State ex rel. Magee v. Williams

• Decision Date: 10 September 1953
• Docket Number: No. 5664,5664
• Citation: 57 N.M. 588,1953 NMSC 82,261 P.2d 131
• Parties: STATE ex rel. MAGEE v. WILLIAMS.
• Court: New Mexico Supreme Court

Page 131

261 P.2d 131

57 N.M. 588

STATE ex rel. MAGEE v. WILLIAMS.

No. 5664.

Supreme Court of New Mexico.

Sept. 10, 1953.

Motion to Clarify Opinion Denied Oct. 7, 1953.

J. B. Newell, Las Cruces, for appellant.

Quincy D. Adams, James H. Foley, Albuquerque, for appellee.

LUJAN, Justice.

The parties will be referred to as relator and respondent as they appeared in the lower court. On July 31, 1952, W. E. Magee, relator, as a private person, on his own behalf, and in the name of the State of New Mexico, brought suit in quo warranto, pursuant to Section 26-204 of 1941 Compilation against Thomas B. Williams, respondent, to oust him from the office of Mayor of the City of Truth or Consequences, Sierra County, New Mexico.

The controlling constitutional provisions as to the residence of a city official are Section 2, Article 7 and Section 13 of Article 5, New Mexico Constitution, which read:

'Sec. 2. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any public office in the state except as otherwise provided in this constitution. The right to hold public office in the state of New Mexico shall not be denied or abridged on account of sex, and wherever the masculine gender is used in this constitution, in defining the qualifications for specific offices, it shall be construed to include the feminine gender. Provided, however, that the payment of public road poll tax, school poll tax or service on juries shall not be made a prerequisite to the right of a female to vote or hold office.

'Sec. 13. All district, county, precinct and municipal officers, shall be residents of the political subdivisions for which they are elected or appointed.'

Relator, among other things, alleged that he had asked the District Attorney for that district to institute this action but that he refused so to do; that on April 1, 1952, the respondent was not an elector nor did he reside within the corporate limits of Truth or Consequences, hereinafter referred to as the 'City;' that respondent is now unlawfully holding the office of Mayor of said City and should be removed therefrom; that the certificate of election for that office should not have been issued to him; and that the issuance thereof was improper and illegal. He prayed that the certificate be cancelled and respondent be ousted therefrom.

Respondent made a general denial of the allegations set forth in the complaint and by separate defenses alleged that he is the duly elected and qualified mayor of the City of Truth or Consequences, New Mexico, and was duly issued a certificate of election, under which he holds title to said office, and is now in possession of and performing the functions thereof; that no other person than himself has qualified or attempted to qualify to assume the duties of said office, except one Leo Smith, who in cause numbered 4862 in the district court of Sierra County, New Mexico, entitled 'State of New Mexico, ex rel. Leo Smith, Relator v. Thomas B. Williams, Respondent,' claimed to have been duly elected to said office at said election of April 1, 1952, and sought by quo warranto proceedings to oust respondent therefrom and to have himself installed in said office, but said cause was, by a final judgment therein of the 20th day of June, 1952, dismissed, from which judgment no appeal has been taken. That there is no other person who claims or has claimed to be entitled to hold said office if respondent should be ousted therefrom, and no person other than respondent has qualified or attempted to qualify for said office.

Upon the issues so framed the case was tried to the court who resolved the issues in favor of the respondent and relator appeals.

The court found:

'1. Respondent, T. B. Williams, was a candidate for the office of mayor of the city of Truth or Consequences, New Mexico, and was duly elected to said office at an election held on April 1, 1952, and thereafter has acted as mayor and is now acting as mayor of said city under a certificate of election issued by the clerk of said city on April 4, 1952.

'2. At and prior to the election of April 1, 1952, respondent, T. B. Williams, was the duly elected, qualified and acting mayor of said city of Truth or Consequences, New Mexico.

'3. Respondent, T. B. Williams, at the time of the election held on April 1, 1952, was and is now, and at all material times herein, has been a qualified elector, a property owner and a resident of the city of Truth or Consequences, New Mexico.

'4. At and prior to said election and at all other times material herein, respondent, T. B. Williams, was a resident of the city of Truth or Consequences, and of the State (of) New Mexico.'

The court concluded as a matter of law that:

'1. Respondent, T. B. Williams, at all material times herein, has been and is a resident of the city of Truth or Consequences, New Mexico.

'2. Respondent, T. B. Williams, is the duly qualified and acting mayor of the city of Truth or Consequences, New Mexico, by reason of an election certificate issued to him on April 4, 1952, by the clerk of said city to the duly elected and qualified candidate of an election held on April 1, 1952, in said city.

'3. Respondent is and has been at all material times herein, duly qualified to hold said office of mayor of the city of Truth or Consequences, New Mexico.

'4. This court is without the power to oust respondent, T. B. Williams, from the office of mayor of the city of Truth or Consequences, New Mexico, so long as another person has (not) qualified for said office.

'5. Under the constitution and laws of the State of New Mexico, respondent, T. B. Williams, is qualified in all respects to hold the office of mayor of the city of Truth or Consequences, New Mexico.'

All errors are argued under three points which challenge the findings of fact and conclusions of law hereinabove cited, as well as claimed error in the court's refusal to adopted requested findings of fact and conclusions of law and in entering judgment for respondent. Under the well established rule in this jurisdiction, it must be borne in mind, that we will view the evidence in an aspect most favorable to the judgment. Sands v. Sands, 48 N.M. 458, 152 P.2d 399; McDonald v. Polansky, 48 N.M. 518, 153 P.2d 670; Brown v. Cobb, 53 N.M. 169, 204 P.2d 264; Davis v. Campbell, 52 N.M. 272, 197 P.2d 430; Southern Union Gas Co. v. Cantrell, 56 N.M. 184, 241 P.2d 1209. That in reviewing the evidence on appeal, all conflicts must be resolved in favor of the successful party and all reasonable inferences indulged in to support the judgment and...