report in the senate, that members holding such offices ought not to retain their seats in either branch of the legislature. The report was rejected in the senate, and their proceeding thereon was sent to the house for concurrence.
It was then made a question in the house, whether persons, holding offices under the United States, similar to those, declared by the constitution of this commonwealth, incompatible with their holding seats in the legislature thereof, can have a constitutional right to retain their seats in this house ? and after being debated on two successive days, it was taken by yeas and nays, and decided in the negative, yeas 24, nays 137.1
10 J. H. 149, 180, 182, 183. The same subject was brought up the next year, and a bill reported, by a committee appointed for the purpose, “ determining how far officers, in the pay of the federal government of the United States, shall be eligible to offices under the authority of the government of this commonwealth.” The bill was rejected. See 11 J. H. 66, 82, 169, 289. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502408/ | On motion, the house assigned a time to consider whether the seat of Christopher Gore, a member from Boston, had become vacant, by his acceptance of the appointment of attorney to the United States, within this commonwealth.2 Mr. Gore3 *30subsequently resigned his seat, and the subject does not appear to have been again .agitated.1
[The question was probably considered by Mr. Gore, to have been settled by the vote above stated.]
10 J. H. 189.
It is an ancient and well established principle of the law of England, that all persons, who are free from disqualification, are eligible as members of the house of commons, even against their expressed inclination; and that after their election, they cannot renounce the office, but must serve in the trust conferred upon them ; for the reason, that it is “ a trust not for their own, but for the public benefit.” Hence, it is a settled principle of parliamentary law, that, a member cannot relinquish or resign his seat as such. But, as certain offices under the crown are declared by law to*be incompatible with a seat in the house of commons, and members accepting them *30thereby vacate their seats, this provision of law has been, made use of, and is con-st&ntly resorted to, in order to enable members to evade the parliamentary restriction as to resignation. Two or three offices, which are now merely nominal in their character, are appropriated by the government for this purpose. Whenever a member of the house of commons, of whatever party, wishes to relinquish his seat, he applies to the proper department of government for an appointment to one of these offices; which being conferred upon him (and they are seldom or never refused) his seat in parliament is thereby vacated. The object of the appointment being thus effected, the office is immediately resigned. The offices usually conferred for this purpose are those of steward or bailiff of the three Chiltern Hundreds, Stoke, Desborough, and Bonenham, or of the manors of East Hendred and Northstead.
In. 1828, the poet Southey, who had been elected a member for Downton, during his absence on the continent, availed himself of the provision of law mentioned in a note on a preceding page, requiring members to possess a certain amount of property, in order to avoid serving as a member. lie addressed a letter to the speaker, m which he stated, that he did not possess the estate required by law to qualify him as a member; and the house thereupon, after waiting the proper time, issued a writ for a new election.
In this country, it is probably true, that every person, elected a member of a legislative assembly, may decline the office ; but if he accepts, and takes his seat, it may be doubted, whether he can resign without the consent of the body of which he is a member.
10 J. H. 207. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502409/ | The Hon. David Sewall, judge; of the district court for the district of Maine, appearing to take his seat as a member from the town of York; on motion, it was ordered, that a time be assigned for considering the validity of Ms election, and that he be heard on the subject. The house having considered the subject, at the time assigned, it was made a question, whether *31Mr. Bewail, being a judge of the district court of the United States, has a right, by the constitution of this commonwealth, to a seat in this house? and being taken by yeas and nays, it was decided in the negative, 5 yeas and 111 nays. A precept was then ordered to the town of York for a -new election.1 [See the eighth article of the amendments to the constitution, which provides, that “ no person holding any office under the authority of the United States, (postmasters excepted) shall, at the same time, hold the office of governor, lieutenant-governor, or counsellor, or have a seat in the senate, or house of representatives of this commonwealth.”]
11 J. H. 172, 175. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502649/ | Journal Entries: (i) Sept. 16, 1822: alias capias ordered issued; (2) Sept. 26, 1823: stricken from docket.
Papers in File (1822): (1) Precipe for capias; (2) capias and return.
File No. 31 of 1822. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502952/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
This is a ruling on a motion for substitution of parties. The motion arises in a consolidated appeal from Navajo Nation Labor Commission (“Commission”) judgments entered against Leupp Schools, Inc., the Respondent-Appellant.
I. Facts
The Commission awarded the Petitioners-Appellees (“Petitioners”), Navajo administrators who resigned from their positions with Leupp Schools in October of 1992, judgments equivalent to their unpaid salary and benefits for the 1992-1993 school year. These judgments, along with findings of fact and conclusions of law, were entered against Leupp Schools on December 9, 1993. Leupp Schools appealed and the Petitioners cross-appealed.
California Insurance Company, an Industrial Indemnity subsidiary, was providing coverage for Leupp Schools. Although California Insurance denied Leupp Schools’ claim for payment of the Commission judgments under its liability policy, Industrial Indemnity paid the Petitioners the full amount of their judgments in return for which it received an assignment of rights in the judgments and the Petitioners’ agreement to consent to Industrial Indemnity substituting as Petitioner-Appellee.
Thus, on September 26, 1994, Industrial Indemnity moved for an order substituting itself in place of the Petitioners. On October 6, 1994, the Petitioners filed a notice of voluntary dismissal of their cross-appeal at the request of Industrial Indemnity.
*121II. Issues
As the issue of substitution raised in this appeal is of first impression for the Court, in addition to ruling on the motion to substitute, the Court takes this opportunity to provide guidelines for substitution of parties in actions brought in Navajo Nation courts.
III. Discussion
A. General Guidelines
Substitution of parties in actions pending in Navajo Nation courts is an extraordinary procedure, generally not allowed, and particularly not on appeal. Following the practice of federal and state courts, in Navajo Nation courts, substitution may be permitted where the cause of action remains the same and the party substituted is the successor in interest to the original party. 67A C.J.S. Parties § 56. Consistent with the concern for preserving the cause of action, substitution which alters the issues will not be allowed on appeal. The guiding principle in all cases is whether substitution will assist in determining a controversy’s true merits.
When ruling on substitution at trial and appellate levels, the Navajo Nation courts exercise broad discretion. This discretion is not broad in the sense of providing free rein.
The use of the word “discretion” as applied to judges or courts means discretion to act within certain boundaries. For judicial discretion those boundaries are the rules and principles of law as applied to the facts of a particular case.
In re Contempt of: Sells, 5 Nav. R. 37, 38 (1985) (citations omitted). Discretion is broad in the sense that it opens the scope of inquiry, allowing courts to consider all relevant facts and circumstances with the aim of protecting the parties, including the party seeking substitution, against prejudice or harm.
1. Navajo Common Law Due Process
This broad scope of inquiry is in keeping with the general Navajo common law rule of due process articulated in Begay v. Navajo Nation, 6 Nav. R. 20, 24 (1988): “The Navajo people have an established custom of notifying all involved parties in a controversy and allowing them, and even other interested parties, an opportunity to present and defend their positions.”
All perspectives are important for a court to hear when making discretionary rulings. The court need not, however, make all who are interested actual parties to the action in order to provide them with the opportunity to voice their positions. For example, anyone with a strong interest in the subject matter of an action may petition the court for permission to file an amicus curiae, or friend of *122court, brief. In the case before this Court, the motion and accompanying brief have served to inform the Court of Industrial Indemnity’s position. As noted above, the concern for due process requires that a court consider whether prejudice or harm will come to anyone when ruling on substitution.
B. Application of Guidelines to Motion made on Appeal
Two questions must be answered to determine if substitution is permissible in this case. The first question is whether substitution affects the cause of action or the issues on appeal. Industrial Indemnity contends that the appeal concerns the judgments solely, and thus, the substitution will not affect the issues on appeal. However, Industrial Indemnity has already affected the issues by requesting that the Petitioners voluntarily dismiss their cross-appeal. Whether the effect is significant is impossible to assess as the Petitioners never articulated the basis for the cross-appeal. The clearest conclusion to be drawn is that Industrial Indemnity’s request was premature.
The second question is whether Industrial Indemnity is the Petitioners’ successor in interest. As the Petitioners have assigned their interests in the money judgment, there is no question that Industrial Indemnity succeeds to these interests. The Court notes, in response to concerns raised by Leupp Schools, that an assignment of money judgments from claims under the Navajo Preference in Employment Act does not carry with it any interest in the Commission’s findings of fact or conclusions of law.
But the answers to the above two questions do not wholly answer the overall question of whether we should grant substitution in this case.
As substitution in this matter is being sought on appeal, Navajo Rule of Civil Appellate Procedure 21(b) governs. This rule provides as follows: “If substitution of a party is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (a).” Applying a common rule of construction, the Court considers the plain meaning of this rule. If death is not the reason for substitution on appeal, the Court must determine whether or not substitution is necessary. “Necessary” means that a party to the suit is unable to continue the litigation, not that an original party has voluntarily chosen to stop litigating. It also means that prejudice or harm to a party, including the party seeking substitution, is likely if substitution is not allowed.
There is no evidence that the original parties cannot continue the litigation in the case before the Court. Nor is there any indication that prejudice or harm will come from denying the motion. Thus, substitution is not necessary.
Overall, this Court is not convinced that substitution will in any way assist in determining the controversy’s true merits.
Industrial Indemnity’s motion for substitution is denied. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502953/ | OPINION
Opinion delivered by
YAZZIE, Chief Justice.
This is an original proceeding to answer five certified questions from the Tuba City District Court. Jurisdiction is based upon the Navajo Nation Supreme Court’s supervisory control over the trial courts. The questions posed are of first impression, and they address a common legal remedy which affects all trial courts. Given the nature of the issues, this Court exercises its discretionary jurisdiction to provide guidance. The questions are of material importance to the law of the Navajo Nation, and they are issues of substantial public interest.
I
The facts of the certified questions appear in the Tuba City District Court’s certification and they are stated below.
In 1989, Austin and Elizabeth Albert, the respondents in the Tuba City case, purchased a 1979 Redman New Moon mobile home from Leisure Development. The sale is governed by a retail installment contract and security agreement which Leisure Development assigned to Security Pacific Housing, a finance company. Security Pacific assigned its interests under the agreement to Reservation Business Services, the plaintiff in the Tuba City suit. Reservation Business Services’ primary business is the repossession of secured personal property.
Reservation Business Services filed its repossession action in the Tuba City District Court on July 30, 1993. The action is based upon 7 N.T.C. § 607(2) (1968), which prohibits the repossession of secured personal property within the Navajo Nation without the written consent of the debtor in possession or an order of a court in “an appropriate legal proceeding.” The plaintiff relies upon the Rules of Repossession of Personal Property Proceedings (1982), which establishes the “appropriate” legal proceeding in our legal system.
On September 24, 1993, the respondents moved for dismissal of the action *124pursuant to Rule 12(b)(3) of the Navajo Rules of Civil Procedure. That rule provides that the defense of improper venue for an action may be raised in a motion to dismiss. The ground for the motion is that the mobile home is located in the St. Michaels Chapter of the Navajo Nation, which is approximately 150 miles east of Tuba City. The certification does not state, but we assume, that the respondents reside in the mobile home at St. Michaels. The plaintiff responds that venue, or the proper place to hear the case, lies in Tuba City, because of a demand letter to bring the account current made there.
The certification does not state the parties’ contentions regarding the proper • procedural rules for repossession actions, but it does conclude that there are questions about the validity of the 1982 repossession rules.
II
The trial court poses five questions of law, which we restate to better frame them for resolution. They are:
1. Which court rules apply to repossession actions, the 1982 Rules of Repossession Proceedings, the 1989 Rules of Civil Procedure, or both?
2. What is the proper venue or judicial district for repossession proceedings where the property or parties are located within a particular judicial district, and what is the remedy under our rules where an action is brought in the wrong judicial district?
3. What is the rule for defaults in repossession proceedings?
III
In 1968, the Navajo Nation Council addressed an issue of great importance to the consumers of the Navajo Nation. The general law of the United States, enshrined in the Uniform Commercial Code, allows self-help repossession of personal property when there is a default under a purchase agreement. In other words, a creditor has a general right to repossess secured property without notice to the debtor when the creditor determines the purchase agreement is broken by the debtor. The Navajo Nation Council, in Resolution No. CF-26-68 (February 7, 1968), declared the public policy of the Navajo Nation that self-help repossession of secured personal property is illegal, and that secured creditors must obtain the written consent of the debtor prior to repossession or obtain a court order permitting repossession. The preamble to the resolution declares that a creditor or security holder must be in “strict compliance” with the statute. Id. Preamble, § 2. The Council declared that the proper remedy for repossession actions is the common law action of replevin. Id. § 52(b).
In 1969, the Navajo Nation Council revisited the issue and declared that the purpose of our law is “to prevent violence and breach of the peace in the repossession of personal property....” Resolution No. CJN-53-69 (June 4, 1969), Preamble at § 5.
*125The supervised repossession law was popular with Indian nations, and several other jurisdictions adopted it. It was not popular with creditors. We note that perhaps more than any other Navajo Nation statute, our repossession law has been the pretext for federal court challenges, comity disputes in surrounding states, and litigation within the Navajo Nation. Although the Navajo Nation Council has full authority to regulate commercial transactions within our territorial jurisdiction, dissatisfied lenders and collection agencies continue to resist our repossession law and our consumer protection policy.
One such challenge was pending in the federal courts when the 1982 repossession rules were adopted by the Judicial Conference of the Navajo Nation. On July 16,1981, the Office of the Navajo Nation General Counsel reported that our statute, 7 N.T.C. § 609, had survived a challenge in the U.S. District Court for the District of Arizona, Babbit Ford, Inc., and Gurley Motors v. Navajo Tribe, 519 F. Supp. 418, aff’d in part, rev. in part, 710 F.2d 587 (9th Cir. 1983), cert. denied 466 U.S. 926 (1984), but that an appeal by the plaintiffs in that action was possible. Navajo Law Journal 4000 (1982). The statute, at 7 N.T.C. § 607(2), did not state the “appropriate legal proceeding” for a repossession order, but the Council declared its intent to provide the common law remedy of replevin in Section 2(b) of the 1968 resolution.
“Replevin is one of the most ancient and well-defined writs known to the common law.” 66 Am. Jur. 2d Replevin § 1 (1973). “Replevin is a proceeding by which the owner or one who has a general or special property in the chattel taken or detained seeks to recover possession of that specific chattel, the recovery of damages being only an incident thereto.” Id. § 2. It is a possessory action where a plaintiff with the right of possession to personal property seeks the return of the property or damages. Id. § 3.
The Navajo Nation’s general counsel suggested that the Navajo Nation’s interest in its repossession law could be better defended on appeal if its courts clearly defined the procedure for repossession actions. The Navajo Nation Courts have the authority to adopt rules of “pleading, practice, and procedure” to regulate proceedings before the courts. 7 N.T.C. § 601. Courts have both the inherent and statutory power to define the procedures to be used by judges, practitioners and the public to implement judicial jurisdiction. See, Weinstein, Rule-making by the Courts, The Improvement of the Administration of Justice 127-135 (Klein, ed., 6th ed. 1981). At the time, court rules were adopted by a majority vote of Navajo Nation judges, with the approval of the chief justice following review by a tribal attorney. 7 N.T.C. § 601 (1978). That procedure was used for the repossession rules.
The judges and justices of the Navajo Nation Courts have a collegiate body, the Judicial Conference of the Navajo Nation, to take action on court rules and other policy matters. The Judicial Conference met on January 29, 1982 to consider special rules for repossession actions. The Conference intended to implement the Navajo Nation Council’s policy of regulating personal property repos*126session and to clearly define the procedures to be used to implement that policy.
Replevin is a cumbersome and complex judicial proceeding, which is confusing because it is an “ancient” common law writ. The Navajo Nation judges wanted a middle ground between self-help repossession and the delays of normal civil proceedings. They wanted to assure that consumers would be protected from repossession on technical grounds, while offering a prompt and efficient remedy to creditors. The choice reflected in our repossession rules is that there be a summary proceeding for creditors which allows due process protection for debtors. It modified the common law replevin action in a procedure which permits a petition, an order to show cause to the debtor, and a summary hearing to decide the propriety of repossession. The rules offer protection for purchasers of personal property on credit while assuring a healthy business climate.
At the time the repossession rules were adopted in 1982, there were general rules of civil procedure to regulate civil actions. In 1989, the Navajo Nation Supreme Court revised the civil rules to align them with general American practice. The Rules of Civil Procedure track the Federal Rules of Civil Procedure, with adjustments to conform to Navajo Nation circumstances. Rule 2 of the 1989 rules provides (as did the prior rules) that “[tjhere shall be one form of action to be known as ‘civil action.’”
The Navajo Nation has a mixed judicial system. That is, the Navajo Nation Courts follow general American models of practice, procedure and substantive rules while retaining traditional Navajo substantive law and procedure. One of the procedures inherited from the English-American common law is the writ system. A “writ” is a written command to “do something,” it is “something short” or “a letter.” It is the basis for English common law procedure. See, Berman, Law and Revolution: The Formation of the Western Legal Tradition 445-448 (1983). The king of England delegated the power to issue royal commands to the courts, and they developed a system of writs to authorize the commencement of specific suits, known as “forms of action.” Glendon, et al., Comparative Legal Traditions 147 (1982). “The system was rigid; selection of the wrong writ resulted in dismissal.” Id. Modem mies of civil procedure attempt to eliminate the haphazard and risky technicalities of the common law by providing for only one form of action — the “civil action.” Our Rules of Civil Procedure incorporate that approach.
However, the force of tradition is strong in law. There are “general” civil causes of action where certain degrees of formality are necessary. On the other hand, there are times when the legislature creates new causes of action and requires special procedures for them. Actions, procedures and remedies which are defined by statute, are “special actions,” which sometimes use procedures which are separate and distinct from the usual “civil action.” Our repossession law is one of them.
The Navajo Nation Council intended, by its 1968 enactment of a law to regulate commercial personal property repossession, to protect consumers. It abolished self-help repossession and provided for a summary court remedy by way of replevin. Common law replevin procedures are encrusted with many techni*127calities and pitfalls,and the Navajo Nation Judicial Conference sought to simplify replevin procedure in repossession rules. They are a middle ground between self-help repossession and the time-consuming procedure of the “civil action” under the Rules of Civil Procedure.
We hold that repossession actions under 7 N.T.C. §§ 607-609 are a special action, defined by statute, which are primarily governed by the Rules for Repossession Proceedings (1982). To the extent the repossession rules do not address a specific procedural issue, it is resolved by the Rules of Civil Procedure (1989). As to any question about the validity of the repossession rules, we hold that they are a valid exercise of the rule making authority of the Courts of the Navajo Nation and disapprove any analysis to the contrary. See, Frye, Lender Recourse in Indian Country: A Navajo Case Study, 21 N.M.L.Rev. 275, 309 (1991). The repossession rules were adopted in full compliance with the rule making procedures of the time, and offer due process protections which are reasonably calculated to protect the interests of both merchants and consumers.
The district court asks for further guidance about the “time frame” for the citation method of Rule 6 of the repossession rules. Rule 6(a) requires the clerk of court to issue an order to show cause upon a repossession petition, but does not indicate the return or hearing date.
Due process requires notice and an opportunity to be heard before the taking of property. See, Yazzie v. Jumbo, 5 Nav. R. 75,76 (1986). The amount of notice, in terms of time, should be enough for the person to prepare for hearing. In re Removal of Katenay, 6 Nav. R. 81 (1989). Some court rules allow as little as three days notice before a hearing; others five; and others ten to fourteen days. The amount of time should be sufficient to allow for service of process and an opportunity to prepare for hearing. We take judicial notice that there are service of process problems in the Navajo Nation when police services are used. Therefore, a minimum of fourteen days between the issuance of the order to show cause and the hearing should be allowed, with leave for a continuance of the hearing upon application by the debtor for good cause. Judges may use their experience in a given judicial district to extend the time for a hearing, but there should be no undue delays in conducting hearings on repossession petitions. More than thirty days would be excessive.
IV
This is a case where a commercial plaintiff seeks to obtain possession of a mobile home by filing an action in a court which lies approximately 150 miles distant from the secured property and the debtors. The certified questions from the district court show that the property and the respondents are in St. Michaels Chapter, which lies near the administrative center of Window Rock where the Window Rock District Court sits. The only interest the plaintiff has in maintaining an action in Tuba City, as disclosed by the certification, is a vague assertion *128that a demand for payment was made there.
While neither our judicial code nor court rules specifically address venue (other than the general defense defined in Rule 12(b)(3) of the Rules of Civil procedure), the question of which court should hear a case given the residence of parties or location of property is governed by due process of law. Among other things, due process of law deals with fundamental fairness in court proceedings to assure that every person before the courts has a “day in court.” We approach the issue of venue using principles of Navajo common law.
People do business where they live. If someone wants to deal with someone else, he or she goes to where the person actually lives. The place for planning and discussion is a person’s residence site and hogan. The Navajo Nation Council’s intent in framing a repossession remedy is obvious. By requiring consumer consent for repossession at the time of the taking of the property, the Council intended that the discussion take place where the person resides or the property is kept. The Council offered a supplementary remedy where consent cannot be obtained by providing for court action. The Council intended that the court action lie in the judicial district where the property is located and the consumer lives.
This case is an obvious attempt to forum-shop to a collection agency’s advantage. Reservation Business Services attempted to discourage the Alberts from resisting the repossession of their mobile home by bringing an action in a distant court. The consumer who wishes to defend against repossession in a distant forum is put to the great disadvantage of having to seek counsel in a distant community. There are dangers that service of process will be delayed when sending papers to a distant court, and there are problems with the execution of judgments from distant courts.
Repossession actions must be brought in the judicial district where the personal property is normally used by the consumer or the place of residence of the consumer. The only exception is where the consumer or the property cannot be located using reasonable diligence. In that event, the proper venue is the place of residence indicated in loan papers or the last known mailing address of the debtor.
The remedy for an action brought in the wrong judicial district is governed by Rule 12(b)(3) of the Rules of Civil Procedure, namely dismissal of the action without prejudice so papers can be refiled in the proper judicial district. While our rule provides for dismissal of the action rather than transfer to the proper judicial district, we caution the court and counsel that the initial filing in the wrong district tolls the statute of limitations, and it is not a bar to a new filing.
V
The procedure for default judgments is also a rule of due process. At common law, a default judgment was a form of contempt of court. The writ stated a fixed date when the defendant was to physically appear before the court. A failure to appear was disobedience of a royal command, punishable by contempt of court *129in the form of an adverse judgment. In modem times, defendants have a deadline to “appear” by filing a response.
The procedure for defaults in repossession actions is set in Rule 55 of the Rules of Civil Procedure. Rule 55 supplements the provisions of Rule 11 of the repossession rales for noncompliance.
When granting a default judgment, the trial court must require strict adherence to the law. That includes assurances that there is personal jurisdiction over the debtor by actual notice to the debtor. That is in keeping with the command of Resolution No. CF-26-68 that personal property subject to repossession shall not be removed from the Navajo Nation “except in strict compliance” with the statute.
This cause is REMANDED to the Tuba City District Court for proceedings consistent with this opinion. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502410/ | The election of the member returned from the'town of Dan-vers was called in question, by Daniel Prince and others of that town, for the following reasons, stated in their petition : that “ the notice for the meeting, at which the election took place, was posted up not more than twenty-nine hours before the time appointed, upwards of fourteen hours of which was holy time, and six hours of the night following being necessarily spent in sleep, some of the inhabitants had only six hours notice, and others none at all, of the time appointed for the meeting; whereas, the almost invariable custom of the town has been to have the notices of meetings for such purposes posted up at the rneeting-house, two sabbath days previous to the time appointed; and, that at the time, when the few, who had notice, were assembled, a number of young people had also assembled in the galleries, for the purpose of singing, in which they were engaged, together with one of the selectmen, while the voters were carrying in their votes for a representative, notwithstanding repeated request made to the other selectmen to call the meeting to order.” The petitioners, upon *32the yerbal report of the committee to whom it was referred, had leave to withdraw their petition.1
11 J. H. 43, 49. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502411/ | The election of Josiah Puffer, returned a member from the town of Westminster, was controverted by Abner Holden and others, of that town,2 upon the following facts, stated in a certificate of the town clerk, accompanying their petition, namely, that the warrant for calling the meeting contained only one article: “ To chose a representative but that at the meeting for the election, it was made a question, whether the town would send a representative or not, and the vote being put, it was declared by Mr. Puffer, who as one of the selectmen presided at the meeting, to • be decided in the affirmative. The vote being disputed, the meeting was divided, and it was again declared in the affirmative, and the inhabitants were requetsed to bring in their votes for a representative. The vote was disputed a third time, and the meeting being again divided, and the votes counted by the moderator, he said “ they have got the vote not to send, but I have declared it to be a vote to send, and therefore bring in your votes.” The votes were then cast, and Mr. Puffer had twenty-one and two other persons one each. Mr. Puffer then declared himself chosen a representative.
The petition and other documents were referred to Messrs. Parsons, Henshaw, Sewall, Bowdoin, and Holmes, who subsequently reported, as their opinion, “ that the proceedings of the town meeting, at which the member is said to have been elected, were irregular and illegal, and that therefore his seat *33in the house ought to be vacatedwhich report, being read and debated, the question was put whether the house would agree to the same, and was determined in the negative.1
[The election of Mr. Puffer was supported by Joseph Miller and others, in a memorial, in which they alleged, that, as there was no article in the warrant, for determining whether the town would or would not be represented, no vote could be legally taken on that question. The memorialists also asserted, that “ the principle held out and acted upon, that every town has a right to vote they will not send a member to the general court, strikes at the very nerves of the constitution, and throws the people into anarchy at once.” At this period, the house rigorously exercised the power, conferred upon it by the constitution, (chap, i,, sec. iii., art. ii.) of imposing fines upon such towns as neglected to chose and return members agreeably to it sprovisions; and it was quite natural, therefore, that it should be thought unconstitutional, to pass a solemn vote not to do what the constitution seemed to require, and what a town would be liable to punishment for not doing. It may perhaps be for the reason suggested by the memorialists, that the house thought proper to reject the report of the committee. It is now settled, both by the opinion of the supreme judicial court, and by decisions of the house, that towns have a right, in their corporate capacity, to determine whether they will be represented or not.2]
Same? 13.
11 J. H. 20.
See the opinions of the court in the years 1810 — 11, and 1815 — 16. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502413/ | The house went into a committee of the whole, on the subject of the constitutionality and expediency of members of congress elect holding a seat. The committee reported, that, in their opinion, the question should not be gone into of the expediency of members elect holding a seat: and, on the question, whether members of congress elect were constitutionally disqualified, it passed in the negative.
On the question of the acceptance of this report, it passed in the affirmative, seventy-five out of one hundred and fifteen members present, being in favor of its acceptance.1 [By the eighth article of the amendments to the constitution, it is now provided, that no senator or representative shall continue to hold his office as such, after being elected a member of the congress of the United States, and accepting that trust; but the acceptance of such trust shall be taken and deemed to be a resignation of his said office.]
13 J. H. 357. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502650/ | Journal Entries: [None]
Papers in File (1827): (1) Precipe for capias; (2) capias and return.
File No. 12 of 1827. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502416/ | The committee on elections, having been directed to consider the return of a member from the town of Sullivan, reported*40, that Paul Dudley Sargeant, the member returned, lias resigned his office of judge of probate for the county of Hancock, and his resignation has been accepted, since the present session of the legislature, and they are therefore of opinion that he is entitled to take his seat.” The report was agreed to.1
2-1 J. H. 49, 84. The constitution, part ii. chap, vi., act ii., under which this decision was made, declares that no person, holding the office (among others) of judge of probate, shall, at the same time, have a seat in the senate, or house of representatives. This article is not superseded by the eighth article of amendment. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502417/ | The committee on elections, who were directed to consider the return from Ludlow,2 reported, that at the supreme judicial court, held at Northampton, in April, 1791, Elisha Fuller, of Ludlow, trader, was indicted for forging a certificate, purporting to be a certificate, signed by two of the selectmen of that town, whereby they recommended the said Fuller, as a person of sober life and conversation, and well qualified for the business of a retailer of spirituous liquors, and for offering and publishing the same, at a court of general sessions of the peace, held at Northampton, in September, 1790, as a true and genuine certificate, in order to obtain a license for retailing; and that at the supreme judicial court held at Northampton, in the month of May following, the said Fuller, upon a legal trial, was found guilty of the charges in the said indictment, and sentenced to pay a fine of thirty pounds and costs; that said Fuller is the same person, who is returned a member from the town of Ludlow ; and that the said sentence remains unreversed, and in no wise quashed or set aside, and said offence in no wise forgiven or pardoned.
*41It was therefore voted, that Elisha Fuller, the member returned from Ludlow, should be excluded from a seat.1
21 J. H. 18.
21 J. H. 57, 58. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502418/ | The election of the Rev. William Fessenden, returned a member from the town of Fryeburgh, was controverted by sundry inhabitants of that town, for the following reasons, stated and sworn to in their memorial, namely, that the selectmen gave no notice of any time and place, that they would be in session, previous to the meeting, to examine the qualifications of voters, and were not in fact in session for that purpose; and that at the election, they did not exhibit any list of voters, but suffered the votes to be brought in promiscuously, disorderly, and confusedly.1
This memorial was committed to the committee on the returns, who reported generally that they were all legal, which report was agreed to.2
*42[The first section of st. 1800, c. 74, which was in force when this case was decided, required the assessors, on or before the first of March, annually, to make out and deliver to the selectmen, a list of such inhabitants as appeared to them to be entitled to vote. This list was to be revised and corrected within ten days by the town or district, and was then to be published by the selectmen, by posting up copies thereof, in two or more public places, fourteen days before the first Monday in April. It was also made the duty of the selectmen or assessors to be in session at some convenient place immediately preceding any meeting for the choice of governor, &c., for so long a time as they should judge necessary, to receive evidence of the qualifications of persons whose names had not been entered on the list. They were also required, at the time of the publication of the list, to give public notice of the time and place of such meeting. The first section of this statute was repealed, and its provisions reenacted with some important modifications, by st. 1802, c. 116.
It will be perceived, that the st. of 1800, c. 74, made it the duty of the selectmen or assessors to hold a session, previous to a meeting for an election, to revise and correct the list; but the memorial only alleges, that the selectmen held no such session ; and for anything that appears in the case, the assessors might have acted in the matter. The other ground of objection was, that the selectmen exhibited no list of voters at the meeting; but this was not required by the statute. The facts alleged, therefore, if proved, were clearly not sufficient to invalidate the election.]
23 J. H. 18.
Same, 34. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502419/ | The election of Jonathan Ellis, returned a member from the town of Topsham, was controverted by John Rodgers and others, a committee appointed by the town for that purpose, upon the following facts, which appear from the memorial, depositions, and copies of the proceedings on file:—
The selectmen of said town made their warrant, for a town-meeting to be held therein, on the third day of May, for the transaction of certain town business, which appears to have been adjourned from a previous meeting, and also for the election of a representative. The warrant was committed to a constable, who pursued its directions in due form. A few days previous to the meeting, and after the inhabitants had been notified of it, one of the selectmen, with the assent of another, interlined an article in the warrant, previous to the article for the choice of a representative, in the following words, viz: “ To see if the town would send a representative to the general court the present year,” and also made some other slight verbal alterations. A meeting was held, agreeably to the notice, and, after choosing a moderator, the town voted not to send a representative. The other subjects contained in the warrant were then disposed of, and the meeting was declared by the moderator, as testified to, by some of the deponents, to be dissolved. Two of the collectors then came forward and had some of the taxes on their lists abated by the *44selectmen, as sworn to in some of the depositions, but by a vote of the town, as appears by a copy of the proceedings of the meeting certified by the town clerk. Several of the voters had at this time left the meeting, supposing the business to have been completed. A motion was then made, seconded, and put, to reconsider the vote not to send a representative, and was decided in the negative. One of the selectmen then called upon the voters to bring in their votes for a representative. Several of the inhabitants brought in their votes accordingly; some refused to do so; and others withdrew from the meeting. The votes were received by the selectmen, and, upon the third balloting, Jonathan Ellis was declared to be elected.
Several of the inhabitants, deeming the proceedings to be improper, petitioned the selectmen to call a town-meeting to consider the subject, and a meeting being convened accordingly, the above mentioned committee was appointed to petition against and to controvert the election as illegal.
The memorial was presented at the June session,1 and referred to Messrs. Montague, Norton, and Ely, who reported a reference of the subject to the next session.2
At the January session, the memorial was again taken up and referred to Messrs. Ely, Foster, and Upham,3 who made the following report thereon:—
That, having heard the parties and attended to the evidence, they were of opinion, that the meeting, at which Ellis was elected, was legally warned; — that the selectmen, at said meeting, received and counted the votes; — that they declared the said Ellis duly chosen; — that they made a certificate thereof to the house; — and, that, on the whole, notwithstanding some irregularities in the proceedings of the meeting, the choice was legal. The report was agreed to.4
23 J. H. 93.
Same, 101.
Same, 213.
Same, 247. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502421/ | The election of Moses Hubbard, returned a member from the town of Sheffield, and district of Mt. Washington, was controverted by the selectmen of Sheffield,1 who stated in their petition, that since the election, they had discovered, that at least three persons voted therein,2 who were not qualified, and that at the election, the whole number of votes given in was two hundred and seventy-one, of which Moses Hubbard had one hundred and thirty-seven, John W. Hurlbert, one hundred and twenty-seven, and seven were scattering. By a memorandum on the back of the petition, it appears that the election was conceded to be illegal by the member returned, and the committee made a report accordingly, which was agreed to.3
24 J. H. 31.
The illegal votes must all have been given for the sitting member, or the election would not have been affected. It does not appear by the papers in the case, for whom these votes were given.
24 J. H. 55. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502625/ | The election of Martin Knight, the member returned from the town of Hull, was controverted by lehabod Spooner and two others, on the ground, that the election was obtained by said Knight, who was one of the selectmen of the town, by illegally rejecting the vote of said Spooner.
The committee on elections, to whom the petition was referred, reported that the petitioners, at their own request, should have leave to withdraw their petition, and this report was agreed to.2
Same, 455. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502422/ | A committee was appointed, at the June session, to inquire whether any member then held a commission under the president of the United States, and if so, whether it was incompatible with his right to a seat.1
The committee reported, that Jonathan L. Austin, a member from the town of Cambridge, held the office of commissioner of bankrupts, under the United States, which is an office held at the pleasure of the president, and that having examined the constitution of this commonwealth, they are of opinion, that the said office is not incompatible with that of a representative.
The question upon the adoption of this report was taken by yeas and nays and decided in the affirmative, 82 yeas, and 15 nays.2
24 J. H. 95.
Same, 130, 131. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502423/ | The election of David Perry, Jr., returned a member from Rehoboth, was called in question by Robert Dagget and others, for the following reasons, stated in their petition: — •
1, That the selectmen, at the meeting for the election, received votes from persons under the age of twenty-one;
2, That the presiding selectman took votes out of the box, and in lieu thereof, put into the box votes for a different candidate, and also, while counting the votes, picked up votes from the seat and had them counted; and,
3, That after the box was turned, the votes sorted and counted, and the numbers ascertained, the selectmen suspended a declaration thereof, and received and counted other votes.
This petition was presented at the June session, and referred to the committee on elections,1 who reported a postponement of the consideration thereof, to the third Wednesday of the session, and an order appointing Samuel Morey, Esq., to take depositions, in the mean time, at the request of either party.2 *49The report was agreed to, and several depositions were taken, in pursuance of the order, tending to substantiate the charges contained in the petition.
The committee subsequently reported a reference of the subject to the next session, which was agreed to.1
26 J. H. 20.
Same, 29.
26 J. H. 92. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502424/ | The election of Gideon Foster, Samuel Page, and Nathan Felton, returned as members from the town of Danvers, was controverted by Aaron Putnam and others, on the ground, that the town did not contain a sufficient number of ratable polls, to entitle it to send three representatives.2
The committee on elections reported the following statement of facts3 in this case :—
1. It appears, that, at the time of the election of the sitting members, the town of Danvers assessed a poll tax on five hundred and seventy-eight polls;
2. It appears, by a certificate from the assessors of Danvers, that, in addition to the polls rated as above, seventy-three other persons were abated of their poll tax, on account of old age, infirmity, &e.; and
3. It appears, by the resolution, which passed the legislature, at the time of the last valuation, fixing the number of ratable polls of the several towns, that the town of Danvers was fixed at six hundred and three.
The committee, upon this statement of facts, requested the house to determine the following questions resulting therefrom, as well for the general government of the committee in other cases, as to determine the present case:—
*501. Is the constitutional number of polls, on which any town is entitled to calculate its right of representation, the number of polls actually taxed therein at the time of the election ?
2. Or is the number abated to constitute a part of the constitutional number of ratable polls ?
3. Is the number of polls, fixed against each town, at the time of a general valuation, and by which it is uniformly taxed to the commonwealth, the fixed standard of its representation during the same period ?
A time was assigned for the consideration of this report, and after deliberation thcvnipon, it was
“ Resolved, That d i rhe sense of the house, that the extent of the right of rt presentation, as given to the towns and districts of the commonwealth, by the constitution thereof, is to be regulated by the number of ratable polls, actually existing in the towns and districts to be represented, at the time of any election; and
Resolved, That, in the number of ratable polls, mentioned in the constitution, as a role, by which to determine the extent of the right of representation, was intended to be included the whole number of free male inhabitants of the age of sixteen years and upwards, who are not by law exempted from taxation.”
The town of Danvers, according to this decision, containing six hundred and fifty-one ratable polls, the election therein was confirmed.1
Same, 20.
Same, 29.
26 J. H. 31, 33. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502425/ | Tub election of William King, returned a member from the town of Bath, was controverted by David Trufant and others, on the following grounds, stated in their petition1:—
1. That at the meeting for the choice of a representative, after the selectmen had received and counted the votes, they declared the whole number to be one hundred and fifty-one, seventy-six of which were necessary to a choice, and that William King had that number and was chosen, whereas there were seventy-five votes given in for Samuel Davis, and one for William Webb; and
2. That the selectmen, instead of sorting and counting the votes openly, in the presence of the meeting, as required by the statute of 1795, c. 55. s. 1., retired by themselves to sort and count the same.
The petition was accompanied by depositions, from which it appeared, that the right of one person, who voted in the election, was disputed, and who, upon a subsequent inspection of the tax list, was found not to be taxed for any property; that there was no list of voters produced at the meeting; and that the selectmen, after receiving the votes, retired into the pulpit of the meeting-house, in which the meeting was held, and there, together with the town clerk, privately sorted and counted them: but it did not appear that the votes were given in as stated in the first allegation in the remonstrance.
It appeared, on the other hand, fay the affidavits of the selectmen, that the votes were as declared by them at the rneet-*52ing, and by the affidavit of the town clerk, who counted the votes for Mr. King, that he had seventy-six. The selectmen further testified, that they neither saw nor knew of any votes for any other person or persons, than Samuel Davis and William King.
The committee on elections reported, that the election was void:1 but on the question, whether their report should be agreed to, it was determined in the negative.2
26 J. H. 21.
26 J. H. 40.
Same, 42. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502426/ | The election of Peletiah Fisher, returned a member from the town of Franklin, was controverted by Samuel Metcalf and others. The facts in the case appear from the following statement reported by the committee on elections : — ■
“ That the town-meeting in that town, for the choice of a representative for the present year, had been legally and regularly warned, and was holden on the sixth clay of May last.
That in addition to the warning for choosing a representative, a number of articles, relating to town affairs, were inserted in the same warrant; that it had been an invariable usage in that town, since its first incorporation, so to do; and that in this instance, there was one inserted among those relating to town affairs, for giving instructions to their representatives.
That the hour appointed in the warrant, for choosing a representative, was eleven of the clock in the forenoon.
'That for the purpose of considering and acting upon the other articles contained in the warrant, the people were, agreeably thereto, notified to convene, and actually did convene, at nine of the dock in the forenoon of the same day.
*53That being so convened, they attended to the first article contained in the warrant, which was to choose a moderator, and having done this, they proceeded to consider some of the other articles relating to town affairs.
That when the hour of eleven had arrived, without any formality of adjourning or postponing the town business, the moderator retired, and the selectmen took his place and presided, and having read over a list of voters for representative, called for the votes to be brought in; upon which a motion was made not to choose one, and the question being taken passed in the affirmative, 72 to 67; after which it was observed, that ‘they had nothing further to do.’ Then the selectmen, with as little formality, as the moderator had done before, left their seats, and he resumed his station. The meeting was then adjourned for an hour. When the hour had elapsed and the people had reassembled, they proceeded to act on those articles contained in the warrant, which had not been acted upon before.
That in the midst of this business, a motion was made to reconsider the vote, that had been passed in the forenoon, not to choose a representative, and then to choose one. Upon which the moderator instantly quitting his station, the selectmen again presided, and the question being taken, passed in the affirmative, 82 appearing in favor of it. A vote was then passed to postpone the choice to the Thursday of the then next week. After this the moderator again took his stand, and there being no article remaining not acted upon, among those relating to town affairs, excepting the one to give instructions to the representative, the meeting was adjourned to that time. At which time, being the 16th day of May, and within the time provided by the constitution, the people again assembled, and having voted to adjourn the consideration of the only remaining article, contained in the warrant, among those relating to town affairs, which was to give instructions to their representative, for the space of one hour, the moderator left his place, and the selectmen presided and called the attention of the voters to the article for choosing a representative. *54A motion was then made to reconsider the last vote, passed on that subject, and adhere to the first, which was decided by dividing the house, 62 being in favor of it, and 92 against it. The selectmen then called for the votes for a representative, which, after several trials, being sorted and counted, produced the final result, as appears by the record herewith exhibited, that 67 votes making a choice, Peletiah Fisher, Esq., having 83, was declared to be chosen. After which, the moderator again took his stand, and the remaining article in the warrant was acted upon, which was to give their representative such instructions as the town should think proper.
That when the vote passed, not to send a representative, there were 139 voters present, who acted on that question. At the meeting when the choice was finally made, the vote being again put, whether they would send a representative, or not, there were 154 voters present, who acted on the question.
That two or three legal voters for a representative absented themselves from the last meeting, who were present at the first, not because they were ignorant of the time to which the meeting stood adjourned, but because, as they said, it was their opinion that the proceedings were illegal.”
On these facts, the committee gave no opinion, but submitted the question, whether the election of Peletiah Fisher was valid or not. There is no entry on the journal of any further proceedings; but a memorandum, on the back of the report, states, that the subject was referred from the May to the January session, and a time assigned for its consideration. Mr. Fisher retained his seat. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502427/ | The election of Thomas Keeler, returned a member from the town of Sandford and district of Alfred, was objected to by John Sayward and others, who, in their memorial,1 alleged :
1. That Keeler, with a view to influence and corrupt the electors, did agree and contract with one Ebenezer Sayward, an innholder in Alfred, to furnish them with refreshments of victuals and drink, on the day of election, at his expense ; and that refreshment was accordingly furnished them, by Sayward, and Keeler paid the bill;
2. That Keeler also made a similar agreement with one Paul Webber, and paid him for provisions furnished the electors and their horses, on the day of election:
3. That the meeting was tumultuous and disorderly, and conducted with an unusual and unpardonable degree of spirit and acrimony, probably from the cause above mentioned;
4. Tliat after the election, Keeler gave a public invitation to all the electors, to go to any or all of the public houses or *56stores in Alfred, or to his own house in Sandford, to receive such refreshments as they should want, at his expense, and that for refreshment so furnished, (except what was furnished at Keelers own house and store) Keeler and his colleague paid more than fifty dollars;
5. That, on the evening of the election, there was every appearance of riot and drunkenness, at Keeler’s store, among the electors, and fighting and quarrelling were prevalent among them; and
6. That Keeler was a deputy postmaster and had no assistant in that office.1
This memorial was accompanied by sundry depositions, from which it appeared, that Keeler and his colleague had treated numbers of the voters, at considerable expense, both before and after the election.
The committee on elections reported, that having attended to the memorial, and to the depositions taken by the petitioners, to prove the charges therein contained, they were unanimously of opinion, that Thomas Keeler, the sitting member, was duly elected, and that nothing appears to prevent him from, holding Ms seat. The report was agreed to.2
27 J. H. 31.
See the eighth article of amendment to the constitution.
27 J. H. 66. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502428/ | The election of Charles Durfee, returned a member from the town of Troy, was controverted by Nathan Bowen and others, *57as illegal, and his seat claimed for Jonathan Brownell, who was alleged to have been duly elected a representative for the said town1 and it was ordered, that the two members, returned from Troy, be enjoined neither to vote nor debate, until the legality of their elections should be determined.2
From the memorial and depositions subsequently taken by both parties,3 the following appear to be the facts in the case ;
The town of Troy, until within a few years, had been a part of the town of Freetown, in which it was the custom to choose town officers on the first Monday of April; and the town of Troy, since its incorporation, had continued in the same practice, until the present year, when a number of their inhabitants petitioned the selectmen to call a meeting for the choice of town officers in the month of March, The selectmen thereupon issued a warrant for a town-meeting on the eighth of March, not for the purpose of choosing town officers, but to consider the expediency of changing the time of choosing them from April to March. A meeting was held accordingly, on the eighth of March, at which the disorder and confusion were so great, that, after two trials for the choice of moderator, it was found impracticable to organize the meeting, and nothing was done, except, that by a general consent, it was agreed, that the selectmen should call a meeting on the seventeenth of March, for the same purpose. The selectmen issued a warrant for a meeting at that time, and delivered the same to a constable for service. Several of the inhabitants who had signed the petition for the first meeting in March, then petitioned Charles Durfee, a justice of the peace, to issue his warrant, for a meeting of the inhabitants, to be held at the same time and place appointed in the warrant issued by the selectmen, alleging, as the ground of their request, that the selectmen had unreasonably refused to call a meeting on the eighth of March, agreeably to their petition. Durfee issued his warrant accordingly, and directed and delivered it to the same constable to whom the selectmen had delivered theirs. On the seventeenth of March, the selectmen attended, at the time and place *58appointed for their meeting, and demanded a return of the warrant issued by them, of the constable, who refused to return the same. Durfee also attended, and in pursuance of the warrant issued by him, which had been returned by the constable, proceeded to open and organize the meeting. A moderator having been chosen, the meeting then proceeded to the choice of officers. The selectmen, whose warrant had not been returned, then issued another warrant, for a meeting on the first of April, for the choice of town officers, and a méeting was held accordingly, at which those of the inhabi-tárits¿ who had previously acted under Durfee’s warrant, cooperated in the choice of moderator, but being disappointed in the result, they then withdrew. At this meeting, town officers were chosen. The selectmen, chosen at the meeting held in pursuance of Durfee’s warrant, called a meeting for the choice of a representative, at which meeting, Charles Durfee was elected. The selectmen, chosen at the meeting called by the old selectmen, on the first of April, also called a meeting for the choice of a representative, at which Jonathan Brownell was elected.
The committee on elections reported,1 that, having taken into consideration the petition aforesaid, and also the circumstance, that two members are returned from the town of Troy, claiming seats under certificates from two real or pretended sets of selectmen, they were of opinion that Charles Durfee was not duly elected, and ought not to have a seat, and that Jonathan Brownell was duly elected, and ought to take his seat accordingly. The report was agreed to.
27 J. H. 42.
Same, 45.
Same, 78.
27 J. H. 136. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502429/ | The election of Jonathan Wetherbee, returned a member from the town of Harvard, which was entitled to send two members, was controverted by Henry Bromfield and others, on the ground, that, at a meeting held in said town for the purpose of electing a person to represent the same in the general court, Isaiah Parker was elected, and then the inhabitants voted to choose another representative, and elected the said Wetherbee; whereas “ there was no article in the warrant which authorized the said inhabitants to elect more than one representative.”1
The committee on elections, to whom the case was referred, do not appear to have made any report upon it. [Their silence, and the acquiescence of the house, afford a strong presumption, that the objection was regarded as groundless.]
27 J. H. 43. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502430/ | ’The election of John Davis, returned a member from the town of Tisbury, was controverted by James Athearn and others, on the ground, among others, that the warrant for calling the meeting, and the notification thereof, by the constable) did not mention any hour of the day, on which the meeting Was to be held.1
By a deposition of the constable, it appeared, that one of the selectmen altered the warrant, by inserting the hour of the day, and directed him “ to make out a new notification or alter the old one, which he did, two days before the meeting was held.”
The committee on elections reported, that Mr. Davis was constitutionally elected, and entitled to his seat, “ the allegations against him not being supported.” The report was agreed to.2
28 J. H. 112.
Same, 153. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502431/ | A communication was received from the governor, inclosing a letter to him from the solicitor general, stating, that John *61Waite, a member from Falmouth, in the county of Cumberland, had been convicted of forgery. The communication having been read, Mr. Waite, the member implicated, presented a memorial, praying for a new trial upon the indictment, which stood continued for judgment, and also a memorial in favor of his character, signed by a great number of persons, both of which were committed to the committee on new trials. The communication from the solicitor general was referred to a special committee; and it was ordered, that Mr, Waite be suspended from exercising the duties of a member, until the house shall have taken further order upon the report of the committee.1
The committee on new trials reported a resolve on the memorial of Mr. Waite, granting him a new hearing on the indictment, which passed both branches, and was sent to the governor, but was subsequently returned by Mm to the house, at their request, and referred to a special committee, who do not appear to have made any report upon it.
The committee on the communication from the solicitor general do not appear to have made any report.
This order was passed on the motion of Mr., afterwards Judge, Story, then a member from Salem, | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502432/ | The election of Julia Kellogg, returned a member from the town of Shelburne, was controverted by Peter Holloway and others, on the ground, that he did not possess, and had not within a year, next preceding his election, been in possession of, a freehold estate, within the said town of Shelburne, of the value of one hundred pounds, or any ratable estate, within the said town, to that value.
On behalf of Mr. Kellogg, the selectmen and assessors of Shelburne certified, that “ he was, and for years had been, in possession of twenty-five acres of land, with a dwelling-house and other buildings thereon, lying in the centre of said town, for which lie was taxed in the last year’s assessment $6.43; valuation for 1807, $14.35, for 1808, $9.16, which was under mortgage, as a security for 900 dollars, 300 of which had been paid, leaving 600 due, which was not one-half the value of the place; and also, that he was the la wful owner of the one-half of a dwelling-house, merchant’s shop, and one acre and a quarter of land, lying in the centre of the town, which a few years previous was appraised at $850.” One of the assessors also certified, that Mr. Kellogg stood on the valution for 1808, real estate, $8.65, personal estate, $9.51.
On this memorial and evidence, the committee reported, that they were decidedly of opinion, that there was nothing contained in the memorial sufficient to invalidate the election. The report was agreed to. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502433/ | The election of Jonas Whitney and Abel Wood, members returned from Westminster, was controverted by Benjamin Marshall and others, on the ground, that the town did not contain the requisite number of ratable polls to entitle it to two representatives.1
The petitioners alleged, that the number of rated polls in said town in the year 1807 was 208, and, that as the assessors had not made out their list of rated polls for the year 1808, the petitioners had, “ according to their best skill and judgment, made out an accurate list of all the male inhabitants of sixteen years of age and upwards, including paupers, persons non compos, and superannuated, belonging to, residing in, and being inhabitants of, the said town of Westminster, on the first day of May, 1808, the whole of which amounted only to the number of 367.
On the other hand, the assessors of Westminster certified, that, from a careful examination of the number of ratable polls therein, on the first day of May, 1808, according to the best information they could obtain on the subject, the said town then contained three hundred and seventy-five ratable polls. This certificate was corroborated by the selectmen.
At the June session, the committee on elections reported a reference of inis case to the next session, at which time, they reported that no testimony had been produced before them to invalidate the choice, or the right of the town to send two representatives, and therefore that the members returned were entitled to hold their seats.2
29 J. H. 19.
Same, 168. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502627/ | Journal Entries
1. Defendant ruled into custody.....Journal, infra, *p. 146
Papers in File
[None] | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502628/ | Journal Entries
1. Rule for recognizance; plea; issue .... Journal, infra, *p. 149
2. Jurors; verdict; discharge..........“ 160
Papers in File
1. Indictment...........
a. Capias and return......... | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502434/ | A committee having been appointed to consider the meaning of the words “ ratable polls,” as used in the constitution, in reference to the number of representatives, to which towns are entitled, it was, upon their report (March 3, 1809),
Resolved, As the sense of the house, that ill case the election of any member of the house of representatives shall be controverted on the ground, that any town, or town and district, has chosen and returned a greater number of representatives than such town, ox town and district, were entitled by the constitution to elect, a certificate of the assessors, of the number of ratable polls within such town, or town and. district, or the [names of persons borne on the] tax bills of the year next preceding such election, whose taxes, at the time of said election, shall be wholly unabated, shall be considered prima facie evidence by which to decide such election; subject, however, to be contradicted by such other evidence as may be produced by either party. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502435/ | The election of Jonathan Smith, Jr., Jesse Stebbins, Charles Ball, and Jesse Mclntier, members returned from the town of West Springfield, was controverted by Jonathan Parsons and others, on the ground, that the town did not contain a suffi*65cient number of ratable polls to entitle it to four representatives.1
The petition in this ease was presented at the first session, and referred to the committee on elections, who reported a reference thereof to the newt session, in order to give the parties an opportunity to produce their testimony.2
At the second session, sundry depositions were received3 and referred to the committee, who thereupon reported4 the following statement of facts, for the consideration of the house, namely:—
It appeared to the committee, from the tax bills of the assessors of the town of West Springfield, dated the twenty-ninih day of April last, that there were six hundred and forty-four rated polls; and that from an additional list, certified by the assessors aforesaid, there were two hundred and twenty ratable polls on the thirteenth day of May last, not rated in said town. These two numbers amount to eight hundred and sixty-four, which is more than sufficient to entitle the town of West Springfield to four representatives. But the committee, from the evidence submitted to them, are of opinion, that forty-one names are improperly borne on the tax bills and list, which, deducted from the whole number of eight hundred and sixty-four, leave only eight hundred and twenty-three, a number insufficient by two to entitle the town of West Springfield to four representatives. At the present session, the sitting members produced a certificate from the selectmen and assessors of West Springfield, containing seven additional names, which they do not, however, certify to be ratable polls. Among the eight hundred and twenty-three polls allowed by the committee to be counted, there are four town paupers, which it is considered to have been the practice of the government to allow, in the enumeration of ratable polls. The committee further report, that the sitting members allege that three names, erased from the list, as twice counted, should have been permitted to remain there; because, although they are really twice borne on the fist, yet, in the family of each of those per*66sons, there is an additional poll, not borne on either list. Under these circumstances the committee respectfully submit the question to the decision of the house.”
This report being taken into consideration, the case was again referred to the next session,1 and commissioners appointed to take depositions in the mean time.2
At the third session, additional depositions were received and referred to the committee,3 who, upon consideration thereof, made the following report, namely :—
“ From the testimony produced, both for and against the sitting members from West Springfield, the committee have added, to the list of ratable polls of said town, twelve names, making the list of rated and ratable polls, in the town, amount to eight hundred and thirty-five. But on the list of two hundred and twenty polls, stated by the selectmen of the town to be ratable, although not actually rated, the committee have enumerated thirty-one persons, of whose liability to. be rated in said town, the committee entertain considerable doubts, and two persons under sixteen years of age. The thirty-one persons referred to were such as either had a house and residence in a neighboring town, and came in, during the working season, to let themselves to labor in West Springfield, for a term of time, generally from one to seven or eight months, or were transient persons, having no fixed residence. If the house should be of opinion, that such persons, although not taxed in West Springfield, could be counted as ratable polls for the purpose of increasing the representation of said town, then the committee are of opinion that the sitting members should hold their seat; otherwise, the committee do report, that the sitting members are not duly elected, and therefore not entitled to hold their seats.”4
The report was re-committed for the purpose of a further statement of facts,5 and the committee again made report:—
“ That although there have been, in their opinion, considerable irregularities in the conducting of the election, and although it is extremely doubtful whether the town of West *67Springfield is constitutionally entitled to send four representatives, yet, as there appears to have been much difference of opinion in the construction of the term‘ratable’in the constitution, and great diversity of practice resulting from it, throughout this commonwealth, the committee are of opinion, that the sitting members be permitted to hold their seats,” The report was agreed to.1
29 J. H. 20.
Same, 63.
Same, 127.
Same, 168.
29 J. H. 168.
Same, 174.
Same, 188.
Same, 237.
Same, 244.
29 J. H. 255. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502439/ | The election of the two members chosen in Freetown, was controverted,1 on the ground, that the town did not contain a sufficient number of ratable polls to entitle it to send two representatives ; and, by an affidavit of the assessors, it appeared, that the number of polls actually taxed therein, in the year 1808, was two hundred and ninety-nine.
At the June session, the committee on elections reported2 a reference of the subject to the next session, which was agreed to, and towards the close of that session they again reported, that there was but one member returned from the town of Freetown, and, inasmuch as no evidence had been produced to show that the town did not contain a sufficient number of ratable polls to entitle it to send two members, it was unnecessary to act further on the subject. The report was agreed to.3
30 J. H. 40.
Same, 123.
Same, 286. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502440/ | The election of Samuel Davis, William Webb, and Jonathan Hyde, the members returned from the town of Bath, and who were elected by a general ticket, at one balloting, was controverted by Joshua Wingate, Jr., and others, on the ground, that the town of Bath, on the first day of May, 1809, contained no more than five hundred and sixty-four ratable polls, and therefore, was constitutionally entitled to elect but two representatives for that year.1
The committee on elections, to whom the memorial of the said Wingate and others was referred, at the June session, reported a reference of the subject, to the next session;2 and ordered that the members from Bath should lay before them, at that time, a list of those persons in said town, whom they alleged to be ratable polls; that the said members should also furnish the petitioners with a copy thereof; and that the petB tioners should, within a reasonable time, furnish the said: members with a list of such persons thereon, as they alleged not to be ratable polls; in order, that the committee might determine, at the next session, upon such evidence, as the parties might then produce, in reference to the polls objected to, whether the town of Bath was entitled to three representatives or not.
The reference was agreed to by the house, and in pursuance of the order of the committee, the list and copy required were furnished by the members, and the objectionable names given by the petitioners.
At the January session, depositions were produced before *74the committee, to prove who, on the disputed list, were or were not ratable polls, and the committee, upon a consideration thereof, reported, that the town of Bath contained a sufficient number of ratable polls to entitle it to send three representatives. The report was agreed to.1
30 J. H. 286.
30 J. H. 29.
Same, 123. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502629/ | Journal Entries
1. Recognizance..........Journal, infra, *p. 149
Papers in File
[None] | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502631/ | Journal Entries
1. Appearance . .......Journal, infra, *p. 343
Papers in File
[None] | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502954/ | OPINION
Opinion delivered by
Austin, Associate Justice.
I. Facts
The Appellant, Tarah Platero (“mother”), and the Appellee, Amos Mike (“father”), have been disputing custody of their daughters, C.L.M. and A.M., since at least May of 1992. Until June of 1994, the mother had custody of both children and the father had monthly visitation.
On June 22, 1994, the Canoncito Family Court found the mother in indirect civil contempt for not complying with visitation as provided in its orders of November 23 and December 20, 1993.
The November 23, 1993 order provided for the father to have visits once a month with A.M. and, to facilitate visitation, required that A.M. be enrolled in Canoncito Tribal School for the spring 1994 semester; C.L.M. was not required to participate in any visits. The December 1993 order arose from a show cause hearing in which the mother was found in contempt and fined $300.00 for not allowing visitation on November 5, 1993, as ordered two days earlier on November 3, 1993. The December 1993 order required future compliance with the order of November 23, 1993, which contained a visitation schedule and provided for the mother’s immediate arrest and incarceration in the event of her failure to comply. In addition, the court gave notice that if the mother continued to deny visitation, the court “may have no alternative but to place the child in [father’s] custody, if [mother’s] continued conduct is found to be detrimental to the child’s welfare.”
*131At the June 22, 1994 show cause hearing it was adduced that visitation took place in February as scheduled; the March visit did not occur because the mother had car trouble and was delayed in returning A.M. from school in Albuquerque; the father chose not to visit in April; the May visit was postponed for one week at A.M.’s request; and the mother did not emolí A.M. in Canoncito Tribal School for the spring semester.
The family court found explanations provided by the mother insufficient to quash the motion for contempt. The court placed the mother in custody until she apologized to the father, attended three parenting counseling sessions, and provided proof of attendance. The court also found that the mother’s continued refusal to allow visitation and her belligerence in not complying with court orders had a detrimental effect on the children. Thus, the court gave the father custody of both children. Finally, the court awarded the father $600.00 as attorney’s fees.
II. Issues
This Court must determine first, whether the family court’s finding of contempt was an abuse of discretion and second, whether the sanctions imposed were justified.
III. Discussion
A. Contempt
Participants in litigation jeopardize the judicial process when they refuse to abide by its rules. The contempt power provides courts with the authority to deal effectively with this problem and, thus, is essential to the due administration of justice. For Navajo judicial process, this power is grounded in 7 N.T.C. § 255, which gives trial courts the power to “issue any writs or orders necessary and proper to the complete exercise of [the court’s] jurisdiction.” Paralleling this authority, the Court recognizes that courts have inherent power to enforce court orders through contempt proceedings. In re Contempt of: Sells, 5 Nav. R. 37 (1985).
Civil contempt proceedings are used to compel obedience to court orders and to preserve and enforce the rights of litigants. In re Contempt of Mann, 5 Nav. R. 125, 127 (1987). Contempt is indirect when it does not occur in the presence of the court. In re Summary Contempt of Tuchawena, 2 Nav. R. 85 (1979). For violating court-ordered visitation, the mother was held in indirect civil contempt.
In determining what constitutes contempt and in formulating a remedy, a trial court has much discretion. Tuchawena, 2 Nav. R. at 89. A court’s determination regarding contempt will only be reviewed for clear abuse of discretion or conduct which is so unreasonable as to be capricious and arbitrary. Id. We discussed the meaning of judicial discretion in Sells:
*132The use of the word “discretion” as applied to judges or courts means discretion to act within certain boundaries. For judicial discretion those boundaries are the rules and principles of law as applied to the facts of a particular case.
In re Contempt of Sells, 5 Nav. R. at 38 (citations omitted). Thus, in reviewing discretion we examine whether the judge or court acted within the rules, principles, and customs properly applied to the facts of the case.
The mother argues that the evidence does not support the court’s conclusions that her refusal to comply with court-ordered visitation was knowing, steadfast, continued, and belligerent. However, her own testimony proves that she was aware of the contents of the visitation orders and she disobeyed them. Failure to obey a court order is contempt. John v. Herrick, 5 Nav. R. 129, 130 (1987). There is no requirement that a court establish the exact nature of a party’s non-compliance in contempt proceedings. The determination is discretionary. Regardless of the possible misinterpretation of other aspects of her conduct, there is clear evidence that the mother was aware of and violated the court orders. The family court’s finding of indirect civil contempt rests on firm ground, and thus is not an abuse of discretion. We affirm the finding of contempt.
B. Sanctions
If sanctions imposed under the contempt power do not conform with the applicable rules, the authority of the courts will be jeopardized. In In re Contempt of Mann, we said:
The power of Navajo courts to punish for contempt must be exercised within the bounds of due process embodied in the Indian Civil Rights Act, 25 U.S.C. § 1302(8) (1968), and the Navajo Bill of Rights, 1 N.T.C. § 8 (1967) (current version at 1 N.T.C. § 3 (1986)).
5 Nav. R. at 126. Evaluating the process accorded in the case before the Court, there is no question that the mother had notice of the sanctions proposed. The family court, however, did not follow required procedure when it imposed these sanctions.
1. Change of Custody
When considering a change of custody, a court’s responsibility is not limited to ensuring notice and the opportunity to be heard. The settled law is as follows:
[Procedure requires that a motion for modification be filed with proper service upon the opposing party; that the motion set forth facts showing a change of circumstances and state reasons why a modification of custody is in the best interests of the child; that a hearing be had; that the moving party show a substantial change in circumstances since the last custody order; and that the court find that the change in custody is in the best interests of the child.
*133Pavenyouma v. Goldtooth, 5 Nav. R. 17, 18 (1984) citing Lente v. Notah, 3 Nav. R. 72 (1982).
In the case at issue, no motion for modification was ever filed. The father’s motion for order to show cause contains one sentence requesting that the court place custody of the children with the father. Even if we were to consider this lone sentence as a motion for modification, there are no facts alleged in it to show substantial change in circumstances, nor are there any statements indicating that modification is in the children’s best interest.
The burden of proof in a custody modification proceeding is on the party asserting that change of custody is necessary and in the best interest of the child. Barber v. Barber, 5 Nav. R. 9, 11 (1984). No one has carried this burden here.
A court considering modification of a custody order has a special responsibility to act as parent of the child and to act in the best interest of the child. Id. at 12. Failure to make findings of fact as to whether a change of custody is in the best interest of the child is reversible error. Id. The family court did conduct a hearing, but its focus was on contempt, not on custody modification. What findings were made only amount to bald assertions that the mother’s response to the court orders had a detrimental effect on the children. No findings of best interest were made. Under these circumstances, we have no choice but to reverse the court’s ruling on change of custody. Id., see also Help v. Silvers, 4 Nav. R. 46, 47 (1983).
As the mother notes, there is an additional problem with the family court’s decision to transfer custody of both children to the father. In its November 23, 1993 order, the court recognized C.L.M.’s preference for her mother and accorded C.L.M. the right to decide whether or not she would visit her father. The failure to consider her interest separately when modifying custody further demonstrates that the court did not evaluate the children’s best interests.
The family court’s failure to follow proper procedure in modifying custody is a grave error given the potential for harm to the children. Nor was it proper to entertain the issue of custody modification in the context of a contempt hearing. To protect the unique values and interests at stake in each proceeding, contempt and custody modification must be heard separately.
2. Incarceration
A court selecting contempt sanctions must use the least possible power adequate to the end proposed. See, e.g., Spallone v. United States, 493 U.S. 265, 276 (1990). Having already fined the mother $300.00 for violating the November 23, 1993 order, the family court was justified in concluding that more severe sanctions were necessary for her next violation. How much more severe should be the sanctions is the question.
Sanctions must relate directly to findings of fact. Help v. Silvers, 4 Nav. R. at 47. While there is some relation between the finding that the mother did not comply with the visitation schedule and the reqirement that the mother apologize to the father, it is not all evident that any finding called for requiring the mother to *134attend three parenting sessions before she could be released from incarceration. A correlation might exist between the conduct found contemptuous and a lack of parenting skill. However, there are no findings that the mother’s parenting skills are deficient to support the order to attend parenting sessions, nor is there any basis for the apparent presumption that general parenting classes would address conflict between parents over custody and visitation. Thus, the family court is affirmed on incarceration and release conditioned on apology, but reversed on attendance at three parenting sessions and proof thereof.
3. Attorney’s Fees
Navajo Nation courts have the authority to award attorney’s fees in special circumstances. Hall v. Arthur, 3 Nav. R. 35, 41 (1980). Contempt proceedings present a special set of circumstances. Id., see also John v. Herrick, 5 Nav. R. at 131-32. Thus, an award of attorney’s fees was within the court’s authority. When determining the amount, a court is to “determine, on its own, what fair attorney’s fees would be, without regard to ... the amount of such fees.” Hall v. Arthur, 3 Nav. R. at 41. Given the nature of this evaluation, the family court’s decision should be reviewed for abuse of discretion. The absence of any findings on this matter makes it difficult for the Court to do so. We, thus, will take judicial notice that $600.00 for seven hours of time expended by the father’s counsel is fair compensation. The award and amount of attorney’s fees are affirmed.
In accordance with Rule 18, Navajo Rules of Civil Appellate Procedure, the father has requested $1,497.24 as attorney’s fees on appeal. An award of attorney’s fees on appeal is within the discretion of this Court. Because the mother’s appeal was not without merit, we will grant two-thirds of that request or $998.16. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502441/ | The election of George Walker, one of the two members returned from the town of Dighton, was controverted by-Joseph Atwood and others, on the ground, that the number of ratable polls in said town did not entitle it to two representatives.3
The petition was accompanied by an affidavit of James Briggs, one of the assessors of Dighton, for the year 1808, from which it appeared, that the number of polls, rated on the tax bills for that year, was two hundred and ninety-eight, and that in the same tax bills, forty-three persons were rated for their estates only, their polls being excused on account of age and infirmity: that the aggregate of these'two numbers, three hundred and forty-one, was considered by the assessors, as including all the male inhabitants of the town of Dighton, that were ratable on the first day of May, 1808, either for their polls or property: and that in his opinion, the number of ratable polls in 1809, differed but little from that of the year preceding.
The petitioners also furnished an affidavit of James Good-ing, 2d., in which he testified, that on the 23d of May, 1809, *75he applied to one of the assessors of said town, who was also an assessor the last year, to certify the number of polls therein, as set down in the last year’s valuation, which the said assessors refused to do; but that upon an inspection thereof, he found the number to be 298.
The committee on elections directed the selectmen of Digh-ton, to furnish the petitioners with a list of the male inhabitants of the said town, who were twenty-one years of age and upwards, which they neglected to do; and, thereupon, the committee, on the evidence above stated, reported, that it did not appear, that the town of Dighton contained a sufficient number of ratable polls to entitle it to send two representatives, and therefore that George Walker, the second member chosen, was not entitled to a seat in the house. The report was agreed to.1
30 J. H. 38, 63.
30 J. H. 286. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502444/ | The election of Ebenezer Hobbs, returned a member from the town of Weston, was controverted by Joseph Russell and others, on the ground, that two votes were illegally rejected, and two illegally received, at the said election.
The committee on elections reported the following statement of facts in this case: — •
At the election in question, eighty-one votes were given for Ebenezer Hobbs, and eighty for Isaac Fisk. Two votes were given in by Alpheus Bigelow and Woodbury Hill, (who were not on the list of voters and had been refused by the selectmen) for Isaac Fisk, and were by the direction of the selectmen, taken from the box by Mr. Hobbs, who, as one of the selectmen, presided at the meeting. Alpheus Bigelow, whose father resides in Weston, left that town several years since, and lived nine months in Charlestown, from whence he removed to Boston, where he lived four months, and during his residence in one or the other of these places, he attained to the age of twenty-one. From Boston, he removed to Lynn, where he continued five months, as an instructor in the Lynn academy, and from Lynn he immediately entered Harvard College, where he still continues. He has passed his vacations principally in Cambridge, writing in some of the public offices, and acting as an organist, and has occasionally been in Weston, at his father’s, where his washing and mending are done. Woodbury Hill came from Brookfield to Weston in 1807, and in March 1809, contracted with Nathan Upham, to work in his paper-mill ten months. Two days previous to the expiration of the ten months, (about the last of December, 1809,) Hill again contracted with Upham, to work with him one year, to commence on his return from a visit to his friends in Brookfield; the time of his return to depend on his own pleasure. Immediately after his contract, Hill went to Brookfield, from whence he returned in three weeks, to Weston, where he has *79continued to the present time. He became twenty-one years of age, some time in the month of July, 1809. Uriah Warren, whose vote was received, resided in Weston for eighteen years previous to the election, and was absent only four weeks, on a journey to Maine, in the year next preceding the election.1 John Stimpson, whose vote was admitted, produced to the selectmen sufficient evidence that he was worth the property, required by the constitution, to qualify him to vote for representative. Ephraim Dudley resided one year next preceding the election in Weston, and during that time, worked out of town only one or two months, by the day.
The committee also reported their opinion, upon this statement of facts, that Mr. Hobbs was entitled to a seat.
The report was agreed to, and on the day following, a motion was made to reconsider the vote, and was decided by yeas and nays, in the negative — yeas 105, nays 127.2
[In this case, the election was questioned on the ground, that two votes were illegally received, and two illegally rejected. The latter were those of Bigelow and Hill, which were tendered for Fisk. The votes alleged to be illegally received were those of Stimpson and Dudley, who, the committee found, were entitled to vote. But the committee also reported, that Hobbs was duly elected. It is clear, therefore, although it is not so stated, that Stimpson and Dudley voted for Hobbs; and that the committee and the house were of opinion, that the votes of Bigelow and Hill were rightfully rejected.]
There is no objection made in the petition to the vote of Uriah Warren.
See the case of Westford, 1812-13. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502445/ | The election of Darius Russell, Jonas Sibley, Josiah Stiles, and Estes Howe, members returned from the town of Sutton, was controverted by Caleb Burbank and others, on the ground, that the town did not contain the requisite number of ratable polls to entitle it to four representatives.
The petition in this case was received at the May session,1 but does not appear to have been referred to the committee on elections, until the January session, when they were directed to take up the subject and report as soon as may be.2
A deposition of Caleb Burbank and others was also received at the January session, and referred to the committee.3
On the twenty-fifth of February, the house ordered the committee to make their report on the case, the next day,4 at which time, they accordingly reported, as follows: — ■
“ The petition in the case of the Sutton election was never committed until the fourteenth of February instant, and no person ever appeared, previous to that day, before the committee, to support the charges therein. On the twenty-first day of February, a deposition (of Caleb Burbank and others) passed through the house to the committee, stating that the chairman of the selectmen did, at the May meeting, declare, that the expense of four representatives should not exceed the pay of two. The committee could not consistently with propriety, and according to their rales of proceeding, examine the last charge, which went to a fleet the seats of all the members, without previously notifying all the members to attend before them, and this charge was presented to them so late in the session, that it was impracticable to give such notice, as two of the members had returned to Sutton. The charge in the petition affected the right of Darius Russell alone, to his seat *81in this house, as the petitioners admitted that the town of Sutton contained more than six hundred ratable polls, and that the members returned were chosen by separate ballots, and they also proved that Darius Russell was last chosen. The committee gave notice to said Russell to appear before them, as soon as they could, consistently with the other business committed to them, and after hearing the petitioners, they should have called upon said Russell to shew his right to a seat, had there been a reasonable time, during the sitting of the legislature, for him to have returned to Sutton and procured evidence. Bat the committee are of opinion, that there was not time from the commitment of the petition, to the close of the session, for that purpose, and therefore report, that the house do not take any further order thereon.” The report was agreed to, 98 to 41.1
[Among the papers on file in this case, there is a certificate of the assessors of Sutton, that there were eight hundred and twenty-five ratable polls and upwards therein, on the first day of May, 1810.]
31 J. H. 36.
Same, 309.
Same, 336.
Same, 387.
31 J. H. 411. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502446/ | The election of the members chosen, one of whom only was returned, from the town of Sudbury, was controverted by Ebenezer Plympton and others, on the ground, that said town was not entitled, by the number of ratable polls therein, to more than one representative.
The committee on elections reported, “ that the petition admits the right of the town of Sudbury to send one representative, and it appearing, by the return from said town, that one representative only is returned, the committee therefore *82report, that the right of William Hunt, the member returned from said town, to a seat in this house, is unaffected by the facts stated in the petition.” The report was agreed to.1
[It does not appear whether the members were elected at the same balloting or separately.]
31 J. H. 59. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502632/ | Journal Entries
1. Appearance...........Journal, infra, *p. 343
2. Indictment delivered...........“ 362
3. Plea; sentence; satisfaction acknowledged.....“ 363
Papers in File
1. Recognizance.................
2. Indictment..................
3. Capias and return................ | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502447/ | The election of James Hasty, returned a member from the town of Standish, was controverted by William Thompson and others, on the following grounds, stated in their petition2 :—
“ That the meeting for the choice of a representative, in said town, was appointed to be held at one o’clock in the afternoon, at which time, the petitioners attended, and found the selectmen, town clerk, and constable present; that they waited until a quarter past three, and called, at two several times, for the opening of the meeting, which was refused by the selectmen ; that, concluding thereupon, that there would be no meeting opened, they dispersed; and that the selectmen afterwards called in a party, who, the petitioners suppose, elected the member returned.”
The committee on elections reported, that these facts, if proved, would not affect the right of the member to his seat. The report was agreed to.3
Same, 37.
Same, 53. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502448/ | The elections in these towns were controverted on the ground of a deficiency of ratable polls. The member returned *83from Raymond produced a certificate of the assessors thereof, stating that the said town contained the requisite number of polls, which was not disproved by the petitioners; and the petitioners in the other case produced no evidence. The committee on elections made a report in favor of the members, which was agreed to. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502449/ | The election of Silas Kellogg, returned a member from the town of Sheffield, which had previously united with the town of Mount Washington in the choice of a representative, was controverted by the latter town, on the ground, that the votes of the inhabitants thereof had been improperly and illegally rejected by the selectmen of Sheffield.1
It appeared by a memorial of the selectmen of Sheffield, that they gave notice to the selectmen of Mount Washington, that the votes of the inhabitants of that town would not be received, at the meeting for the choice of a representative in Sheffield, as had been the practice in former years; and that this notice was given in season to have enabled the selectmen of Mount Washington to call a meeting for the election of a representative therein, if they had seen proper to do so.
The committee on elections reported, that Mount Washington was incorporated as a town, previous to the adoption of the constitution, with all the powers, privileges, and immunities of towns, except the sending of a representative, for which purpose it was annexed to Sheffield, and the inhabitants thereof, in the choice of representatives, were considered, to all intents and purposes, as inhabitants of Sheffield; that the third section of the first chapter of the constitution, having *84provided that every town then incorporated might elect one representative, did thereby give to the town of Mount Washington the right to vote by itself in the choice of representative; and, therefore, that Silas Kellogg, the member returned from Sheffield, was duly elected and entitled to his seat.1
31 J. H. 102.
31 J. H. 40. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502450/ | By a return, certified by the selectmen of Lanesborough and New Ashford, it appeared, that Samuel Hill Wheeler was elected a representative from those towns; and by a certificate, signed by the selectmen of New Ashford alone, it appeared, that Richard Whitman was also elected.
At the May session, the committee on elections were ordered to inquire and report specially in relation to these retains.2 The committee reported a reference of the subject to the next session, which was agreed to,3 and at the January session, they reported the following statement of facts4; — •
“ The district of New Ashford was incorporated, February 26, A. D. 1781, with all the privileges of towns, that of sending a representative only exceptedbut, “ by their act of incorporation,” liberty was granted them to join “ with Lanes-borough for that purpose.” Á meeting was legally warned in May last, by the selectmen of Lanesborough, and of the district of New Ashford, [for the choice of representatives]. At said meeting it was agreed to determine, by ballot, the number of representatives they would elect. The selectmen of Lanesborough received the votes of the voters residing in Lanesborough, and the selectmen of New Ashford the votes of the voters residing at New Ashford* The majority of the votes, received by the selectmen of Lanesborough, was to elect one representative. The majority of the votes, received by *85the selectmen of Lanesborough and New Ashford, added together, was to elect two representatives. The selectmen of Lanesborough and New Ashford received the votes for one representative, and Samuel Hill Wheeler was chosen. The selectmen of Lanesborough, and most of tlse voters residing in Lanesborough, immediately withdrew. The selectmen of the district of New Ashford then received tlse votes of the voters, residing in New Ashford, for a second representative, and the majority of the votes so given were for Richard Whitman.” This report was ordered to lie on the table, and does not appear to have been afterwards called up.
[The result of the proceedings in this case was to confirm the election of both the members returned. It may consequently be inferred, that the votes of the two towns, on the question of the number of representatives to be sent, were considered to have been properly counted together; and that the voluntary withdrawal of the selectmen and some of the voters of Lanesborough could not have the effect to deprive the town of New Ashford of the right to proceed and elect another representative, in pursuance of the vote of both towns to elect two.]
Same, 47.
Same, 173.
Same, 232. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502452/ | Tun election of the forty-two members, returned from the town of Boston, was controverted by Edward Proctor and others, on the ground that the ratable polls in said town did not enliile it to that number of representatives. The petitioners alleged, that the number of representatives elected had been predicated upon flie lists of the assistant assessors of the several wards, which they conceived to be erroneous and false: 1. because, they contained the names of persons returned as ratable polls, within the town, who were not inhabitants thereof; 2. because, they contained the names of persons who were neither ratable nor rated polls, namely : ministers of the gospel, the grammar school-master, and minors under the age of sixteen years ; 3. because the same individuals were returned thereon in several wards and repeatedly in one and the same ward: and 1. because the assistant assessors, for the year 18JLU, had relumed an aggregate increase of ratable polls, to the amount of two thousand and one hundred beyond the total number of ratable polls, returned by the assessors fertile year 1809.
The petition in lids case was presented at the January session and referred to the committee on elections, who, on the thirteenth of February, were ordered to report their opinion thereupon as soon as may be.1
*91On the next day, the committee, in obedience to the said injunction, made the following report1:—
“ The committee on elections beg leave to report, that they have heard the petitioners against the returned members from Boston, in part. They find, that it requires nine thousand three hundred and seventy-five ratable polls, to enable a town to send forty-two representatives to this house. The town of Boston did, in August last, contain, according to the census taken according to the laws of the United States, nine thousand one hundred and twelve males above the age of sixteen. The town did, in May last, according to the return of the assistant assessors thereof, contain nine thousand five hundred and and forty-seven persons, whom they termed ratable polls. The assessors made out their list by inquiring at the dwelling-houses and stores; their list contains the names of nearly twenty clergymen, the grammar school-master, the names of foreign consuls, and of officers in the army and navy of the United States. The list also contains the names of a great number of persons taken twice, at their boarding-houses and stores; and in many instances the same person is taken down three times ; the list also contains the names of seven hundred and six aliens. The committee proceeded in the investigation; until they were convinced that it would require all their time, during the present session, to make a thorough investigation; and feeling that their duty to their constituents required their attendance in the house, during its session, they were induced to terminate the investigation, before the petitioners had examined their witnesses, and before the sitting members were heard in answer. The petitioners alleged that they could show, that several hundred persons were improperly returned by the assessors; and the sitting members alleged that they could show, that several hundred ratable polls had not been returned by the assessors. It appears to the committee, that no confidence can be placed in the return of the assessors, as it consists not only of the description of persons above stated, but contains also many Christian names without sir-*92names, and a great number of simantes without Christian names, and also names of persons belonging to other towns. Whilst the investigation has induced the committee to entertain serious doubts of the right of the town of Boston to send forty-two representatives, even admitting the right of the town to send a representation on aliens, yet the committee have no hesitation in reporting, that, if aliens are not to be represented, the town has greatly exceeded their constitutional right. The committee are of opinion, that within the intent and meaning of the constitution, aliens are not entitled to be represented in this house, as they are not parties to that compact; and, if they are correct in this opinion, the election of the forty-two members from Boston must be, considered void, and the seats of the whole number vacated, as they were all chosen at one balloting.”
This report was read and recommitted, and Messrs. Ripley, of Waterville, and Jackson, of Newton, were added to the committee.
On the twenty-seventh of February, the committee again reported as follows1:—
“ The committee on elections beg leave to report, that they have examined several hundred witnesses, and find, by the testimony of Josiah Snelling, that the whole number of males, including aliens, persons in jail and in the poor-house, in Boston, in August last, over sixteen years of age, amounted to nine thousand one hundred and twelve ; and they believe the said Snelling took the numbers with great accuracy. It appears, by a certificate of the assessors, that there were in Boston, in May last, nine thousand five hundred and forty-seven persons, over the age of sixteen, including aliens and persons in jail; and it appears, by another return, that there were in Boston, at the same time, exclusive of aliens, nine thousand nine hundred and sixty persons, over the age of twenty-one, who were legal voters, which list was made out from a list made by the assessors, and corrected by the selectmen— making eleven hundred and twenty-five citizens, over twenty-
1 31 J. H. 412. *93one years of age, more than the town contained of persons, over the age of sixteen, at the same time.
The committee have found more than one hundred persons, twice taken, on the assessors’ list; and also many inhabitants of other towns, students at Harvard college, nineteen ministers of the gospel, the grammar school-master, two foreign consuls, one captain in the navy, and one in the army of the United States, one member of this house from the district of Maine, and more than seven hundred and six aliens.
The sitting members have produced the names of several persons, who, they stated, arc not on the list, and offered to show more. The committee found, on the list, one half, at least, of those offered by the sitting members, as not being returned thereon; and whether the other half are or are not returned, they have not had time to examine. But of this fact they are convinced, that there are more on the assessors’ books, than were in Boston, on the day of election, although they cannot determine the precise number.
The committee would beg leave further to report, that they find, that the town of Boston has predicated a representation on seven hundred and six aliens, and they are of opinion, that, if this house should consider that aliens cannot form the basis of a representation, the said town has greatly exceeded its constitutional right in sending forty-two members. The committee are decidedly of opinion, that aliens cannot form the basis of a representation, for the reasons subjoined :—
Because it is a well known maxim, ‘ that the natural import of the words of airy legislative act, according to the common use of them, when applied to the subject matter of the act, is to be considered as expressing the intention of the legislature ; unless the intention, so resulting from the ordinary import of the words, be repugnant to sound acknowledged principles of national policy; and if that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged, or restrained, so that it may comport with those principles; unless the intention of the legislature be clearly and manifestly repugnant to them.’ ‘ Now we as*94sume, as an unquestionable principle of sound national policy in this state, that, as the supreme power rests wholly in the citizens, so the exercise of it, or any branch of it, ought not to be delegated by any but citizens, and only to citizens. It is, therefore, to be presumed, that the people, in making the constitution, intended that the supreme power of legislation should not be delegated but by citizens; and if the people intended to impart a portion of their political rights to aliens, this intention ought not to be collected from general words, which do not necessarily imply it, but from clear and manifest expressions, which are not to be misunderstood: but the words, ‘inhabitants/ or ‘ residents/ (or ‘ ratable polls/) may comprehend aliens, or they may be restrained to such inhabitants, or residents, (or ‘ ratable polls/) who are citizens according to the subject matter to which they are applied. The latter construction comports with the general design of the constitution. There the words, ‘ people’ and ‘citizens/ are synonimous. The people are declared to make the constitution for themselves and their posterity ; and the representation in the general court is a representation of the citizens. If, therefore aliens could vote in the election of representatives, the representation would be, not of citizens only, but of others.’ Or if aliens could be deemed as ratable polls, to give rights to the corporation in which they were residents, the equality of the representation of the citizens of this commonwealth, provided for in the constitution, would be destroyed, inasmuch as a town which contains one hundred and forty-nine citizens above the age of sixteen and no alien, would not be entitled to a representation, whilst on the other hand, a town containing but three citizens above the age of sixteen, and one hundred and forty-seven aliens, would be entitled to a representative ; and in this last case, in this town, which, contained but three electors and three persons qualified for representatives, these three persons would enjoy the right of electing and returning one of their number, and thus we should he exposed to all the evils of the rotten boroughs in England. ‘ It may * here lore seem superfious to declare our opinion, that the au*95thority given to inhabitants and residents to vote,’ (to predicate their representation on ratable polls,) ‘ is restrained to such inhabitants, residents, and ratable polls, as are citizens,’
' A question here arises, if the legislature can constitutionally provide that the polls of aliens shall be ratable.’ 4 If by this provision, aliens would acquire any political rights, to the diminution of the rights of citizens, we should for the reasons before given strongly incline to believe, that the legislature were restrained from making this provision. For as the political rights, arising under the constitution, are manifestly the rights of the citizens, the language of the constitution ought to be so construed, if practicable, that their rights should not be diminished, by sharing them with aliens.’ But if a corporation could increase its representation in consequence of resident aliens, the rights of other corporations would be diminished thereby. 4 It is extremely clear,’ that by the payment of taxes, aliens 4 acquire no political rights whatever.’ And as they can acquire no political rights, so they can communicate none. 4 Whether their polls are ratable or are not ratable, they are not qualified voters for senators or representatives, nor can they be qualified to hold either of those offices,’ or increase the political rights of the corporation in which they reside. It is but reasonable that aliens residing amongst us, and receiving the protection of the law, should pay a reasonable price for their protection and security; and when they are obliged to pay no other taxes than those paid by citizens, they cannot complain. 4 The right of sending a representative is corporate ; this corporate right is also a corporate duty, for the neglect of which, a fine may be assessed and levied upon the inhabitants.’ Now, if it would be competent for the legislature to impose a fine on a town, containing only one hundred and fifty polls, including the polls of aliens, it would also be competent for them to impose a fine on a town, containing one hundred and fifty alien polls, and no citizens; and this absurd consequence would follow, that a town which did not contain a single elector, or a person qualified for a representa*96tive, might be fined for not sending a representative. The committee have thus ‘ restrained the general import of the words ‘ inhabitants/ and ‘ residents/ (and ‘ ratable polls/) and in some parts of the constitution, to inhabitants and residents/ (and ‘ ratable polls/) ‘ who are citizens; that*we might not unnecessarily fix on the people an intention of imparting any of their rights of sovereignty to aliens.’
The committee are, therefore, of opinion, that aliens, although they may, as the price of the protection of the government, be compelled to pay a capitation tax, yet they are not to be considered as ratable polls, within the meaning of the constitution, so as to form the basis of a representation; — that there is a very strong, and almost irresistible presumption, that the town of Boston has greatly exceeded her constitutional right, in sending forty-two members to this house; yet, as they have not been able to finish the investigation, they recommend, that the further consideration of the subject be postponed to the next session of the general court.”
The report having been read, the further consideration thereof was postponed to the next Thursday; and, in the meantime, it was ordered to be printed.
On the twenty-eight of February, this case was indefinitely postponed, by the general order, mentioned in the case of the Concord election.
[While this case was under investigation before the committee, an order was passed, requesting the opinion of the justices of the supreme judicial court, on the principal question raised in it, namely, whether aliens are to be considered as ratable polls, in determining the number of representatives, to which a town may be entitled. The opinion of the court was received, before the committee had concluded their labors, and was made use of by them, in drawing up their report, though the committee came to a different conclusion. The passages in the report, marked as quotations, are extracted from the opinion of the court. See the order and opinion at the end of the cases for this year. ]
31 J. H. 305.
31 J. H. 311. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502455/ | On the twenty-eighth of February, 1811, the following resolution was adopted: —
Resolved, that in all cases of controverted elections, in the house of representatives, the following rules shall be observed:
1. No petition, against the election of any member, shall be received by the house of representatives, after the first session of any general court.
2. No petition, against the election of any member, shall be sustained or committed in the house, unless at the time of presenting the same to the house, the said petition be accompanied by evidence that a copy of the same petition has been given to some one of the selectmen of the town, whose elective franchise is affected thereby, and the person or persons elected, or left at their several last and usual places of abode, ten days at least, before the petition shall be presented to the house.
*1173. All questions on elections shall have a priority in the house, to all other questions, and may be at any time called up by any member of the house.
4. The facts stated by the committee on elections, in their reports to the house, shall be considered as the only basis upon which the determination of this house, on controverted elections, shall rest, and all extraneous matter not included in such report shall be excluded. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502456/ | On the sixth day of February, 1811, the following order was passed: —
“ Ordered that the justices of the supreme judicial court be requested, as soon as may be, to give their opinion on the following question: —
Whether aliens are ratable polls within the intent and meaning of the constitution of this commonwealth ? — and whether the towns in this commonwealth, in ascertaining their number of ratable polls, in order to determine the number of representatives they are entitled to send to this house, can constitutionally include in that number aliens resident in said towns, and predícate a representation on such resident aliens ? — -and, whether such representation can constitutionally be predicated *118on the number resulting from the including, in the number of ratable polls, aliens resident in any towns within this commonwealth, and taxed, and paying taxes therein?”
On the sixteenth, the following opinion was received by the speaker, and by him communicated to the house: —
“ To the speaker of the honorable house of representatives of the general court of Massachusetts.
Sir, — The undersigned, justices of the supreme judicial court, have considered the several questions, proposed to them by an order of the house, passed the 8th of February instant.
Before we advert to those questions, some general remarks on the constitution, and on some rules by which its construction is ascertained, may illustrate the reasons of our opinion.
From the manner, in which the department of legislation is formed, two questions may arise : one relating to the qualifications of the electors; — and the other relating to the apportionment of senators and representatives among the senatorial districts, and among the towns.
The elector of a senator must be an inhabitant of the senatorial district, in which he votes; and the elector of a representative must have resided one year in the town, before lie can there be a voter. But an alien may be an inhabitant of a district, because he may there dwell, or have his home; and he may have resided in some town, more than a year.— Can therefore an alien be a legal voter for a senator or representative ?
Before this question is answered, we shall explain the principles on which the answer will be given.
The constitution is law, the people having been the legislators ; and the several statutes of the commonwealth, enacted pursuant to the constitution, are law; the senators and representatives being the legislators. But the provisions of the constitution, and of any statute, are the intentions of the legislature thereby manifested. These intentions are to be ascertained by a reasonable construction, resulting from the application of correct maxims, generally acknowledged and received.
*119Two of these maxims we will mention : — That the natural import of the words of any legislative act, according to the common use of them, when applied to the subject matter of the act, is to be considered as expressing the intention of the legislature : unless the intention, so resulting from the ordinary import of the words, be repugnant to sound, acknowledged principles of national policy. — And if that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those principles: unless the intention of the legislature be clearly and manifestly repugnant to them. For although it is not to be presumed, that a legislature will violate principles of public policy, yet an intention of the legislature repugnant to those principles, clearly, manifestly and constitutionally expressed, must have the force of law.
In consequence of the application of these maxims, similar expressions in different statutes, and sometimes in the same statute, are liable to, and indeed do receive, different constructions, so that the true intent of the legislature may prevail.
Now we assume, as an unquestionable principle of sound national policy in this state, that, as the supreme power rests wholly in the citizens, so the exercise of it, or of any branch of it, ought not to be delegated by any but citizens, and only to citizens. It is therefore to be presumed that the people, in making the constitution, intended that the supreme power of legislation should not be delegated, but by citizens. And if the people intended to impart a portion of their political rights to aliens, this intention ought not to be collected from general words, which do not necessarily imply it, but from clear and manifest expressions, which are not to be misunderstood.
But the words “ inhabitants” or “residents,” may comprehend aliens; or they may be restrained to such inhabitants or residents, who are citizens; according to the subject, matter, to which they are applied. The latter construction comports with the general design of the constitution. There the words “people” and “citizens” are synonymous. The people are declared to make the constitution for themselves, and their *120posterity. And the representation in the general court is a representation of the citizens. If therefore aliens could -vote in the election of representatives, the representation would be not of citizens only, but of others; unless we should preposterously conclude, that a legally authorized elector of a representative is not represented.
It may therefore seem superfluous to declare our opinion, that the authority given to inhabitants and residents, to vote, is restrained to such inhabitants and residents as are citizens.
This-construction, given to the constitution, is analagous to that given to several statutes. — Creditors may levy their execution on the lands of their debtors, and hold them in fee simple, unless redeemed. Although the words of the statute are general, yet they are not deemed to include alien creditors. If they were so deemed, then under color of a judgment and execution, the rule of the common law, prohibiting an alien from holding lands against the commonwealth, would be defeated. So a general provision is made for the dower of widows; yet it is not supposed that a woman, who is an alien, can claim, and have assigned to her, dower in the lands of her deceased husband.
We now proceed to consider the constitution as relating to the apportionment of representatives among the towns, and of senators among the senatorial districts.
The right of sending representatives is corporate, vested in the town; and the right of choosing them is personal, vested in the legal voters. Because the right of sending a representative is corporate, if the town, by a legal corporate act, vote not to send a representative, none can be legally chosen by a minority dissenting from that vote. This corporate right is also a corporate duty, for the neglect of which a fine may be assessed and levied upon all the inhabitants liable to pay public taxes.
The number of representatives, which each town may send, depends on the number of ratable polls in the town; with the exception of towns incorporated before the making of the constitution, who may send at least one representative. The *121rule of apportionment therefore does not depend on the number of legal voters, all of whom must be of full age; whereas the polls of minors, above the age of sixteen years, were ratable at the establishment of the constitution. What polls are, or are not ratable, are not designated by the people ; they having left the designation to the discretion of future legislatures. And when the general court has by law declared what polls are ratable, all those polls are to be deemed ratable polls in the respective towns, in which they dwell.
A question therefore arises, whether the legislature can constitutionally provide, that the polls of aliens shall be ratable.
If by this provision aliens would acquire any political rights, to the diminution of the rights of citizens, we should for the reasons before given strongly incline to believe, that the legislature were restrained from making this provision. For as the political rights, arising under the constitution, are manifestly the rights of the citizens, the language of the constitution ought to be so construed, if practicable, that these rights should not be diminished, by sharing them with aliens. But without deciding what municipal, parochial, or corporate rights, aliens may, by the equity and benignity of the laws, acquire in consequence of their paying public or other taxes on their chattels, real or personal, or on their polls; it is extremely clear, that by such payment they acquire no political rights whatever. Whether their polls are, or are not ratable, they are not qualified voters for senators or representatives; mor can they be qualified to hold either of those offices.
No reasons have occurred to us, to restrain the power of the legislature from making the polls or the estates of aliens ratable ; for the only limit to that power, under the constitution, is an exercise of it repugnant to the constitution. We have observed, that the political rights of the citizens are not affected by the exercise of that power; and we may observe, that it is the interest of the citizens, that it should be exercised in obliging aliens to contribute their reasonable proportion towards defraying the expenses of the government; As aliens residing among us receive the protection of the common*122wealth, and are secured in the fruits of their labor, and in the acquisition of goods and chattels, this contribution may be exacted, as a reasonable price of this protection and security, And when an alien is obliged to pay no other tax on his poll and estate, than is required from a citizen, having equal personal ability and estate, he cannot complain that the assessment is inequitable.
Before we can answer directly the question submitted to us, we are obliged to inquire, whether the polls of aliens are at this time by law ratable. By the last public tax act, the assessors of each town are required to assess all the male polls, above the age of sixteen years, within their respective towns, including negroes and mulattoes; with the exception of the president of Harvard College, and some other descriptions of persons, in which aliens are not included. The words are general, and according to their common usage extend, as well to the polls of aliens, as of citizens, who are above the age of sixteen years; and for the reasons we have given, we are not authorized so to restrain them, as to deny to the legislature the right of making the polls and estates of aliens ratable, or to refuse to the citizens the privilege of demanding from aliens a reasonable contribution towards the public charges.
If it should be asked, whether the poll of an alien may not be considered ratable, for the purpose of obliging him to pay a public tax, and not be considered ratable for the purpose of ascertaining the political rights of the town, in which he may live ? — we should declare, that we know of but one purpose, for which a poll is ratable, which is making it subject to a capitation tax. If it is so subject, it is a ratable poll within the constitution. And if any town, incorporated since the. constitution was established, contained one hundred and fifty ratable polls only, including the ratable polls of aliens within it, it would be competent for the legislature to impose a fine on this town, refusing to send a representative, for the breach of such political and corporate duty.
As senators are apportioned among the senatorial districts, ip proportion to the public taxes they respectively pay, we can*123not distinguish between the ratable poll of an alien, operating in the apportionment of representatives among towns, and the public tax paid by an alien, operating in the apportionment of senators among the senatorial districts. And in making this last apportionment, it is not an object of inquiry, whether a part of the public tax any district has paid was assessed on, and collected from the polls of aliens.
We request the indulgence of the honorable house for having considered the subject so much at large. Perhaps it was unnecessary; but it was done for our own sakes, clearly to explain the reason, that while we admit the general rale, that words, in any legislative act, are to be construed according to the common usage ; yet that there are cases, in which their import may be enlarged or restrained, to express the real intention of the legislature, which, when ascertained, is the law resulting from the act. Thus we have restrained the general import of the words “inhabitants” and “residents,” used in some parts of the constitution, to inhabitants and residents who are citizens; that we might not unnecessarily fix on the people an intention of imparting any of their rights of sovereignty to aliens : and at the same time we have used the words “ ratable polls ” according to their common acceptation, as there is no principle of construction authorizing us to deviate from it, by denying to the legislature the right of making the estates and polls of aliens ratable. For the taxes, assessed on the polls and estates of aliens, have no effect on their political rights, but merely influence the apportionment of representatives among the towns, and of senators among the senatorial districts; in which apportionments aliens have no interest or concern.
We now respectfully submit to the honorable house our opinion, formed after the best deliberation we have given the subject; — and it is our opinion'—
That the polls of aliens may, within the true intent and meaning of the constitution, be ratable polls, when and so long as they are made liable, by any legislative act, to be rated to public taxes.
*124That the polls of male aliens, above the age of sixteen years, are now by law liable to be rated to public taxes, and now are ratable polls, within the intent and meaning of the constitution; and, consequently,
That the several towns in the state, in ascertaining their number of ratable polls, in order to determine the number of representatives they are entitled to send, can constitutionally include in the number of their ratable polls, the polls of aliens, residing in their towns respectively, by law ratable to public taxes, and predicate a representation thereon, which will be a constitutional representation.
(Signed) THEOP. PARSONS. SAMUEL SEW ALL, ISAAC PARKER. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502457/ | The committee on the returns, having reported that the return from Lanesborough and New Ashford was certified by the selectmen of the latter town only:1 it was thereupon ordered, that the committee on elections inquire into the propriety and regularity of the said return, and examine the law by which those towns are authorized to send representatives. The committee were also directed to notify the member purporting to be returned, to attend them in the investigation of the subject.2 A petition of the town of Lanesborough, against the said election, was also received, and referred to the committee.3
On the twenty-seventh of June, the committee reported the following statement of facts4 :—
“ The town of Lanesborough was an incorporated town previous to the adoption of the constitution, and, of course, by the provision of that instrument, was entitled to send a representative to the general court. New Ashford was erected into a district in the year 1781, and was invested with all the rights of an incorporated town, ‘ that of sending a member to the general assembly only excepted,’ but liberty was given them to join with Lanesborough for that purpose.
Without expressing their full opinion of the operation of this annexation, the committee will only say, that in their view, a new corporation for the purpose of sending a representative was thereby created, formed of two which in every other view were perfectly distinct: and although Lanes-borough might retain its sole right under the constitution of sending a member, in case New Ashford refused to co-operate *126with them for that purpose ; yet when it did eo-operate, there can be no doubt, that the two political bodies became blended, and formed into one, for the purpose of choosing a representative. The question then arises, how, under the statute of February 24, 1796, entitled 4 an act regulating elections,’ is the return of a member, chosen by this new corporate body, to be certified ? Provision is therein made, that, in every corporate town, the selectmen, or the major part of them, shall call meetings, shall preside, and make return of the members elected. If, then, for the purpose of choosing a representative, Lanesborough and New Ashford are to be considered as one corporate body, it would follow, of course, that a return, in order to be according to the forms of the above mentioned statute, must be signed by a major part of the selectmen of the two component parts of the corporation mingled and formed into one, for the single purpose of choosing a representative.
It may here be asked, whether, in case a member were fairly and legally chosen, and the selectmen of Lanesborough refused to sign his certificate, what remedy could he have ? To this it may be answered, that if proof were given of such refusal, the legislature are by the statute above cited invested with discretionary powers, to give validity to any certificate which ‘ should be to their acceptance.’ Of course they have all the necessary powers, to correct any improper proceeding, on the part of selectmen.
In judging on the face of the return, the committee can have no hesitancy in saying, that it is insufficient because signed only by the three selectmen of New Ashford, who do not form a majority of the selectmen of the corporations of Lanes-borough and New Ashford. But, if proof were to be offered, that the selectmen of Lanesborough had improperly refused to sign, it would be in the power of the legislature, under their general discretionary powers, imparted by the above recited act, to give to it validity and efficiency. And the committee would observe, that a petition against the seat of the'sitting member has already been committed to them, and, on a hear*127ing of that petition, they should be better enabled to judge of the case. Under these circumstances, they submit it to the house to decide as to them may seem proper.”
The report was agreed to, and, on the twenty-seventh of January, In the, next session, a motion was made, that the house do vote the seat of the member from Lanesborough and New Ashford, to be vacated. This motion was subse-quenily taken up, and after debate thereon, the following vote was passed, namely :1—
“ It appearing by the report of the committee on elections, made at the last session, that the certificate produced by the sitting member from Lanesborough and New Ashford was insuilicient, th erefore,
Besolved, That the seat of the said member be declared vacated.”
32 J. H. 40.
Same, 63.
Same, 103.
Same, 165.
32 J. H. 273. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502458/ | The election of Elkanah French, Caleb Abell, John Medbury, Sebra Lawton, and Timothy Walker, members returned from the town of Rehoboth, was controverted by Stephen Bullock and others, on the ground of improper conduct on the part of the selectmen of the said town, at the meeting therein for the choice of representatives.2
The facts in the case are stated in the following report of the committee on elections, made on the fourteenth of February, in the second session,3 namely: —
“ The committee on elections, in the case of the petition of Stephen Bullock and others, inhabitants of the town of Rehoboth, against the election of the members returned from said town, report, that they find, that on the thirteenth day of May, now last past, a meeting of the inhabitants of the town *128of Rehoboth was holden, in pursuance of a warrant issued fourteen days before, for the choice of one or more representatives to the present general court; that at this meeting, motions were made, seconded and put, in order to obtain a decision on the questions, whether the town would send one representative, or five representatives; that the votes appeared to be so equally divided at the first trial, that the selectmen declared, they could not decide on which side was the majority; that afterwards it was agreed, that each voter in favor of sending five should take by the hand a voter in favor of sending one, and march out of the house; and Captain Cushing and Mr. Thomas Kennicut were appointed to count the files, and determine the question upon an inspection of those, on either side, who should be without partners; that after the said two gentlemen had counted two hundred and ninety-eight files, they were interrupted by Elkanah French, Esq., who told them it was impossible to decide the question, in that mode, it being evident, as he said, there was a mistake ; that the question was not understood, for he saw ‘ republicans ’ on the side for sending one. It was observed by Capt. Cush-ing in, reply, that there could be no mistake ; that they had already counted off’ five hundred and ninety-six, with correctness, and that in a few minutes the counting would be finished, and a decision made; but Mr. French persisted in his interference, took Capt. Cushing aside, and they were in conversation for some time. In the meanwhile, many voters, thinking the counting was finished, left their places, and went into the meeting-house to hear the result declared, and, shortly after, all the others followed. The selectmen, on being called upon to declare the result, observed that they could not decide, for the counting was not completed. It appears that there were from fifteen to twenty-five persons without partners, and that these fifteen to twenty-five constituted the majority for sending one representative ; but whether this fact was known by the selectmen, the committee cannot determine. After these ineffectual attempts to obtain a decision on either question, of sending one or five, it appears, that a motion for dissolving th e *129meeting, and a motion for its adjournment to Saturday, the eighteenth day of the same May, were regularly made and submitted to the freemen for their decision. On the house being polled, the selectmen declared that there were three hundred and thirty-one for dissolving the meeting, and three hundred and twenty-seven for adjourning until Saturday, and there being a majority of four for dissolving the meeting, it was dissolved accordingly.
The committee further find, that on the next day, (to wit, the 14th of the same May,) the selectmen, upon a petition signed by fifteen inhabitants, issued their warrant for a town-meeting, to be holden on Saturday, the 18th day of the samé month, at 12 o’clock, noon, at the east meeting-house, for the purpose, as expressed in the warrant, of sending one or more representatives to the general court; the notifications to that effect were given verbally, or by reading copies of the warrant, by the constables, to the inhabitants they found at home, or met in the highways ; and when an officer did not find a voter at his home, and had not met him elsewhere, he stated verbally the purpose and time of the meeting to the wife or other person or persons he found at the domicil of the qualified voter. It appears that notifications were not posted at the meeting-houses, and no public day intervened, from the issuing of the warrant until the time of the meeting. The committee also find, that the uniform manner of calling town-meetingS in Rehoboth, for fifty-two years last past, has been by posting notifications, at each meeting-house in said town, so long before the intended meeting, as to have two public days intervene between the time of posting up the notifications and the time of the meeting, and that this mode Was never deviated from, until the present instance.
The committee further find, that, at the meeting on the 18th of May, immediately after the petition and warrant were read, a motion was regularly made and seconded, that the town should send one representative, and no more ; and immediately following this motion, another was made and seconded to send five; that Elkanah French, Esq., (the presiding select*130man at this meeting,) declared, in a loud voice, as follows: 41 will hear none of your motions, and I will put none of your motions; I will manage this meeting according to my own mind. If you do not like my proceedings, or if I do wrong, prosecute me. Bring in your votes for from one to five representatives.’ That at the time the first motion was made, or the instant before, a voter put his ballot into the box; and this voter swore to his belief that his vote was in, the moment previous to the first motion being made.
The committee further find, that the meeting was unusually orderly and quiet, until the declarations of refusal to put motions were made by said French, as aforesaid ; that, consequent upon those declarations, much confusion and tumult ensued, some insisting that the motions should be put and decided, before any votes were received ; others insisting upon voting, and others that they should not vote ; and in some instances, personal contests arose between the voters, and blows were given ; that the selectmen ordered one person, who appeared to them to be the most riotous, to be carried out of the meeting by the peace officers, and he was by them carried out, without any resistance being offered them, excepting that made by the individual himself; that most of the tumult and confusion was immediately in front of the seat of the selectmen ; that the presiding selectman repeatedly called for order, and declared, unless there was order, he would turn the box in five minutes; that for a short time after the tumult commenced, the noise was so great, it was with difficulty that either the moderator or any other person could be heard.
The committee also find, that when six or eight ballots were in the box, a motion was made and seconded for an adjournment of the meeting for half an hour, and reasons in support of the motion were assigned to this effect: ‘ that it was evident there was much agitation and confusion in the meeting, caused by the refusal to put the former motions; that the question, how many representatives the town would send, had, at all previous town-meetings, been submitted for decision to the freemen, as a matter of course; that a refusal in this in*131stance was altogether unexpected, and considered by many as a gross infringement of the rights of the people, and that an adjournment for a short period would give opportunity for tumult to subside, passion to cool, and the electors to vote with regularity.’ This motion also was, by the said Elkanah French, utterly refused to be put; — he declared he would not put it, and ordered the mover to sit down, and hold his tongue.
The committee further find, that the presiding selectman ordered the aisles to be cleared, and repeated his calls for order, and for votes to be brought in; and that he ordered the voters to come up the western aisle, vote, and then to go down the eastern aisle. They also find, that the manner of votilíg of the electors at the east meeting-house has uniformly, for twenty-two years, been, to come up the eastern aisle, vote, and then go down the western aisle ; that consequently the eastern aisle was very much crowded with voters, who were there in the expectation of passing up that aisle, voting, and of going down the western, as usual; that when the order was given to go down the eastern, and come up the western aisle, six or eight, who had voted, endeavored to force themselves down the eastern aisle, and formed a phalanx at its head, which contributed to the confusion.
The committee further find, that, after the presiding selectman had received a few ballots, Nathaniel Drowne, Esq., one of the selectmen, declared the town had a constitutional right to send six representatives; that upon this declaration, the said French turned the votes, then received, out of the box upon the table, and ordered the voters to bring in their votes for from one to six representatives; that after the voting had proceeded for a short time, under the last order, the said French took up the votes which had been turned out, and returned them to the box, and they were counted with the others.
The committee further find, that after the order was given as aforesaid, to bring in votes for from one to six representatives, votes, to the number of six or seven, were received by *132the selectmen, and deposited in the ballot box, which votes were not received directly from the hands of the voters, but were collected by one Thomas Bowen, (after he had himself voted,) from persons in the crowd, and were by him delivered to the aforesaid Nathaniel Drowne, who put them into the box; that in other instances, votes were passed from hand to hand, over the heads of voters, until they arrived at, and were deposited in, the ballot box.
The committee further find, that the votes of five or six qualified voters were, by them, offered to the presiding selectman, and were by him refused to be received; that in most of these instances no reasons were assigned for the refusal; in one instance, he assigned as a reason, that he was about turning the box, and that he would not receive any more votes; but after he had thus said and thus refused, he did receive the votes of three persons, other than those he had refused as aforesaid; and then turned the box and made declaration, that the whole number of votes was twenty-five; that Caleb Abell, John Medbury, Sebra Lawton, Elkanali French, and Timothy "Walker, had twenty-three votes, and were chosen, and that Peter Hunt had two votes; and then left his seat, and immediately Nathaniel Drowne, Esq., one of the selectmen, made declaration, that all the above six were elected, and the meeting was dissolved.
The committee further find, that at the time the box was turned, the tumult and confusion had, in some degree, subsided; that no assault or personal violence was made upon nor offered to any of the selectmen, either in going to, or returning from the meeting; and that the authority vested in the selectmen by the constitution and laws, was not wrested from them during the meeting.
The committee also find, that at the meeting, and while the selectmen were calling for and receiving votes, the leaf of the table of the deacon’s seat was violently broken down, and the breast work of the pew pressed in towards the selectmen, and blows were aimed over the heads of some persons at the presiding selectman, which in the opinion of the witness, *133adduced to this fact, would have reached him, unless he had avoided them by reclining towards the pulpit.
The committee further find, that there were between six and seven hundred qualified voters present at the meeting, twenty-five of whom voted, arid one witness testified, that, in his opinion, no more votes would have been given in; but when it was demanded of the voters if their votes were all in, the answer No! No! was generally given; that the time which elapsed from commencing to receive votes until the box was turned and the result declared, was not more than twelve minutes, and that the time from the opening to the dissolving of the meeting, was twenty-eight minutes, and that immediately after the dissolution of the meeting, the aforesaid El-kanah French, Esq., upon some one expostulating with him on his conduct, openly declared, that he had intended to manage the meeting according to his own mind, and that he had done it.
The committee have the honor to exhibit the above statement of all the facts, which can be considered material; long as it appears, it is as much condensed as possible from the mass of documents and evidence adduced in the case ; and they feel themselves obliged respectfully to suggest, that in their very elaborate inquiry into, and minute and laborious investigation of, the facts and circumstances attending this election, they have been actuated by an anxious desire to discharge their duty with great care and fidelity, in a case of much more than ordinary import, whether considered as affecting the rights of the people of this commonwealth, the immunities of the large and respectable town of Rehoboth, the privileges of the sitting members, or as affording precedents for the governing of towns, in the exercise of the elective franchise, in the choice of representatives.
Upon mature consideration of the foregoing facts, and a careful application of the principles of the constitution and law to them, the committee report, that the supposed election of representatives to this house, from said town of Rehoboth, on the eighteenth day of May, in the year of our Lord one *134thousand eight hundred and eleven, is altogether void and of no effect, and consequently, that the seats of Caleb Abell. John Medbury, Elkanah French, Sebra Lawton, and Timothy Walker, Esquires, returned as members as aforesaid, be declared vacated.”
This report, having been made the order of the day, for the eighteenth of February, was then taken up, and after debate thereon, the question of agreeing to it was decided by yeas and nays, in the affirmative, yeas, 206, nays, 181.
The speaker then declared the seats of the members from Rehoboth to be vacated.
Same, 47.
Same, 320. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502634/ | Journal Entries (1824): Journal3: (1) Rule to bring body, prisoner discharged *p. 512.
Papers in File: (i) Indictment indorsed “This bill not found.” | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502635/ | Papers in File (1814-15): (1) Indictment; (2) capias sur indictment and return; (3) alias capias and return. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502636/ | Papers in File (1816): (1) Indictment; (2) capias sur indictment and return. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502459/ | The house, on the 29th of May, 1811,1 having
“ Ordered, That the rules and orders of the last house of representatives be adopted for the present, by this house, until new ones shall be agreed on by the house.”
On the fourth of June,2 the speaker (Hon. Joseph Story) ruled, that the rales, with regard to elections, adopted by the last house, on the twenty-eighth day of February last, were to be considered as the rules of proceeding for the present, until other rules should be adopted.3
32 J. H. 19.
Same, 47.
In the British parliament, besides the methods established by usage and custom, two kinds of rules or orders, for the regulation of the proceedings, are in use, namely, standing and sessional orders. The former endure from one parliament to another, and are of equal force in all. The latter are renewed at the commencement of each session, and otherwise have no binding force, beyond the session for which they are made. An order becomes a standing order, simply by being declared to be so, either at the time when it is originally made, or afterwards. A standing order, until it is vacated or rescinded, has the same authority upon succeeding houses, as if enacted by law. In this country, — certainly in congress and in this commonwealth, — the rules and orders made by one house are not binding on a succeeding house, until they are adopted by the latter. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502460/ | A petition against the election of five representatives, returned from the town of Middleborough, being presented, and it appearing that copies thereof had been served on two only of the members, the speaker decided that it could not be sustained,1
32 J. H. 134. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502461/ | On the twenty-second of February, a committee was appointed to consider the expediency of limiting the time, or fixing a manner, of proceeding on controverted elections, different from that practised in this house, with leave to report by bill or otherwise;2 and on the twenty-ninth of February, the following rales were adopted upon the report of the said committee :3
“ 1. Ordered, That in future all petitions against any member or members returned to the house of representatives shall be presented, read, and committed, within the first four days of the first session of the general court.
*1362. Ordered, That members, who are appointed on committees of controverted elections, shall not be put on any other committees, until they shall have made up their report on such elections.
3. Ordered, That all petitioners, or their agents, against any such member or members, shall be ready with their evidence, before said committee, on or before the tenth day of the first session of the general court. And the sitting members, whose election shall be controverted, shall also be ready with their evidence within the first twelve days of said session, unless in such case as the house or committee shall find good and sufficient reason to order otherwise; and in all cases where it shall not be otherwise ordered, said committee shall sit, hear, and determine, in the recess of said court, and report thereon within the first three days of the second session of the general court.” It was also
“ Ordered, That the clerk cause the foregoing rales and orders to be published in the newspaper in which are printed the laws of this commonwealth.”
Same, 350.
Same, 388. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502464/ | The election of Jesse Minot, one of the two members returned from the town of Westford, was controverted by Benjamin Osgood and others, on the ground, that the said town did not contain a sufficient number of ratable polls to entitle it to two representatives.2
*142: The committee on elections, on the ninth of June, made the following report, which was agreed to,1 namely: —
“ The petition, in this case, is predicated on the want of a sufficient number of ratable polls, in said town, to entitle it to two representatives in the general court.
In this case, the selectmen and assessors of said town, in compliance with an order of the committee, produced a list of all the persons they considered as ratable polls, belonging to said town, on the first Monday of May last, the day of the meeting of the inhabitants of said town, for the choice of one or more representatives to this general court; at which meeting, they did choose two representatives, at separate ballotings, to wit: Thomas Fletcher, Esq., at the first ballot, and Jesse Minot, at the second ballot. It appeared that the list aforesaid contained three hundred and seventy-five names, one state pauper, and eleven, young gentlemen, who were, on said first Monday in May, students in Westford academy, situate in said town. It appeared to the committee, in evidence, that the eleven students referred to were all over the age of sixteen, and under the age of twenty-one years, whose parents and guardians ail belonged to towns other than the said town of Westford. Upon these facts, the committee are unanimously of opinion, and report: —
That said town of Westford, at the time of said election, did not contain a sufficient number of ratable polls to entitle it to two representatives, and that the supposed election of Jesse Minot, on the first Monday in May, 1812, was utterly void, and of no effect; and that Jesse Minot is not entitled to a seat in this house, and that his seat be declared vacated.”
When this report was read in the house of representatives, only one member expressed a doubt, whether the students referred to were improperly put on the list of ratable polls. But as it appeared to be the unanimous opinion of the house, that state paupers are not ratable polls, and as striking off one from the list produced in this ease, by the selectmen, would reduce the number so as to avoid the election of the person chosen at the *143second balloting, the question respecting the students may, perhaps, be said not to have been finally settled,
[The entry on the journal, in relation to the aboye report, is, that it be “ so far accepted, as that the member be not entitled to a seat, and that the residue of the report be recommitted but for what purpose is not stated, and cannot readily be conjectured, unless it were, that the committee might examine and express an opinion upon the question, whether the students alluded to were or were not ratable polls. The committee reported a reference to the next session, which was agreed to, and no .further action appears to have taken place in relation to the subject.1
The question, whether students, at an academy or college, are legal voters in the town where they have a temporary residence for the purposes of education, came before the supreme judicial court, in the case of Putnam vs. Johnson, in 1813, (10 Mass. Rep. 488,) and was the subject of elaborate discussion, both by the counsel and court. In the opinion of the latter, delivered by Parker, J., it is said, that “ a residence at a college or other seminary, for the purpose of instruction, would not confer a right to vote in the town where such an institution exists, if the student had not severed himself from his father’s control, but resorted to his house as a home, and continued under his direction and management. But such a residence will give a right to vote to a citizen not under pupilage, notwithstanding it may not be Ms expectation to remain there forever.” See a report of the committee on the judiciary of the house, on this question, in 1842, post, page 436, and an opinion of the justices of the supreme judicial court thereon, in 1843, post, page 510.]
33 J. H. 11.
33 J. H. 146.
33, J. H. 221. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502465/ | The election of Joseph Field, returned a member from the town of Western, was controverted by Josiafa Putnam and others, on the ground, that the selectmen, at the meetiryj in which said Field was elected, received the votes of several persons, who were not qualified voters, and rejected the votes of others, who were duly qualified.2
The facts in the case are sftted in the following report of the committee on elections, which was made on the seventeenth of June, and accepted,3 namely
« A meeting, duly and legally warned, for the choice of representative from said town, was there holden on the fourteenth day of May last past: — the whole number of votes given in at said election was one hundred and sixty-eight; the said Joseph Field had eighty-eight votes, Samuel Knight had seventy-eight votes, and there were two scattering. The said Field was chairman of the board of selectmen, who admitted five persons notoriously unqualified as to property, who were friendly to the election of said Field, to vote at said election, notwithstanding the objections made against them on this behalf. The names of the persons so admitted are Joel Barrows, Aaron Hobbs, John Brown, Amri Strickland, and Samuel Monroe, the last of whom, the sitting member ad*145mitted, before the committee, not to have the requisite qualification as to property. The said selectmen admitted four persons to vote, who were friendly to the election of said Field, who had not resided in Western one year next preceding the said election, notwithstanding the objections made against them on this behalf, namely, George Hodges, Jason Gilbert, Nathan Hathaway, 2nd, and Ira Robinson, the last of whom lived at Leicester, and went from thence to Western, the night before the said meeting, and returned back to Leicester, the day after; although they rejected the votes of several persons under similar circumstances, but who were opposed to the election of said Field. The. selectmen rejected the votes of two persons, who were qualified in point of property and residence, and who were opposed to the election of the said Field, namely, Dwight Fosgate and John Shepard. These persons voted at said Western, at the last election for governor, and their names were struck off from the list of voters without notice to them, and without good reason, as the committee are unanimously satisfied, from the evidence exhibited to them. The said Dwight Fosgate and John Shepard made application to the selectmen to vote at said election, but were refused: and the committe are all satisfied, that the selectmen did net give the inhabitants a fair and reasonable opportunity to prove their qualifications as voters, before this election. And the committee further report, that the votes of the nine persons first named, being deducted from the whole number given, -would reduce it to one hundred and fifty-nine, to which should be added the two votes illegally rejected, namely, of the said Dwight Fosgate and John Shepard, which would have made the whole number of legal votes at said election, one hundred and sixty-one ; necessary to make a choice eighty-one ; that the said Field, the sitting member, (deducting the nine illegal votes given,) would have only seventy-nine. Wherefore, the committee are unanimously of opinion, and do report, that the said supposed election of the said Joseph Field, was utterly void, and that his seat ought to be declared vacated.”
33 J. H. 32.
Same, 213. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502468/ | The election of John Wade, returned a member, (being the second chosen) from Woburn, was controverted by Wyman Richardson, and others, on the ground, that the said town was not entitled, by the number of ratable polls therein, to send two representatives.1
The committee on elections made the following report, in this case, namely ; —
“ The election is controverted on the ground, that the town of Woburn did not contain a sufficient number of ratable polls to entitle it to two representatives. A majority of the assessors of said town have produced a list of the persons they considered to be ratable polls, containing three hundred and ninety-four names. Among these are the names of nineteen persons, all of whom, the committee are unanimously of *153opinion, are not ratable polls, within the meaning of the constitution ; and in addition to said nineteen, there are contained, on said list, the names of three persons, who are town paupers, which the committee unanimously consider not to be ratable polls. If the three town paupers should be considered to be constitutional ratable polls, the town of Woburn, at the time of the aforesaid election, did contain 375 ratable polls, or just sufficient to entitle it to send two representatives. If the three town paupers are rejected, the town contained only three hundred and seventy-two ratable polls, being three short of the number required by the constitution to entitle said town to send two representatives.
On the above facts the committee are unanimously of opinion, and do report, that the supposed election of John Wade, Esq., at said Woburn, on the first Monday in May, now last past, was utterly void, and that he is not entitled to a seat, and that the same be declared vacated.”
This report was recommitted, and on the nineteenth of June, the committee again reported, as follows: —
“ That, upon additional evidence being submitted to them, they are unanimously of opinion, that the names of three ought to be considered added, after the deductions made in the first report, and this without taking into consideration the town paupers; therefore, that the town of Woburn did, at the time of the election of the said John Wade, Esq., contain three hundred and seventy-five ratable polls, and that he is entitled to his seat.”
The report was agreed to.1
33 J. H. 42.
33 J. H. 233. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502470/ | The election of Abijah Draper, Crowell Hatch, William Brewer, and Lemuel Le Baron, members returned from the town of Roxbury, was controverted by Thomas Williams and others,1 for the following reasons alleged in their petition, namely: —
1. That the meeting for the choice of representatives in said town was not notified according to law, or the accustomed manner of warning town-meetings therein ;
2. That a motion being made and seconded, in the meeting, that the town should send but two representatives, the selectmen refused to put the question or to suffer debate thereon ; and
3. That the meeting was conducted with a degree of violence and disturbance, utterly inconsistent with the freedom of debate and of elections; subversive of the rights of the citizens, and of the most dangerous and fatal example.
The election was supported by a memorial of Samuel Gore, *158and others,1 in which they alleged that the statements' in the petition were totally groundless, and that in their opinion, the selectmen conducted the said meeting in a constitutional and impartial manner.
The facts in the case are stated in the following report of the committee on elections, which was made on the tenth of June, and agreed to'on the next day, by a vote of 169 to 73 :—
“ A town meeting for the ‘choice of one or more meet person or persons to represent that town in the general court,’ was holden on Wednesday the twelfth day of May, now last past, pursuant to warrants issued by the selectmen, purporting to be dated the fifth day of the same May. These warrants were delivered to the constables from the fifth to the ninth, and were all returned on the tenth of the same month. Most of the notifications (all of which were printed) were left at the houses of the inhabitants in each parish, on Monday the tenth.
The committee further report, that notice of the meeting was very generally given in the manner aforesaid, and that it was fully attended.
By a law of the commonwealth, passed on the 23d of March, 1786, (st. 1785, c. 75, § 5,) it is enacted, that the manner of summoning the inhabitants to a town meeting shall be such as the town shall agree upon. It does not appear on the records of Roxbury, that the town has ever passed a vote, establishing the manner in which its meetings should be called ; and upon investigation, there did not appear any uniform usage in said town as to the manner. It did appear, that in the greater number of instances, the inhabitants have had seven days’ notice at the least; but in several instances within the last ten years, the warrants have been dated, and the notifications served, quíte as late before the meeting as in the present instance.
There being neither vote nor usage in the town establishing the method of calling and warning its meetings, the committee were left to deckle if reasonable notice were or were not given; and the opinion of the committee is, that in the circumstances *159of the ease, the notice was reasonable, and that the first allegation in the petition is not supported.
The committee further report, that immediately after the warrant was read, and the meeting was opened, the selectmen informed the inhabitants, that the town contained a sufficient number of polls to entitle it to send four representatives, and called on the voters to bring in their votes for from one to four; that immediately a motion was regularly made and seconded, that the 1 town should send two representatives and no morethat for several days previous to the meeting, the expense, to which the town might be subjected by sending its full number of representatives, had been a subject of conversation ; and that several of those, who had a wish to lessen the number and the expense, came to the meeting with an intention of making, or causing a motion to be made, to that effect, and to support the motion by demonstrations, resulting from calculations of the saving to the town by sending two instead of four, and by arguments derived from other sources.
The committee further report, that previous to the town meeting, the selectmen met and determined they would not put any motion as to the number the town would send, and that they would not permit any debate on such motion ; and this determination was not made known to the inhabitants, until the day of the election, and in the manner hereinafter set forth.
The committee also report, that as soon as the aforesaid motion was made by Mr. Ebenezer Bugbee, and seconded by-others, the chairman of the selectmen said: ‘ that motion cannot/ or ‘ shall not be put.’ Several asked why ; when Gen. Heath rose, and, addressing the chairman, observed the motion could not be dispensed with ; when he was interrupted by the selectmen, some of whom said the motion would not be put, and the chairman read to the general part of the constitution, to convince him that the selectmen had a right to regulate and govern the meeting, and then said the voters were to bring in their votes for from one to four representatives, and that the sense of the town could be taken in that method better than in *160any other, and that was the way on which they had determined; and the chairman added, that they were ready and willing to take the consequences, if they were wrong. Gen. Heath insisted with earnestness on the right of the people to debate the question, and objected to the method the selectmen pointed out. He was opposed with warmth by some of the selectmen, who denied the right to debate, and insisted on their method, -when the general desisted from any further attempt to speak on that motion. He was followed by Capt. Jonathan Dorr, who also claimed for himself, and his fellow-citizens present, the right of debating and deciding the motion in the usual manner; and produced a paper containing calculations to demonstrate to the town the additional, and, (as it appeared to him,) useless expense to be incurred by sending four representatives ; when he was told by the selectmen that his calculations were founded on the expenses of 1811, and that 1811 had nothing to do with 1813. The selectmen and others declared him out of order, and the chairman observed they came there to vote, and not to debate ; and repeated the call to bring in votes for from ‘ one to four.’ Mr. Dorr insisted on his right to speak, with earnestness, declaring he had a right to be heard, and he would be heard ; and the selectmen persisted in the denial, and insisted on their right of regulating and governing the meeting in the way in which they had determined, with much warmth ; when there was a cry from the body of the hall ‘out with him — down with the peace party.’ Great confusion and much hustling and crowding took place, particularly in the centre of the hall. Sticks were raised, whether for offence, or defence, or both, the witnesses could not determine. Two men were seen having each other by the collar, and a violent scuffle ensued between them and others. Pending this riot, several leaped from the windows, and many left the hall by the doors. Several retired to remote parts of the hall to prevent being involved in the turmoil; of these was Gen. Heath, who retired, as ‘for an asylum,’ to the selectmen’s box, and was by one of them assisted over the railings; and took his seat ‘on the right, and *161in tlie rear,’ of the selectmen. The confusion still continuing, a motion was made by David S. Greenough, Esq., for the meeting to be adjourned until the next Monday, (the 17th,) which was seconded by others, and refused to be put by the selectmen, one of them assigning as a reason, that there were votes in the ballot boxes.
The committee further report, that debate on Mr. Bugbee’s motion was prevented in manner aforesaid, but that no assault or violence to the person of Capt. Dorr was offered cither by the selectmen or any others; that the selectmen were very loud and frequent in their calls on the peace officers, and for order. The committee also report, that a majority of the selectmen, from the time Gen. Heath was prevented speaking in manner aforesaid, until after the motion for an adjournment was made and refused to he put, were under the influence of much passion ; that one of them, in a very angry and threatening manner, shook his fist in the face of Thomas Williams, Jr., Esq.; and three of them faced to the rear, towards Gen, Heath, while he was sitting quietly, and shook their fists and hands near his face, in an angry manner, exclaiming: ‘ General this is your doing; this is your peace party.’
The committee further report, that at the choice of representatives by said town the last year, a motion to send two was then made, and the selectmen refused to put the question, and suggested the same method for deciding it which they did this year; and the motion and suggestion then passed without further notice.
The committee further report, that the confusion and difficulty arose from the refusal of the selectmen to put the motion of Mr. Bugbee in the usual form, and from their denying the voters the right of debate ; and that several left the meeting from fear of being personally injured; that others left it in disgust; and that several, who remained, refused to vote, being also disgusted at the proceedings, considering them unconstitutional and illegal. The selectmen, however, received ballots from those present, who chose to vote, counted them, and declared the four sitting members chosen.
*162The committee further report, that it has been decided by a former house of representatives, in effect, that the right of sending representatives is corporate, vested in towns; and the right of choosing them, that is, of designating the individual or individuals, to be the representative or representatives of a town, is personal, and vested in those qualified by the constitution to vote for representatives. The same principle is recognized and settled by the supreme judicial court, in a late decision made on a question submitted, and on which their opinion was required by a former house of representatives; so that the principle must not only be considered as settled by the practice of the house of representatives, but it is the established law of the land.
The warrant in this case was for the purpose of choosing one ox more representatives; and whether the town would send one, two, three or four representatives, or not send any, might have been questions, each of which, the corporators, or the legal voters in town affairs, were to decide; and to decide after reasonable debate and fair discussion, if any such debate or discussion were offered. It does appear to the committee, that by our .constitution and laws, the right of such debate and discussion cannot be denied, or the exercise of it prevented, without trampling on both.
The committee would further remark, that waiving, for the present, all consideration of the selectmen of Roxbury having refused to hear debate on the motion to send two representatives, the mode they enjoined on the voters to pursue is highly objectionable. The motion before the town was, to send two representatives, and no more. The mode ordered by the selectmen was, for the voters to bring in their ballots, having from one to four names on them, at each voter’s pleasure; and this, according to the selectmen’s declaration, would decide whether it was the sense of the town, to send two or four. It is obvious great embarrassment and much unfairness would be caused by this; for each voter would have to determine on the number he would send, and the person or persons he would designate, at the same time. Whereas, if the number to be *163sent were first settled by the town, the choice of the individual or individuals, to be representative or representatives, could, with much more facility and fairness, be made by each qualified voter. Besides, by pursuing the mode of the selectmen, several questions might have been decided, neither of which were before the town.
To these objections, must be added, the one arising from the circumstance, that the question, whether the town will send a representative, or how many it will send, involves, as before observed, a corporate right, which must be exercised, and the decision made by the corporation, or those qualified to vote in town affairs : but the right of designating who the representatives shall be, is vested, as before shewn, in those qualified by the constitution to vote for representatives. These several qualifications being very different, great injustice may follow from permitting either of the classes of qualifications to govern the other, excepting when they are blended in the same individual.
And inasmuch as it does not appear to the committee, how many representatives the town of Roxbury would have voted to send, had the question been fairly submitted to the cor-porators, and been permitted to have been reasonably debated and discussed; and inasmuch as it does appear, that from the unconstitutional and illegal refusal of the selectmen of Rox-bury to submit the motion to send ‘ two representatives and no more,’ to the disposal of the qualified voters in town affairs, and from their refusal to permit debate and fair discussion of that motion, much confusion and tumult did ensue, in which a majority of the said selectmen did participate; and inasmuch as many of the voters left the meeting from fear of personal injury, and from disgust; and others, who remained at the meeting, refused to vote, lest they might be considered as countenancing unconstitutional and illegal proceedings : It is the opinion of the committee, that the election aforesaid was not free; and where freedom is not, there can be no choice. And whereas, on the freedom and purity of our elections, the welfare and happiness of the people essentially depend, the *164commítttee are compelled to report, and do report, that the supposed election of Abijah Draper, Crowell Hatch, William Brewer, Esquires, and Dr. Lemuel Le Baron, is altogether void and of no effect, and that their seats in this house be declared vacated.”
In debate upon the foregoing report, much was said about the different qualifications of those who might vote on the question whether a town should send any representatives, and how many ; and of those who might vote in designating the person or persons to represent a town. But since the statute of 1.813, c. 68, § 6, has abolished this distinction, if it ever existed ; it has been thought proper to omit the discussion of this point. By that statute it is enacted, 4 that the qualifications of voters in any town, on any question whether such town will send a representative to the general court, and on all questions involving the number of representatives such town will send, shall be the same in all respects, as are required by the constitution, to entitle a person to vote in the choice of an individual or individuals, to be representative or representatives in the general court of this commonwealth.5
The above report was opposed by Messrs. Brewer and Draper, of Roxbury, Green, of Berwick, Endicott, of Dedham, and Hall, of "Williamstown; and supported by Messrs. Otis, Whitman, and Sumner, of Boston, Tillinghast, of Taunton, Crosby, of Brookfield, Reddington, of Tassalborongh, and Manning, of Gloucester.
Against agreeing to the report, it was said the selectmen had a discretionary power to order the question, concerning the number of representatives the town would send, to be determined in any manner they pleased, provided the voters were not deprived of their corporate! or individual rights; that in this case the manner chosen by the selectmen was perfectly fair and correct, inasmuch as the number voted for by a majority of the electors would be the number which the majority wished should represent the town; and therefore, that the selectmen’s refusing to put Mr. Bugbee’s motion did not deprive the electors of an opportunity to determine how many representatives should be chosen. It was said that the mode adopted by the selectmen was the readiest which could be devised; because, if the preliminary question had been taken separately, and it had been voted to send four representatives, yet if votes hod afterwards been given for two only, the town would have had only two representatives ; so if the town had voted to send two representatives, and the votes had been given for four, four would have been legally chosen, as a majority voting for four could, in effect, rescind the previous vote. So that a preliminary vote on the number to be chosen could be of no service, and might lead to confusion and trouble.
It was further said, that the mode which the selectmen adopted was the least objectionable, because some of the voters might not choose to vote openly on the question of how many should be chosen, and it is the policy of the law to enable electors to act freely, and without bias from fear or favor : And as no corrupt intention was proved upon the selectmen, the town ought not to be disfranchised for their mistake, even allowing that they had mistaken the proper course, in regard to the manner of ascertaining the sense of the town as to the number of representatives to be elected.
It was also said by one of the gentlemen, whose seats were in question, that the town of Roxbury had a right to send four representatives, and that the constitution requires of every town which has the right, that it exercise that right; and that the selectmen could not take away the rights of the town, and were justifiable in their refusal to become accessary to any attempts of others to take them away.
*165On the other hand, it was said that the constitution is not imperative as to the choice of more than one representative, hut leaves it to the discretion of the town : And even the right to choose one is a corporate right, and the duty, if it may be so called, of choosing one or more, is a corporate duty. The right is to be exercised and the duty performed by the corporation. According to the supreme judicial court, “ the right of sending representatives is corporate, vested in the town: and the right of choosing them is personal vested in the legal voters ; because the right of sending a representative is corporate, if the town by a legal corporate act vote not to send a representative, none can be legally chosen by a minority dissenting from that vote.’ 1 It was said to follow of necessity from this opinion, that if the town of Roxbury had voted to send only two representatives, four could not have been afterwards elected, unless the vote had been formally reconsidered. This, it was said, was a complete answer to the suggestion, that the preliminary vote would be rescinded by the ballots being-given for more than the town had voted to choose, and also showed that the selectmen, if they refused to put Mr. Bugbee’s motion, for the reason suggested by the member returned from Roxbury, acted under an entirely false and erroneous impression. The corporation alone was competent to decide whether to exercise its corporate right at all, and how to exercise it.
This doctrine, it was said, was further confirmed by a statute passed April 20th, 1781, (statute 1780, c. 26,) and now repealed, which required the selectmen to call meetings in the month of May, for the purpose of choosing one or more representatives, agreeably to the constitution, and also by the phraseology of the statute of 1705. c. 55, now in force ; by which it was enacted, ‘ that the inhabitants of every corporate town, having a right to choose a representative or representatives in the legislature of this commonwealth, shall be convened for that purpose,’ &c.
It was asked, who is to determine the number to be sent ? Neither the constitution nor the law has given this power to the selectmen. It must, therefore, reside in the corporation, and be exercised by the corporation.
In answer to the argument, that the number voted for, by the majority voting, would be the number which the town chose to send, and that the votes would determine the question; it was said, that besides the embarrassment, unfairness, and confusion, pointed out by the committee, in the report, it was evident, that it never could be ascertained, that the town, after a full hearing and discussion of Mr. Bug-bee’s motion, would have determined, in any manner, to have sent four representatives ; and above all, it was demonstrable, that the method adopted and enforced, by the selectmen, was fallacious. Suppose 300 electors give in their ballots ; 100 vote for A, B, C, and I) ; 100 vote for A and B ; and 100 vote for C and D. According to the selectmen’s notion, two-thirds of the voters would be in favor of sending but two representatives, and yet each of the candidates voted for would have two-thirds of the votes, and there would be no possible way, in which the selectmen could legally refuse to return the whole number to the general court.
So if three-fifths, or any greater proportion of the voters, had wished not to send any representative, the method pursued by the selectmen would have enabled the smallest minority to .make the choice, unless the electors present, instead of those who vote, should be taken into calculation; in which case, might he seen the awkward and farcical exhibition (for example) of two hundred and ninety-nine members of a corporation, which contained six hundred electors, voting for three representatives, and the presiding officers, thereupon gravely determining that it was the vote of the town not to send any representative.
*166But allowing, for argument's sake, that the plan adopted by the selectmen would have led to a correct result, still it was urged, that their refusing to put a motion, which was proper in itself, and made at a proper time, and in a proper manner, was such an arbitrary, illegal, and unconstitutional act, as would vifiate all the subsequent proceedings which were connected with it; that it was an example, which it was the sacred duty of *the legislature to discountenance and condemn; that it rather befitted the conclave of a Spanish inquisition, or the ‘ dumb legislation’ of a celebrated assembly in France, than the legally appointed meetings of the citizens of a free republic.
34 J. H. 36.
34 J. H. 61.
7 Mass. Rep. 526; ante, 120. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502638/ | Papers in File: [None] | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502640/ | Papers in File: [None] | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502471/ | The election of Samuel Leighton and John Hammond, members returned from the town of Elliot, was controverted by Joseph Hammond, Jr., and others,1 for the reason stated in the following report of the committee on elections :—
“ The only objection, stated in the petition against the election of the members in question, is, that the selectmen were not sworn previous to issuing their warrant for calling the town-meeting, at which the said Leighton and Hammond were chosen on the 3d day of May last. But the committee, on examination, find that the selectmen were duly sworn on the said third day of May, previously to their opening the meeting in said town, for the choice of representatives, which, in the opinion of the committee, was in due season.
Wherefore the committee ask leave to report, and do report, that the said Samuel Leighton and John Hammond, Esquires, are entitled to seats in this house.”
The report was agreed to.2
Note. This report and decision give a construction to the statute of 1805, c. 26, which, if not warranted by the letter, is conformable to its spirit. This is the only statute, which requires that selectmen shall be under oath. By the 4th section, “ the selectmen of the several towns, districts, &c.,” are *167required, “ before entering on the execution of their office, to take an oath, or affirmation, before some justice of the peace, or clerk of the town, &c., faithfully to discharge the duties of their office, respecting all elections and the returns thereof,”
This statute is entitled “an act in addition to the several acts regulating elections,” and the oath prescribed for selectmen, it will be observed, relates exclusively to their “ duties respecting elections, and the returns thereof.” Taken strictly, the statute doubtless requires that they shall be sworn before they proceed to act in their office at all. But as they have many duties which they do not perform on oath, no good reason can be assigned, why they should not be able to discharge them, without first being sworn to the faithful performance of others. The house, therefore, gave this construction to the statute ; that selectmen, before they enter on the execution of the duties of their office respecting elections, must be sworn.
In this case, the warrant was issued for calling the meeting, before the oath was administered to the selectmen; but a defective warrant would not be cured by the selectmen’s oath of office. It stands on the town record, and, if illegal, vitiates all the proceedings of the meeting. In framing and issuing a warrant, there is no room for the partiality or corruption of selectmen to operate, and yet evade the law. For this purpose, therefore, there seems to be no more reason that they should be under oath, than that an attorney should be under oath in order to frame a writ and declaration. Far otherwise is it, when they preside at elections, judge of the qualification of electors, and make returns.
34 J. H. 53.
Same, 98. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502472/ | The election of David Goodwin, Thomas Harris, William Austin, and John Soley, members returned from the town of *168Charlestown, was controverted by Abner Rodgers and others, on the ground, that illegal votes were received, and that it did not appear that the members returned had a majority of the votes given in, at the said election.1
On the eleventh of June,2 the committee on elections made the following report in this case3: —
“ At a meeting'of the inhabitants of said town, duly notified and warned, on the third day of May now last past, for the choice of representatives, the selectmen called upon the qualified voters to bring in their votes for live persons, to represent said town in this general court. After the poll was closed, the selectmen proceeded to sort and count the votes, and made declaration that they were as follows: — For David Goodwin, 322 votes; Thomas Harris, 322; William Austin, 321; John Soley, 321; Daniel Tufts, 319; Joseph Miller, 320; Joseph Hurd, 320; Nathaniel Austin, Jr., 320; Joseph Tufts, 320; Timothy Walker, 318; Timothy Thompson, 1; Elias H. Derby, 1: and the selectmen also declared, that the said David Goodwin, Thomas Harris, William Austin, and John Soley, were chosen.
The committee ascertained by testimony, and by the agreement of the parties, that the selectmen obtained the above result by adding together all the above numbers, which made 3205, and dividing that aggregate by five, the number of persons to be voted for as representatives. It appeared, therefore, by this mode of calculation, that there were six hundred and forty-one electors who voted. The selectmen assumed this last number as the true number of electors, and finding that three hundred and twenty-one was a majority of the assumed number, made the declaration before stated.
The committee also ascertained, by full and satisfactory evidence, and by the agreement of parties, that a number of electors gave in ballots, having on them a less number of names than five, and that there were sixty-five names, a part of the above aggregate, given in on ballots, containing a less number than five; that there were six hundred and twenty-*169eight full ballots, that is, ballots containing five names each, which were given in by six hundred and twenty-eight electors ; that there were two ballots given in by two electors, containing two names only on each ballot. The four names, thus given in, deducted from sixty-five, leave sixty-one names to be accounted for, which were borne on ballots containing less than five names each. The necessary result of calculation is, that those sixty-one names could not have been voted for by a less number of electors than sixteen. Adding, then, to the number of electors who voted with full ballots, to wit, 628, the number who must have voted with ballots containing less than five names, to wit, 18, the result is, that 646 electors, at least, actually voted at the choice of representatives by the town of Charlestown, on said third day of May; of which number 324 are necessary to make a choice. And inasmuch as no one of the said sitting members had that number of votes, the committee are of opinion, and do accordingly report, that the said David Goodwin, Thomas Hams, William Austin, and John Soley, Esquires, are not legally chosen, and are not entitled to seats in this house, and that the same be declared vacated.”
'When this report was taken into consideration:
Mr. Harris contended, that the selectmen adopted the only method which would lead to a correct result. He said the sitting members had each a majority of the votes, though not a majority of the ballots. He thought those electors, who were called upon to vote for five persons to represent the town, and who voted only for one, waived four-fifths of their right, and ought to have credit only for the remainder, in making up the result. The same principle would apply to those, who voted for more than one, and less than five.
Mr. Harris said that he understood the committee to have determined the choice by ballots instead of votes. To show that this was a fallacious mode, he stated the following case:—
Suppose 323 voters vote each for a list of five candidates, A, B, C, D and E. votes. The aggregate number would be ----- - 1615
Suppose 323 others vote each for only one, but for different candidates ; viz. 64 vote for F — 64 for G — 64 for H — 64 for I — and 67 for K. - - - 323
As each of the first five candidates has 323 votes, and the others only 64 each, except K, who has 67 — or, as the first five have 1615 votes, and the other five only 323— it is clear, and will be allowed, that the first five have a majority of the votes, and are chosen. Yet they have not a majority of the ballots. They have, however, a majority of 259 vetes over F, G, H and I: and a majority of 256 over K.
*170This, Mr. Harris considered as conclusive, to show that the number of ballots is not the criterion, by which the question should be decided.
Mr. D. Sargent, in reply, observed that the selectmen committed an error in adopting the number 5 as a divisor in this case. He said it might sometimes be difficult to ascertain what the divisor ought to be ; but in taking the number of ballots as a rule to determine the choice, there could be no mistake. According to the gentleman’s doctrine, that each of the sitting members had a majority of votes, and were therefore legally chosen, it would be easy to show, that cases might happen, in which a number of rival candidates would all have a majority of votes: for instance, 50 voters give in their ballots for five candidates each, A, B, C, D and E — and 50 others for four candidates each, F, G, H and I — the whole number of votes would be 450. Divide this number by 5, and the quotient will be 90. Of course, 46 would be said to make a choice; and each of the candidates having 50 votes, they would all be declared chosen.
As to the example put by the gentleman, in which he thought it so clear that the first five candidates would be chosen; it is true they would have a plurality of votes, or each of them a greater number than either of the opposite candidates ; but as 323 electors voted for one list, and 323 against it, or for the opposite list, how could it be said they had a majority ? If a plurality of votes is to make a choice, then a candidate having two votes would be chosen, though other candidates, however numerous, should be voted for, provided they had but one vote each. But if, as is probable, it is meant, by a majority of the votes, that a certain number of candidates, on the list, had collectively a greater number of votes than certain other candidates, on another list; it would then follow that a large number of candidates, each having one vote only, would be chosen; while a smaller number of candidates, each having more than one vote, would not be chosen. In the Charlestown election, for instance, if 120 of the electors had voted for a list of five persons, A, B, C, D and E, and the remaining 525 electors had each voted for only one person, no two voting for the same, it would then be said, according to this principle, that the list of five were chosen, because they had a majority of the votes. If 300 of the electors had voted for a list of five each, and the remaining 346 for another list of four each ; the five would also, in this case, be declared chosen, and the four not, according to the last mentioned principle. But according to the rule adopted by the selectmen, all the nine candidates, in the last instance put, would be elected. The whole number of votes would have been 2S84; this number divided by 5 would give a quotient of 576 and a fraction; necessary to make a choice, 289; which is a less number than any ¡of the candidates had. A method which leads to such absurdities, must be wrong.
Mr. Reddington said he considered this case settled by the determination of the house in 1809, in the case of the petition of John Whiting and others, against the election of Messrs. Ware and Mann, who were returned as members from the town of Wrentham.1 In that case, the two members returned had a number of ballots containing both their names, and a number containing only one of their names. Another candidate’s name was found on other ballots. The selectmen severed the names, where they found them on one ballot, before they counted the votes, so that the whole number of ballots, or persons voting, could not be ascertained.
The members’ seats were declared vacated, because it could not be known whether they were voted for by a majority of the electors.
The present case is stronger than that; for here the house know, that no one of the members, whose seats are in dispute, had such a majority.
*171The report was agreed to; 163 in the affirmative, 7 in the negative.
“ The principle on which the house made its decision,” in this case, seems to be simply this; that members returned, must be voted for by a majority of the electors who vote at the choice.1
34 J. H. 23.
Same, 129.
Same, 134.
Ante, 70, 71.
One of the members, whose election was in question, in this case, appears to have participated in the debate, without afterwards withdrawing from the house; contrary to the rule of parliamentary practice, which requires a member to withdraw, when matters are under discussion, in which he is personally concerned. The member is allowed to remain until the matter is distinctly before the house, either in the form of a question or otherwise; he is then to be heard in his place, and to withdraw from the house, until the subject be disposed of. In England, this rule does not now apply to the case of a controverted election, in the house of commons; the report of the committee thereon being made final and conclusive by statute, without the intervention of the house. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502473/ | The election of Thompson Burrill, Asa T. Newhall, Richard Breed, Parker Mudge, James Hawkes, and Eleazer C. Richardson, members returned from the town of Lynn and the district of Lynnfield, was controverted by Amos Rhodes and others, on the ground that the said town and district did not contain a sufficient number of ratable polls to entitle them to six representatives.2
The consideration of this case was referred to the January session,3 at which time the committee on elections reported4: — .
“ That the only cause stated in the petition against the election of the sitting members is, that the said town and district did not contain twelve hundred and seventy-five ratable polls, the constitutional number required to entitle the said town and district to elect six representatives.
The petitioners, in support of their allegation, insisted, that transient persons, who came into said town and district a few *172days previous to the first day of May last, and let themselves to labor there for a few months, and immediately after their service returned to their homes in other towns and other states, were not ratable polls. But, inasmuch, as the committee are of a different opinion, and as by adding all such cases to the numbered undisputed ratable polls, the result will exceed the constitutional number, the committee report, that Thompson Burrill, Asa T. Newhall, Richard Breed, Parker Mudge, James Hawkes, and Eleazer C. Richardson, were duly elected members, and are entitled to seats in this house.”
The report was agreed to.
34 J. H. 9.
Same, 153.
Same, 377. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502474/ | The election of John Bailey, Joshua Prentiss, Jr., William Story, James Smith, Richard Prince, Jacob "Willard, and Samuel W. Phelps, members returned from the town of Mar-blehead, was controverted by John Hooper and others, on the ground, that the said town was not entitled, by the number of ratable polls therein, to send seven representatives.1
The petition in this case was presented at the January session,2 and on the twenty-fourth of February, the committee on elections reported thereon, as follows :■—
“ That a meeting of the inhabitants of said town was holden on the thirteenth day of May last past, for the purpose of choosing representatives from said town to the general court, at which meeting, the said inhabitants did choose, at one balloting, the members returned as representatives of said town.
In this case, the assessors of the said town and the sitting members produced, before the committee, lists of all the persons in said town, whom they alleged to be ratable polls, on the *173first day of May last. The said lists contained the names of sixteen hundred and fourteen persons. Respecting ninety-seven of the said names, the committee believe there can be no dispute; and that they ought not to have been borne on the said lists; that a further number of seventy-four are persons, who, on the first day of May last, were in the service of the United States, as seamen and soldiers, and who had enlisted before that day, and the greater part of whom still continue in said service. The committee, being of opinion, that such seamen and soldiers were not ratable polls in said town of Marblehead, added their number to the number of ninety-seven, above mentioned, making in the whole one hundred and seventy-one names, to be deducted from the number claimed as aforesaid ; leaving the number of fourteen hundred and forty-three ratable polls in said town of Marble-head on the said first day of May. And inasmuch as fifteen hundred ratable polls are required by the constitution, to enable any town to choose seven representatives in this house, and as the town of Marblehead did not contain that number, the committee are unanimously of opinion, and do accordingly report, that the said supposed election of John Bailey, Joshua Prentiss, Jr., William Story, James Smith, Richard Prince, Jacob Willard, and Samuel W. Phelps, was void, and that their seats ought to be declared vacated.”
The report was read, and after debate thereon, it was ordered, that the subject subside for the present.
Mr. Willard, of Marblehead, then submitted the following order, which was assigned for consideration the next day, and in the meantime, committed to the committee on elections.1
“ Ordered, That the justices of the supreme judicial court be requested as soon as may be, to give their opinion on the following questions, namely:—
Whether citizens of the United States, belonging to any town in this commonwealth, and having families, property, or their birth or legal settlement therein, by entering the military or naval service of the United States, either as officers, non-com-*174cominissioned officers, or privates, do thereby become exempt from poll taxes ? and whether they thereupon cease to be ‘ ratable polls,’ within the intent and meaning of the constitution of this commonwealth; and whether a representation, predicated upon a competent number of ratable polls, including some of the above description, is unconstitutional? and whether the assessment and collection of taxes against such persons, provided the same be made without personal arrest, is unlawful or actionable ?”
On the twenty-fifth of February, the report on the Marble-head election was again taken up, and the consideration thereof again ordered to subside for the present.
A committee was then appointed to consider, whether any and what provision ought to be made by law, to prevent those persons from voting, who have enlisted into the military service of the United States, in towns in which such persons would not, by the constitution and laws of the state, have a right to vote, if not so enlisted.1 This committee do not appear to have made any report.
On the twenty-eighth of February, the last day of the session, the committee on elections reported, that it was not expedient to submit to the supreme judicial court the questions proposed by the member from Marblehead.2
34 J. H. 161.
Same, 377.
34 J. H. 378.
34 J. H. 383.
Same, 405. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502475/ | Mr. Whitman, of Boston, moved, that a committee be .appointed to inquire whether the Rev. Daniel Merrill, the member from Sedwick, in the county of Hancock, is entitled to hold his seat; he having since his election removed into the state of New Hampshire, and become an inhabitant of that state, The consideration of this motion was referred to the next day, at which time it was withdrawn by the mover,1
34 J. H. 240, 245. See the cases of John Shepley, member from Fitchburg, 1825-26, and of Emory Burpee, member from Sterling, 1838. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502476/ | The election of Leonard Hathaway, the member returned from the town of Dighton, was controverted by William Bay-*176lies and others, on the following grounds, alleged in their petition, namely:-
That the meeting was conducted illegally and fraudulently; that the selectmen kept it opon one hour and more, after they had sorted and counted the votes, and during that period received several additional votes ; that they destroyed several votes ; that after counting the votes, they returned them into the box, apparently with an intention of counting them again ; that they rejected one legal voter; and that several persons put into the box more votes than one.
The committee on elections, on the eighth of June, reported on this case as follows1:-
'• A town meeting was legally holden in said town, on the ninth day of May last, for the choice of a representative to the present general court; at which the selectmen of said town proceeded to receive votes, and did receive two hundred and fifty-four votes, and declared that Leonard Hathaway, the sitting member, had one hundred and twenty-seven votes, and Nathaniel Wheeler one hundred and twenty-seven votes, and that there was no choice.
The committee further find, that the selectmen received the vote of a Mr. Tubbs, and refused to receive the vote of one Ebenezer T. Lincoln, which was for Nathaniel Wheeler, on the apprehension that lie had not the property req uired by the constitution, to entitle him to vote in said election. The committee are satisfied that Mr. Tubbs was not legally qualified to vote in the said election, he not having been a resident in said town for one year next preceding ; but they are of opinion, from an inventory of the property of said Lincoln exhibited, that he was constitutionally qualified to vote in the choice of a representative.
The committee further find, that, on the declaration being made by the selectmen, that there was no choice, they proceeded again to receive votes for a representative, which, on being sorted and counted, were for Leonard Hathaway one hundred and thirty-six votes, and for Nathaniel Wheeler one *177hundred and thirty-four votes, and that Leonard Hathaway was declared chosen, ‘ if the meeting was legal.’ The committee, however, have strong reasons to believe, from the depositions of sundry persons present at said meeting, that several persons voted twice, either intentionally or by mistake, at said balloting, whereby it is rendered wholly uncertain whether the said Hathaway had a majority of the votes of the voters then voting in said election. And inasmuch as it is thus uncertain from the foregoing statement, whether a majority of the legal voters present at said meeting, and voting in said election, were for the said Leonard Hathaway, — as well as for the reasons first stated, — the committee ask leave to report, and do report, that the supposed election of the said Leonard Hathaway is void, and that he is not entitled to a seat, and that the same ought to be declared vacated.”
The report was agreed to, by a vote of 99 to 8.
Nathaniel Wheeler, the candidate voted for as abovemen-tioned, then (on the same day) petitioned the house that he might be admitted to a seat, on the ground, that he had been duly elected.1
The commitree on elections, to whom his petition was referred, reported at the January session following, that no evidence had been produced before them to show that the petitioner had been elected a member from the town of Dighton, and, therefore, that he have leave to withdraw his petition.2 The report was agreed to.
[The committee having found that one vote was to be added to the whole number, at the first balloting, and one to be deducted therefrom, the aggregate would remain the same, and the question would be, for which of the candidates, respectively, these votes were to be counted. Lincoln’s vote would have been given, and was therefore to be counted for Wheeler. If then Tubbs’s vote had been given for Wheeler, and included in the vote counted for him, it being deducted therefrom, Wheeler’s vote would have stood as before, and there would have been no choice. If on the other hand, *178Tubbs’s vote had been given fox Hathaway, and included in the votes counted for him, Wheeler’s vote would have been increased by Lincoln’s vote to 138, and Tubbs’s vote being deducted from Hathaway’s vote, the latter would have been reduced to 136, and Wheeler would consequently have b'-eu elected. When, therefore, the committee, upon Wheel petition, reported, that no evidence had been produced beJ them to show, that the petitioner had been elected, it was probably upon the ground, that he had been unable to pr that Tubbs voted for Hathaway.]
36 J. H. 117.
34 J. H. 118.
Same, 465. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502477/ | The election of James Draper, Jr., the member retur from the town of Spencer, was controverted by Frederic!-. Stowe and others,1 on the ground, stated in the following port2 of the committee on elections, which was made on sixth of June, and agreed to the same day, namely: —
“ The only cause stated in the petition against the eled of the sitting member is, that one Walton Livermore was permitted to vote at said election, who had not resided in s town one year next preceding, and that as said member a majority of but one vote, if said Livermore had not vonni, there would have been no choice.
The committee find, that Livermore removed from Dor-chester to Spencer, with his effects, on the seventh daj April, 1813; that he tarried there eight days, entered ini < • a copartnership in trade, hired a house and store, procured visions for housekeeping; that he was absent from Sp.i-n-cer about one month after the loth day of April, 1813. a part of the time in Dorchester, and a part of the time in Boston, purchasing goods for his store; that he t returned to Spencer, and has resided there ever sine--, *179And the committee are unanimously of opinion, that said Livermore had a constitutional right to vote at such election, and do accordingly report, that James Draper, Jr., Esq., the sitting member, is entitled to a seat.”
Note. By the constitution, chap. 1, sec. 3, art. 4 : “ every male person, being twenty-one years of age, and resident in any particular town in this commonwealth for the space of one year next preceding, having a freehold, ¿fee. — shall have a right to vote in the choice of a representative or representatives, for the said town.”
The words “ resident,” and “ inhabitant,” in the state constitution, are supposed, generally, to have the same meaning. It is so at common law. The question often arises, what constitutes a resident or inhabitant ?
The opinion of the committee, which was confirmed by the house, in the above case, comes precisely within the description of a resident or inhabitant, given by judge Peters, of Pennsylvania, in the case of the United States vs. the Penelope, namely: “ An inhabitant, or resident, is a person coining into a place with an intention to establish his domicile or permanent residence, and in consequence actually resides: under this intention, he takes a house, or lodgings, as one fixed or stationary, and opens a store, or takes any step preparatory to business, or in execution of this settled intention.” — 2 Peters’s Admiralty Decisions, 450.
The constitution provides, that a person shall be considered an inhabitant “where he dwelleth or hath his home.” Walton Livermore was considered, by the committee and house, as dwelling and having his home in Spencer, within the meaning of the constitution, from'the 7th day of April, 1813, to the day of Mr. Draper’s election.
35 J. H. 9.
Same, 102. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502478/ | The election of Micajah Gardner, returned a member from the town of Nantucket, was controverted by William. Coffin and others,1 on the ground, that the selectmen, at the meeting held in said town for the choice of a representative, refused to put a motion regularly made and seconded, that the town should not send any representative, and that, in other respects, the meeting was conducted in an irregular, illegal and tumultuous manner. They also alleged, that it was not warned in the manner prescribed by a vote of the town, passed November 18, 1725-6, and never since varied from, except in one or two extreme cases.
The committee on elections made the following report in this case, on the eighth of June2: —
“ A meeting was holden in said town, on the seventh day of May now last past, for the choice of a representative or representatives from said town to the present general court; the proceedings at said meeting were orderly, until a motion was regularly made and seconded, that the town should not send any representative the present year, and several of the voters attempted to debate on that motion, which the selectmen, by their chairman, prevented, by declaring, that the meeting was not a meeting for debate, and that he could not receive the motion nor permit any debate to be had thereon; alleging that the motion was not contemplated by the warrant nor by the law; and precipitately left his seat and ordered the voters to bring in their votes. This refusal and conduct pro-*181dticed a very considerable degree of excitement in the meeting; the voters insisting upon their right to have the motion debated and decided, and the selectmen persisting in their refusal. The committee further report, that while the voters were insisting upon their rights as aforesaid, the chairman of the selectmen ordered the sheriff of the county to read the riot act, which was read by him accordingly; by which all the persons present were ordered to disperse. There were about four hundred persons present in and about the house, in which the meeting was held, about two hundred of whom obeyed the command of the riot act. While the riot act was reading, and after it was read, the selectmen received and continued to receive votes, (which were, given in a most singular manner, being handed from one to another, until they arrived at the ballot-boxes) and declared Mieajah Gardner to be chosen by all the votes excepting one.
The committee further report, that the disorder and confusion, which took place at the meeting, are to be attributed solely to the unconstitutional and illegal refusal of the selectmen to sustain the motion and hear debate thereon as aforesaid ; and that there was no justifiable cause for ordering the riot act to be read, no riot existing at the time, nor any disorder, except what was produced by the conduct of the selectmen themselves.
After the decisions of the house of representatives,1 and of the supreme judicial court,2 that the right to send a representative is a corporate right, vested in towns, which right, of course, it is at the option of a majority of legal voters, present at a town-meeting for the choice of a representative, to waive or exercise; the committee cannot but express their surprise that the selectmen of Nantucket should have deprived the inhabitants of that town of that right.
The sitting member was not present at said meeting, and had no concern in the transaction.
From the above facts, evincing that the meeting aforesaid was conducted by the selectmen of said town in an an uncon*182stitutional and illegal manner, the committee report, that the supposed election of Micajah Gardner as a representative from the town of Nantucket to this house, on the seventh day of May now last past, was utterly void and of no effect, and that his seat be declared vacated.”
The report was agreed to by a vote of 95 to 6.
An order was subsequently passed, directing the committee on accounts to receive and allow Mr. Gardner’s account for travel as a member of the house.1
35 J. H. 14.
Same, 120.
See the case of Roxbury, 1813-14, ante, 157.
7 Mass. Rep. 526; ante, 117.
35 J. H. 144. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502479/ | The election of Erastus Worthington, one of the members returned from the town of Dedham, was controverted by Samuel Swett and others, on the ground that he was not qualified in respect to property, as required by the constitution.2
The committee on elections, at the January session, made the following report,3 in this case, which was read and agreed to:—
“ The only objection, stated against the said Worthington’s election, is, that he is not qualified according to the constitution, to sit as a member, not having, for one year preceding his election, been seised in his own right of a freehold of the value of one hundred pounds within said town, or any ratable estate, to the value of two hundred pounds ; but inasmuch as no evidence has been produced to the committee by said petitioners showing that he was not constitutionally qualified in that respect: the committee ask leave to report, and do report, that the said Erasteis Worthington, Esq., was duly elected, and is entitled to his seat.”4
Same, 18.
game, 465.
See the case of Pembroke, 1786-7, ante, 21. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502480/ | The election of Hemy Hubbard, returned a member from the town of Lanesborough and the district of New Ashford, was controverted by the selectmen of New Ashford, and by Samuel II. Wheeler and others, on the ground, that at the meeting of the said town and district, for the choice of a representative, the votes of New Ashford were refused by the selectmen of Lanesborough. The seat of Mr. Hubbard was also claimed by Henry Shaw, who alleged himself to have been elected by a majority of the votes given in at the said meeting.1
The committee on elections, at the January session, made the following report in this case, which was agreed to:—
“ That by an act of this commonwealth, passed the 26th day of February, 1781, (st. 1780, c. 20,) a certain tract of land called New Ashford, in the county of Berkshire, was incorporated into a district, by the name of New Ashford, and vested with all the powers of towns in this commonwealth, that of sending a representative to the general court excepted, *184‘but for that purpose had liberty granted them to join with the town of Lanesborough that availing themselves of that liberty, the inhabitants of New Ashford joined with the town of Lanesborough, in the choice of a representative for said town and district, from the time of its incorporation to the ninth of May last, without any objection from said town ; that it was the practice of the inhabitants of said district, who were qualified to vote in the choice of a representative, to repair to Lanesborough, and give in their votes for a representative promiscuously with the legal voters of Lanesborough, till the year 1804, no warrant previously to that time ever having been issued by the selectmen of New Ashford to notify the voters therein of the meeting; that from said time to the present year, warrants have been issued for said purpose, and seasonable notice of the meeting used to be given by the selectmen of Lanesborough to the selectmen of New Ashford until the present year, when no such notice was given ; that the practice has been for the selectmen of both town and district to preside at said meeting, and both to sign the certificate of the person elected.
The committee further report, that, pursuant to a warrant issued by the selectmen of Lanesborough, the qualified voters therein met on the second day of May last, for the choice of representatives ; those of New Ashford met with them for the same purpose. The selectmen of Lanesborough called for and collected the Lanesborough votes, and then handed the hat, with the votes therein, to the selectmen of New Ashford, for them to collect their votes, but on being sorted and counted, there resulted no choice. A debate ensued on the expediency of voting again, but the meeting was adjourned by the joint vote of the town and district, to the ninth day of May following.
The committee further report, that on said day the town and district again met for the purpose aforesaid, and after the meeting was opened, and previously to the votes being called for, a gentleman of Lanesborough proposed to the meeting, that to avoid further difficulty, they should proceed and elect *185both of the candidates for representatives, who had the principal part of the votes of the former meeting. This proposition was objected to by several persons present, upon which the Hon. 'Mr. Hubbel, of Lanesborough, stated, that unless the proposition was acceeded to, the votes of New Ashford should not be received and counted with the votes of Lanesborough in the choice of a representative, as the town of Lanesborough was determined to choose one by themselves, after which the district might choose another without opposition ; this declaration he said he made to the meeting, at the request of a number of gentlemen of said town, among whom were the selectmen, who had previously agreed to pursue this course. The selectmen of Lanesborough then called for the votes of the town, which being sorted and counted, there were for Henry Hubbard Esq., 106 votes, Henry Shaw, 88 votes, scattering 5; they then declared Henry Hubbard, Esq., elected by a majority of 13 votes, and gave the hat, in which they were received, to the selectmen of New Ashford, who collected their votes, and calling on the selectmen of Lanesborough to assist in counting them (which they refused to do) found for Henry Shaw, 41 votes, Henry Hubbard, 4, scattering 1; they then added the votes of town and district together, and declared Henry Shaw elected by a majority of 13 votes, and thereupon made out a certificate of his election, and requested the selectmen of Lanesborough to sign it with them, which they also refused.
The committee further report, that for want of information of the time of the meeting in Lanesborough, no warrant was issued by the selectmen of the district to notify the voters therein, and no notice other than verbal was given them of the meeting.
The committee do further report, that they have examined the act giving liberty to said district to join with Lanes-borough in the choice of a representative, as well as other acts incorporating other districts with similar privileges; and as it has been determined by the justices of the supreme judicial court, that the right a town has of sending a representative is a corporate right, which decision has been recognized by this *186house, so ihe committee consider that the right of a district to join with a town in choosing one must also be corporate, and the legal voters therein must exorcise their privilegi of Young as members of their corporation. And as a corporation cannot legally perform any corporate act unless its members are duly notified and convened, and it appealing to the committee that 1 lie qualified voters in said district, at the meeting aforesaid, were not so convened, no warrant lor notifying said meeiing having been issued by the selectmen thereof, as before mentioned, consequently their votes, in the opinion of the committee, could not legally be received and counted at said election ; but as it appears that Henry Hubbard, Esq., had a majority of the votes of the qualified voters of the town of Lanesborough, duly notified and convened for the choice of a representative, on the said ninth day of May, as before stated, the committee ask leave to report, and do unanimously report, that the. said Henry Hubbard, Esq., was duly elected, and is entitled to his seat.”
Note. The colony charter, granted by Charles I., did not distinctly authorize the freemen of “ Massachusetts Bay,” to elect representatives, but in general terms made it lawful for the governor or the deputy governor and the assistants and freemen assembled in general court, or other court specially summoned for the purpose, to make ordinances and laws for settling forms of government and magistracy, and such officers as they might find “ fit and necessary for said plantation.”
The colonial ordinances respecting representatives, which passed in 1636, ’38, and ’53, and were formed into one in 1658, made it “ lawful for the freemen of every town to choose (by-papers) deputies for the general court.” Then followed a provision : “ No town shall send more than two deputies, and no town that hath not to the number of twenty freemen shall send more than one deputy; and such plantations as have not ten freemen shall send none, but such freemen may vote with the next town, in the choice of their deputies, till this court take further order.” The manner, in which the freemen of such plantations should be warned to meet with those of *187an adjoining town, is not directed in these ordinances. Nor does it very clearly appear, from any of the colony laws, how town meetings were warned. Nothing more definite and particular is to be found, than that it was the duty of the constables of every town, to “ call together their freemen,” to give in their votes for magistrate.
The province charter, granted by William and Mary, ordained that the great and general court or assembly should “ consist of the governor and council or assistants for the time being, and of such freeholders of the province, as should be elected by the freeholders, and other inhabitants of the respective towns or places.” And each town and place was thereby “empowered to elect and depute two persons and no more, to serve for, and represent them respectively, in the said great and general court or assembly.” This charter also gave authority to the general court, “ from time to time, to direct, appoint, and declare, what number each county, town, and place, should elect and depute to serve for, and represent them respectively.” By virtue of this authority, the general court, in 1692, passed an act, which contained the following clause: “ That henceforth every town within this province, consisting of the number of forty freeholders, and other inhabitants, qualified by charter to elect, shall, and hereby are enjoined to choose and send one freeholder as their representative ; and every town consisting of the number of one hundred and twenty freeholders and other inhabitants, qualified as aforesaid, or upwards,may send two such representatives; and each town of the number of thirty freeholders and other inhabitants qualified as aforesaid, or upwards, under forty, are at liberty to send one or not. And all towns under thirty freeholders, may send one to represent them, or join with the next town, in the choice of their representatives, they paying a proportionable part of the charge.” —Stat, 4. of William and Mary, c. 19.
The ratio of representation was subsequently altered, but no new provisions were introduced respecting the union of towns and districts in the choice of representatives.
The statute of 4 William and Mary, cited above, also di*188reeted, that when the governor should see fit to convene a general court, writs should issue from the secretary’s office, directed to the sheriffs or marshalls, commanding them to send precepts, to the selectmen of the several towns, to assemble the freeholders, &e., to elect one or more representatives, according to their numbers ; and the selectmen were directed to preside at the meetings, and to make return, tinder their hands.
A previous statute passed in the same year, had made it the duty of the constables of the several towns, to warn all town-meetings, having a written order therefor from the selectmen.
It does not appear, however, from the province laws, in what manner “ towns under thirty freeholders ” were to be warned, when they chose to “join with the next town in the choice of their representatives.”
But the legislature, under the last charter, incorporated several new towns, “ with all the powers, privileges and immunities of other towns, that of sending a representative to the general assembly only excepted.” In some instances, the new towns were to have no vote in the choice of representatives, as Belehertown, Shutesbury, and Coleraine, incorporated in 1761. In others, a right was granted to them to join with a contiguous town in the choice of a representative, as Great Barrington in the same, year, Wilbraham in 1763, and Fitchburg, in 1764. In these cases, the selectmen of the old towns, with which the new had liberty to unite, were directed to issue their warrant to the constables of the new town, requiring them to notify the inhabitants of such town, of the time and place of meeting for the choice of a representative.
In many instances, under the provincial charter, the legislature incorporated districts, and invested them with all the powers of towns, except that of sending a representative. Some of these districts were left entirely without a voice in the election of a representative, as Ware and Natick. Others had liberty granted them to join for that purpose with a neighboring town, as Oakham, Pepperelborough, South Brim-field, Stoughton. In these cases, the statutes incorporating the *189districts directed the mode in which they should be notified of the time and place of election. The mode was not uniform. In the majority of statutes, which have been examined, the selectmen of the town were directed to issue a warrant to the constable of the district, requiring him to notify the inhabitants of the district. Some statutes directed the selectmen of the town to give notice to the clerk of the district, of the time and place of meeting, who was to set up notifications thereof in some public place in the district. Other statutes directed the selectmen of the town to give notice to the inhabitants of the district.
Under the constitution, the legislature have also incorporated districts, with all the powers of towns, except that of sending a representative. For this purpose, they have, with a few exceptions, (as Plainfield, Bethlehem,) had liberty to unite with an adjoining town. And in all cases that have been found, except that of New Ashford, the statute directs the selectmen of the town, to give notice of the time and place of meeting to the district, and points out the manner. In some cases, they are to issue their warrant to the constables of the district, requiring them to notify the inhabitants; in some, to give notice in writing, to the selectmen of the district, “ to the intent that they may issue their warrant to the constables, to warn the inhabitantsin others, to give similar notice to the clerk of the district.
The act erecting New Ashford into a district was the first of the kind that passed after the adoption of the constitution, and by it, “ the said district is invested with all the privileges, powers and immunities that towns in this commonwealth by law do or may enjoy, that of sending a representative to the general assembly only excepted, but hereby have liberty granted to them to join with the town of Lanesborough for that purpose.” No provision is made in this act, for giving notice to the inhabitants of New Ashford, of the time and place of meeting for the choice of representatives, nor is there any general statute, which provides for such cases.
The constitution secures to “ every corporate town, contain*190ing one hundred and fifty ratable polls,” the right to elect a representative. This right is corporate, and has always been held to be incident to towns incorporated since, as well as those which existed before the adoption of the constitution. And it may be questionable, whether under the province charter, the legislature had authority to prohibit a town incorporated by them, from sending a representative. The charter conferred the right as explicitly as the constitution. And it is not easily perceived, how the right could be legitimately restrained under the former, more than under the latter. Indeed, the provincial legislature, in 1775, declared all such restraining acts, even in the case of districts as well as towns, to be “ against common right, and in derogation of the rights granted by the charter,” With respect to districts, the spirit of the times seems to have carried the declaration too far, — for these corporations had no more rights under the charter, than they have under the constitution, — and it has never been contended that, by the constitution, districts, when incorporated, have of course a right to send a representative to the legislature. It is believed, however, that towns have always had this right, from the time of the first colonial ordinances on the subject.
Had the statute incorporating the district of New Ashford, made it the duty of the selectmen of Lanesborough, in any way, to give notice to the inhabitants of the district, of the time and place of meeting for the choice of a representative, their neglect of such duty might have presented a different question to the consideration of the committee and the house. But as no such legal duty was imposed on them, and as the town of Lanesborough, containing the requisite number of ratable polls, had a right, independently of its connexion with the district, to send a representative ; as the meeting of the inhabitants of the town was legally warned (and no question was made respecting the legality of the adjournment); as it is clear that the inhabitants of the district could not legally vote, without being legally warned ; there seems to be no room for doubt concerning the correctness of the report of the com*191mittee, and the decision of the house. The neglect of the district could not depri ve the town of a right, which the constitution had secured to it, before the district had a corporate existence.
When a town and district unite in the choice of representatives, the practice has been, as far as is known, for the selectmen of both to join in making and signing a certificate and return of the election. This practice has been sanctioned by the house of representatives. In 1812, the return from the town of Brickfield, was not signed by the selectmen of the district of Hiram, which is annexed to that town for the purpose of choosing a representative, and the house directed the member returned, to produce a certificate of the selectmen of the district, in order to hold his seat. And if the inhabitants of New Ashford had been legally warned, the return in the above case, signed by the selectmen of Lanesborough alone, would have been insufficient.
35 J. H. 11.
Same, 420. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502481/ | The election of Daniel Emery, Silas Little, John Osgood, Ebenezer Hale, Josiah Little, and Oliver Pilsbury, members returned from the town of Newbury, was controverted by Nathaniel Emery and others, on the ground, that the manner of voting at the election was such as rendered it impossible to ascertain how many persons voted, and consequently that it was uncertain, whether any or either of the members returned received a majority of the votes.1
*192• At the January session, the committee on elections made the following report! which was agreed to, namely1: —
“ A meeting, duly convened for the choice of representatives from said town, was there holden on the twelfth day of May last; at which it was voted to send six representatives, and also voted, that the votes should be brought in for the same on one ticket. The selectmen presiding received an unknown number brought in that manner, and some with three, four, and five names thereon, and from some voters they received six separate ballots with one name on each; and one voter after having carried in a ballot for one representative, (not knowing the maimer of voting) was afterwards permitted to carry in another ballot, with five names. After the votes were received as aforesaid, they were principally cut and severed, before they were counted.
The committee further report, that from a copy of the record of the meeting, it appears that after the votes were severed as aforesaid and counted, there were for Daniel Emery, 164 votes; Silas Little, Esq., 168; John Osgood, Esq., 127; Col. Ebenezer Hale, 517; Josiah Little, Esq., 109; Major Oliver Pilsbury, 138; John Rollins, 85; Capt. David Little, 22; Capt. Thomas Carter, 24; Moses Little, Esq., 2; Jacob Little, 2; Richard Pike, 5; Nathaniel Moody, 2; Nathaniel Emery, 1; Jacob Morril, 2; John Obrien, 1; Edmund Little, 1; Moses Dole, Jun., 1; Paul Adams, 1. And that the gentlemen having the six highest numbers, in the above list, were considered as chosen.
The committee further report, that by several depositions produced from persons attending the meeting, it appeared to be their belief and opinion, that not more than two hundred persons voted at said election, but they mentioned no circumstances, either by counting or otherwise, which led them to such belief.
The committee do further report, that the irregular manner in which the ballots were received, as also the severing them before they were counted, rendered it impossible to determine the number of persons voting in said election, and thereby *193ascertain what number constituted a majority; and as all elections of members of this house should ever be certain, and it appearing to the committee from the proceedings aforesaid, that it is uncertain whether the members returned were actually elected, not knowing whether each of them had a majority of the votes, the committee ask leave to report, and do unanimously report, that the said Daniel Emery, Silas Little, John Osgood, Ebenezer Hale, Josiali Little and Oliver Pilsbury, Esquires, were not legally chosen, and are not entitled to seats in this house, and that the same be declared vacated.”
Note. The principal ground of the decision, in the foregoing case, was the uncertainty of the election.
A note would not have been subjoined in this place, but at the request of some very intelligent members of the house, who expressed an apprehension that the facts stated in the above report would not, upon strict examination, warrant the conclusion, which the committee have drawn.
The whole number of votes, according to the report, must have been one thousand and twelve. Had the common method of ascertaining the majority in such cases been adopted, namely: dividing the whole number by the number which the town had voted to send, the result would have been, that no one had a majority ; 168 (the highest number) being a fraction less than one-sixth. Such a method, however, was proved to be fallacious, and decided to be improper, in the case of the Charlestown election, in 1813.
In the above case, it is obvious to observe, in the first place, that the number of tickets, which contained six names, was unknown. It might have been only twenty, or it might have been one hundred and sixty-eight. In the next place, there is the same uncertainty as to the number of tickets, which contained three, four, and five names ; with the still further uncertainty, respecting the number of those who gave in “ six separate ballots, with one name on each.” And though no suspicion of fraud or unfairness was suggested, yet, for aught that appears, those who gave in six separate ballots might have given them all for one candidate. It is demonstrable, that if *194this had been done by as many as twenty-five voters, it would have overbalanced the whole number (149) given for those, who were not returned as elected. It would seem, that nothing could be more plain than that a majority of votes might thus have been given by a minority of the voters. Many other illustrations, equally strong, are suggested by the facts stated in the report,
Although there is the highest degree of probability, that those, who were returned, were chosen by a majority of the electors, yet, the house decided that nothing short of legal certainty would, entitle them to retain their seats. The case of the Wrentham election in 1809 (ante, 70), which was the same in principle, was decided in the same manner, and considered as a binding precedent.
After the acceptance of the report, it was ordered, that the committee on the pay roll be directed to make up the travel and attendance of the members from Newbury, during the present session of the general court, to this day (February 25th) inclusive.1
35 J. H. 20.
35 J. H. 432, 446.
35 J. H. 446. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502483/ | The election of Micajah Gardner, returned a member from the town of Nantucket, was controverted by William Coffin, and others,1 and the election of Ziba Drake, returned a member from the town of Sharon, was controverted by Nathaniel Morse and others,2 on the ground, that, at the meetings held in those towns respectively, motions were regularly made and *196seconded, in the town of Nantucket, “ that the town send no representative,” and in the town of Sharon, “ to see if the town would choose a representative,” which motions the moderators of the said several meetings refused to put to vote, but thereupon immediately called for and received votes for representatives.
The petitions in these cases, were presented at the May session, and referred to the committee on elections, who made the following report thereon1:—
“ Town-meetings were duly had and convened in said towns of Nantucket and Sharon, in the month of May last, for the choice of representatives to the present general court. At each of the said meetings, motions were regularly made and seconded (in effect), that each of the said towns should not send representatives to the general court the present year; and the moderators of the several meetings refused to submit the questions for decision, urging that they were prohibited by the constitution and laws of the commonwealth, from putting motions of that nature. It appearing to the committee, that different opinions are formed in different parts of the commonwealth, respecting the question whether a town may constitutionally and legally vote not to send a representative to the general court; notwithstanding the decision of former houses of representatives on this subject, and the opinion of the honorable the justices of the supreme judicial court, which seems to be expressed in the opinion they gave on the question respecting aliens, submitted to them by a former house of representatives ; and inasmuch as the present question was not then directly before the honorable judges, and the committee having had before them some evidence that one of the justices of the supreme judicial court, at the last session of the same, holden in Boston, in the county of Suffolk, and for the comities of Suffolk and Nantucket, on the trial of an indictment, then and there pending against the selectmen of Nantucket, did express an opinion, in some degree contrary to the one incidentally given and expressed as aforesaid; it has, in the opinion of the *197committee on elections, become highly necessary to have all doubts on the question before referred to removed, that the same understanding on the subject may be made to prevail in all the towns and in all the departments of the government of the commonwealth. Wherefore they respectfully report their opinion, of the expediency of this honorable house of representatives passing an order, by which the opinion of the justices of the supreme judicial court; may be requested on the following question :—
Whether a town, having by the constitution a right to send a representative or representatives to the general court, can constitutionally and legally vote not to send a representative, and whether such vote would be binding on a minority of voters dissenting therefrom in such town.”
The report was agreed to, and the order recommended by the committee adopted.
The committee subsequently recommended a reference of these cases to the next session, and they were referred accordingly.1
At the January session, a communication was received from the justices of the supreme judicial court, answering both questions in the affirmative.
The committee thereupon reported the facts in these two cases, as already above stated, and concluded: “ That although some doubts may have heretofore existed, whether towns, constitutionally entitled to choose representatives, can legally waive the exercise of their right, yet by recurring to former decisions of this house, as well as the decision of the honorable justices of the supreme judicial court, on questions recently proposed to them, by this house, it is settled, that the right to send a representative is a corporate right, and that a town can constitutionally vote not to send a representative to the general court, if it choose to waive its privilege in that respect. And inasmuch as the qualified voters *in said towns were, in the opinion of the committee, deprived of their constitutional rights, by reason of the motions made as aforesaid not being put to *198them, at said meetings, for their determination, the committee ask leave io report, and do unanimously report, that the said Micajah Gardner, and Ziba Drake were not duly elected, and are not entitled to seats in this house. The report was agreed to.
36 J. H. 12.
Same, 39.
36 J. H. 120.
36 J. H. 126. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502485/ | The election of Charles Hayden, returned a member from the town of Winslow, was controverted by Francis Swan and others,1 for the reasons stated in the report2 of the committee on elections, made thereon and agreed to at the January session, as follows :—
" On the first day of May last, the qualified voters, in said town, were duly convened for the purpose of electing a representative ; and on opening the meeting, it was voted ‘ not to send a representative to the general court in the year then ensuing,’ upon which a number of voters withdrew from the meeting ; nevertheless, the selectmen called for and received the ballots of several of the voters remaining, and declared Charles Hayden, Esq., elected, and then it was voted to reconsider the vote passed at the opening of the meeting, not to choose a representative. As it has been determined, that the right of sending a representative is a corporate right, and that a minority in town meeting, dissenting from the majority, cannot legally make choice of a representative, and that the reconsideration of the vote as aforesaid could not legalize the choice by a minority ; the committee ask leave to report, and do unanimously report, that the supposed election of the said Charles Hayden is void, and that he is not entitled to a seat in. this house.”
36 J. H. 57, 126.
Same, 303. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502486/ | The election of Isaac Lilly, returned a member from the town of Dresden, was controverted by Francis Rittal and *202others,1 for the reasons which are stated in the following report of the committee on elections, made at the January session2 :■—
“ A meeting of the qualified voters in said town of Dresden was holden on the eighth day of May last, for the purpose of electing a representative for the year then ensuing, and one Reuben Meservy, who was at the meeting, and whose name was on the list of voters, being objected to, as not possessing property sufficient to entitle him to vote in the election, his name was thereupon crossed on the list, till the selectmen could ascertain his qualifications. On the ballots being called for, the said Meservy put in his ballot with the rest, which, on being sorted and counted, there were for George Houdlette, 85 votes, for Isaac Lilly, 84 votes, and George Goodwin, 1 vote. The selectmen declared there was no choice, and called again for the ballots, which resulted in the choice of the said Isaac Lilly. At the last balloting, the said Meservy did not vote. From the evidence produced, it did not appear to the committee, but that the said Meservy was a legal voter, neither did it appear for whom he voted, except by his own declaration, made after the meeting, and when lie was not under oath, that he voted for Isaac Lilly. Upon the foregoing facts, the committee ask leave to report, and do unanimously report, that the said Isaac Lilly was duly elected, and is entitled to a seat in this house.”
This report was agreed to.
36 J. H. 14.
Same, 329. | 01-04-2023 | 11-22-2022 |
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