Baca v. Ortiz, 4244.

• Decision Date: 26 September 1936
• Docket Number: No. 4244.,4244.
• Citation: 40 N.M. 435,61 P.2d 320
• Parties: BACAv.ORTIZ, COUNTY CLERK.
• Court: New Mexico Supreme Court

40 N.M. 435

61 P.2d 320

BACA

v.ORTIZ, COUNTY CLERK.

No. 4244.

Supreme Court of New Mexico.

Sept. 26, 1936.

Appeal from District Court, Santa Fé County; M. A. Otero, Jr., Judge.

Action by James Baca against Frank V. Ortiz, Clerk of Santa Fé County, New Mexico. Judgment for plaintiff, and defendant appeals.

Affirmed.

Under constitutional provision requiring favorable vote of three-fourths of electors for amendment of section of Constitution setting out voting qualifications, proposed constitutional amendment authorizing absent voting held to constitute an amendment to such section, which had been construed to require manual delivery of ballot by elector, and not to have been constitutionally adopted by bare majority vote in its favor. Const. art. 7, §§ 1, 3, 6.

David W. Carmody, of Santa Fé, for appellant.

Reed Holloman and George E. Remley, both of Santa Fé, for appellee.

BRICE, Justice.

This action was brought to enjoin the county clerk of Santa Fé county from carrying out any of the provisions of the so-called absent voters laws hereinafter referred to. The following facts are alleged as grounds for the issuance of the writ:

“That the law of the State of New Mexico providing for the voting by persons absent from their voting precinct or district imposes on the County Clerk the duty of providing applications for persons desiring ballots to be voted by them without their being present in person to cast their vote in the precinct or district where they reside. * * *

That the defendant proposes to prepare applications for ballots to be voted by such absent voters, and to mail to such voters, ballots to be voted as provided by law, and unless restrained from so doing, will proceed to carry out the law providing for voting by such absent voters.

That such action on the part of said defendant will entail large expense and will permit a large number of voters who will be absent from their voting place at the election to be held on November 3d, 1936, to vote by such method at such election.

That the law of the State of New Mexico, providing for the voting of persons ab sent from their voting places is unconstitutional and void. ***

“That said plaintiff is informed and believes and alleges on information and belief, that persons absent from their place of legal residence, in the military or naval service of the United States or of this State, will be allowed to vote at such election although they will not be present in person to cast their ballot, unless the Clerk is restrained from carrying out the provisions of the law providing for such method of voting.

“That section of article 7 of the Constitution of the State of New Mexico, is illegal and void for the reason that it was not adopted by a vote of the people of this State in an election at which at least three-fourths of the electors voting in the whole State and at least two-thirds of those voting in each County of the State, voted for said section 6 when it was proposed as an Amendment to said Constitution.”

The defendant demurred generally to the complaint which brings in question the constitutionality of such laws; and whether section 6 of article 7 of the State Constitution (hereafter quoted) was validly adopted by the people. This demurrer was overruled by the court and decree entered as prayed for; from which decree this appeal is prosecuted.

[1] There are a number of laws involved in this suit. Chapter 127 of the N.M. Session Laws of 1933 is a general law providing that qualified electors absent from their voting precinct may vote at elections and the manner and means of such voting. This act was held unconstitutional by this court in Thompson v. Scheier, 40 N.M. 199, 57 P.(2d) 293. There are two other statutes on the subject not directly involved in that decision, but concededly they are unconstitutional under our conclusion in that case and must necessarily be held so, unless we now disapprove the material holding in that case.

Chapter 41, N.M.Sess.Laws 1927 (chapter 41, N.M.Codification 1929 [section 41-101 et seq.]) is the present election code except as it may have been amended. Sections 333 to 336 inclusive, of said act (N.M.Comp.St.1929, ss 41-333 to 41-336), contain all its provisions for absent voting. They provide in substance that any registered elector who expects to be absent from his precinct on election day may cause to be mailed or presented to the county clerk an application for an official ballot to be voted at said election. Upon receipt of such application the clerk shall file the same and mail or deliver an official ballot as requested, together with an envelope addressed to the judges of the election of his precinct or election district, upon the back of which there shall be printed a certificate to be signed by him, to the effect that he is duly registered as an elector in his precinct or election district, naming it. Upon receipt of the ballot, the absent voter shall mark the same, fold and place it in the envelope furnished, and seal it, execute the certificate in the presence of witnesses and mail or send the same to some registered elector of his precinct or election district to be presented to the election officers at the polls. Any registered elector of the precinct or election district is authorized to hand the sealed envelope containing the ballot to one of the election judges, who shall call out the name of the absent voter. If he is registered, and no challenge is sustained to his ballot, the judge shall open the envelope, take out the ballot and deposit it in the ballot box.

Chapter 73 of N.M.Session Laws 1912 provides that a...