ARLEDGE v. MABRY

• Decision Date: 27 September 1948
• Docket Number: No. 5144,5144
• Citation: 52 N.M. 303,197 P.2d 884
• Parties: ARLEDGE v. MABRY, Governor, et al.
• Court: New Mexico Supreme Court

52 N.M. 303

197 P.2d 884

ARLEDGE

v.MABRY, Governor, et al.

No. 5144.

Supreme Court of New Mexico.

Sept. 21, 1948.

Rehearing Denied Sept. 27, 1948.

[197 P.2d 885, 52 N.M. 305]

A. T. Hannett, H. O. Waggoner, and Stanley W. P. Miller, all of Albuquerque, Robert W. Ward, of Lovington, for informant.

C. C. McCulloh, Atty. Gen., for respondents.

Adams & Chase, Martin A. Threet, and Harry O. Morris, all of Albuquerque, for D. A. (Danny) Macpherson, real party in interest.

D. A. Macpherson, of Albuquerque, pro se.

Everett M. Grantham, U. S. Atty., of Santa Fe, amicus curiae.

SADLER, Justice.

The primary question for decision is whether that portion of Precinct No. 17 in Sandoval County, acquired by the United States through condemnation proceedingsand incorporated into what is popularly known as the Los Alamos Project, is 'in New Mexico' within the true meaning of Art. 7, § 1 of the New Mexico Constitution defining the qualifications of an elector entitled to vote at all elections for public officers. Incidentally, the right to vote of residents of other portions of the lands comprising the Los Alamos Project lying within Precinct No. 17, as affected by the fact of acquisition for its use from areas of the public domain, will be discussed and determined. And, finally, but for determination only in the event of a holding that the portion of said precinct so acquired through condemnation is not 'in New Mexico' within contemplation of the constitutional provision mentioned, whether conduct of an election at which all polling places for the precinct are located in the condemned area, invalidates such election.

The questions arise out of a contest between R. F. Deacon Arledge, the Informant, and D. A. 'Danny' Macpherson, his opponent, rival candidates in the primary election of June 8, 1948, for the democratic nomination for the office of Judge of the District Court of the Second Judicial District, Division No. 2. The Informant, appearing upon the face of the returns to have received the larger number of votes, was declared to be the nominee by StateCanvassing Board and a certificate of nomination was duly issued to him. Thereafter, both candidates having requested a recount of the ballots in certain designated precincts and voting divisions of the three counties comprising the Second Judicial District, the vote received by the candidates mentioned, after recount of the votes, was retabulated by the respective Boards of County Commissioners, acting as county canvassing boards. The result disclosed that Informant's previous majority was overcome and a majority of 78 votes accumulated in favor of his opponent.

The corrected result of the primary election for democratic nomination for the office mentioned having been certified to the State Canvassing Board composed of the Governor, Chief Justice and Secretary of State, the officers named were about to meet as the State Canvassing Board, recanvass the amended returns for the nomination involved, and as Informant had good reason to believe, cancel Informant's certificate of nomination and issue another one to his rival candidate. Thereupon, the Informant applied to this Court for a writ of mandamus against the above named state officers, composing in an ex-officio capacity the State Canvassing Board, as respondents, commanding them to recanvass the returns in the office of the Secretary of State for the nomination mentioned, employing the amended returns resulting from the recount, but omitting and excluding therefrom returns from all voting divisions in Precinct No. 17 of Sandoval County. It is argeed that if the returnsfrom said precinct be ignored, the Informant is rightfully entitled to the certificate of nomination which he now holds. We authorized issuance of an alternative writ and now the matter is before us on the writ and answer with all facts essential to a decision covered by written stipulation filed herein.

It could only result in confusion to endeavor to detail in this opinion the various steps by which the United States acquired title to the lands embraced in Precinct No. 17 of Sandoval County, New Mexico. Hence, only the basic, ultimate facts touching this phase of the case and deemed essential to our decision will be stated. Suffice it to say that the Los Alamos Project of the Atomic Energy Commission is a tract of land, located partly in Sandoval County and partly in Santa Fe County, New Mexico, containing approximately 68,991.30 acres. Title to all this land is held by the United States of America with custody and use of the land in United States Atomic Energy Commission, an agency of the government. Precinct No. 17 (Los Alamos) Sandoval County, New Mexico, is a tract of land within the Los Alamos Project of the Atomic Energy Commission. It contains approximately 580.29 acres and lies wholly within Sandoval County, New Mexico. Title to different parcels of this tract was acquired by the government in two different ways.

Title to an area comprising 172.90 acres within Precinct No. 17 was acquired by the United States, together with a large additional quantity of land, from Mexico in 1848 under the terms of the Treaty of Guadalupe Hidalgo, 9 Stat. 922. It thus became a part of the public domain and enjoyed that character when on January 6, 1912, 37 Stat. 1723, New Mexico was admitted into the Union as a sovereign state. It came immediately under administration of the Department of the Interior following its acquisition and in 1905 this tract, along with other lands, was established as a forest reserve. Subsequently, in 1905 the administration of forest reserves was transferred by congress to the Department of Agriculture. This tract remained as a part of the national forest reserves, finally being incorporated into and becoming a part of Santa Fe National Forest. It was such when the custody, use and occupancy of this and other lands, by agreement between governmental departments passed, first, to Corps of Engineers of United States Army and, finally, by Executive Order No. 9816 of the President, 42 U.S.C.A. § 1802 note, under authority of the Atomic Energy Act of 1946, Public Law 585, 79th Congress, 42 U.S.C.A. § 1801 et seq., into the custody, management and control of the Atomic Energy Commission. So stood the title, control and management of said tract of 172.90 acres at all times material to this case.

[197 P.2d 887, 52 N.M. 308]

The United States acquired title to the remaining 407.39 acres of Precinct No. 17 on June 18, 1943, through condemnation proceedings instituted against Los Alamos Ranch School, Inc., a corporation, in the United States District Court for the District of New Mexico. These lands, along with others included in the same condemnation proceeding, were acquired by the United States on behalf of the War Department and devoted immediately to the use and assigned to the custody of Manhattan District Corps of Engineers of the United States Army. Thereafter on December 31, 1946, and by the same Executive Order No. 9816, mentioned above, the President of the United States under authority of Atomic Energy Act of 1946, transferred this 407.39 acres, along with all other property, real or personal, owned or in the possession, custody or control of the Manhattan Engineer District, War Department, to the Atomic Energy Commission. Such was status of the title, control and management of said tract of 407.39 acres at all times material to this proceeding.

It having been provided by § 355, Rev.Stat., as amended by the Act of February 1, 1940, 54 Stat. 19, and by the act of October 9, 1940, 54 Stat. 1083, 40 U.S.C.A. § 255, in effect, that unless and until the United States has accepted jurisdiction over lands acquired or in which any interest shall have been acquired after February 1, 1940, it shall be conclusively presumed that no such jurisdiction has been accepted, the Secretary of War under date of November 19, 1943, by letter addressed to Honorable John J. Dempsey, then Governor of New Mexico, at Santa Fe, gave notice that the United States was accepting and thereby did accept exclusive jurisdiction over all lands acquired by it for military purposes within the state of New Mexico, title to which had theretofore vested in the United States, and over which exclusive jurisdiction had not theretofore been obtained. This letter from the Secretary of War further gave notice that:

'Exclusive jurisdiction is also accepted over all lands reserved from the public domain for military purposes, over which such jurisdiction has not heretofore been obtained.'

Subsequently, under date of August 21, 1944, the Secretary of War addressed another letter to the Honorable John J. Dempsey, Governor of New Mexico, at Santa Fe, referring to his letter of November 19, 1943, and to another letter of identical language from the Secretary to Governor Dempsey dated August 8, 1944, the letter of August 21st purporting to give a list of all military reservations over which exclusive federal jurisdiction had been accepted, 'comprising lands acquired and/or reserved from the public domain as of August 8, 1944.' Included in the list submittedwas 'Los Alamos Demolition Range' in Sandoval County, which embraces the lands of Precinct No. 17 in said county.

It was later discovered by the Secretary of War that he had made an error in compiling the list of lands over which United States accepted and claimed exclusive jurisdiction. Accordingly, under date of September 7, 1944, he addressed another letter to the Honorable John J. Dempsey, Governor of New Mexico, at Santa Fe, reading:

'Reference is made to my letter of August 21, 1944, furnishing a list of military reservations in the State of New Mexico comprising lands acquired or reserved from the public domain as of August 8, 1944.

'Exclusive jurisdiction has been obtained over all land in the State of New Mexico acquired in fee simple by the United States for military purposes prior to August 8, 1944, by purchase, condemnation, or...