Bryan v. Barnett., 3460.

• Decision Date: 04 October 1930
• Docket Number: No. 3460.,3460.
• Parties: BRYANv.BARNETT.
• Court: New Mexico Supreme Court

35 N.M. 207

292 P. 611

BRYAN

v.BARNETT.

No. 3460.

Supreme Court of New Mexico.

Oct. 4, 1930.

Syllabus by the Court.

All issues of law and fact in election contest must be made up by notice, answer, and reply; throwing out ballots in election contest on ground absentee voting is unconstitutional held erroneous, where such issue was not raised by notice, answer, and reply (Comp. St. 1929, §§ 41-604, 41-609).

In an election contest all issues of law and fact must be made by the notice, answer, and reply, and it is error to throw out ballots on the ground that absentee voting is unconstitutional, if no such issue is thus made.

Statutory requirement that application for absentee ballot be signed by elector is directory, and omission to sign does not of itself render ballot illegal (Comp. St. 1929, § 41-333; Laws 1927, c. 41, § 334).

The requirement of Election Code that application for absentee ballot be signed by the elector is directory, and omission to sign does not of itself make ballot illegal.

Appeal from District Court, Lincoln County; Kiker, Judge.

Election contest by John L. Bryan against M. J. Barnett. From a judgment in favor of contestant, contestee appeals.

Reversed and remanded, with directions.

In an election contest all issues of law and fact must be made by the notice, answer, and reply, and it is error to throw out ballots on the ground that absentee voting is unconstitutional, if no such issue is thus made.

W. C. Whatley and J. Benson Newell, both of Las Cruces, and Gilbert & Hamilton, of Santa Fé, for appellant.

J. C. Gilbert and J. B. McGhee, both of Roswell, C. C. Merchant, of Capitan, and J. O. Seth, of Santa Fé, for appellee.

WATSON, J.

This is an election contest instituted under 1929 Comp. § 41-601 et seq., involving the office of county assessor.

According to the canvass the contestant received 1,163 votes. His opponent received 1,166 votes and the certificate of election. As the result of rulings of the trial judge on the numerous contentions of illegality of ballots, the contestant was left with 1,144 votes and the contestee with 978. Judgment was entered canceling the certificate of election, ousting the contestee from office, inducting the contestant therein, and declaring (pursuant to a stipulation which we have not found in the transcript) that contestant was entitled to the emoluments only from the date of the judgment. The contestee has appealed.

[1] One hundred and sixty-four absentee ballots counted and canvassed for appellant were thrown out on a holding of the learned trial judge that the statutory provisions for absentee voting (1929 Comp. § 41-333 et seq.) are unconstitutional. This question has been ably argued here; but before reaching it we must pass upon appellant's contention that it is not before us because not properly raised below. Appellee did not mention it in the notice of contest, or in the reply. It was raised first at the trial, long after the pleadings had been settled, after considerable evidence had been taken, and then by motion for a conclusion of law that all absentee ballots should be excluded because of the unconstitutionality of the statute.

Appellee contends that his notice of contest was sufficient to raise the question and to support his motion. He urges that an election contest “is a special proceeding between private persons, is governed solely by our election contest law, and that the rules of our code of civil procedure and the ordinary rules of pleading do not apply.” He cites Bull v. Southwick, 2 N. M. 321; Vigil v. Pradt, 5 N. M. 161, 20 P. 795; Gonzales v. Gallegos, 10 N. M. 372, 62 P. 1103, and might have cited Crist v. Abbott, 22 N. M. 417, 163 P. 1085; Gallagher v. Linwood, 30 N. M. 211, 231 P. 627, 37 A. L. R. 664; and Hannett v. Mowrer, 32 N. M. 231, 255 P. 636. This is no doubt the correct rule. We are to consult the statute as to the procedure, and it must be strictly followed. Gallagher v. Linwood, supra.

It is prescribed: “There shall be no other pleading except the notice, answer and reply, and issues of both law and fact shall be made thereby.” Section 41-609. This seems plainly to contemplate that the issues between the parties upon which the cause is to be decided, both of law and of fact, are to be determined by these pleadings. Even by amendment the issues could not be changed after the specified time for pleading had expired. Wood v. Beals, 29 N. M. 88, 218 P. 354. Long after this time had expired, during the actual trial, by a mere motion for a conclusion of law, it was first suggested that the absentee voters provisions of the Election Code were unconstitutional.

But appellee points to section 41-604, reading as follows: “The notice shall specify the grounds upon which the claim of the contestant is based, and if he claims that illegal votes have been cast or counted for the contestee, he must specify the name of each person whose vote was so illegally cast or counted, the precinct or election district where he voted, and the facts showing such illegality.” He contends that by this section he was required not to plead the unconstitutionality of the statute, but merely to allege the facts from which that result would follow. He urges the analogy of our statutory complaint in a suit to quiet title, wherein it is sufficient to allege that the plaintiff is the owner of the property, which allegation will permit him to prove any source of title. He cites Oliver v. Enriquez, 17 N. M. 206, 124 P. 798, where we held that such pleading was sufficient; but that, if the plaintiff did attempt to set forth the derivation of his title, he would be held to such allegations; which, if insufficient, would not support a judgment.

If the analogy be correct, it will prove fatal to appellee's contention. We need not here hold that it is necessary for a contestant to set forth in his notice the exact legal theory upon which he claims that votes were illegal, if he states facts necessarily so resulting. We may assume that it would have been sufficient had appellee alleged that certain specified ballots were illegal because not cast by the voters personally. But when, as here, the contestant specifies that the illegality of the absentee ballots consists in various failures to comply with the statute, amounting to irregularity and fraud, we must consider that he tendered an issue of law, not as to the legality of absentee voting, but as to the legality of certain practices in attempting so to vote.

So, the constitutionality of absentee voting is not before us. This cause must be decided and the rights of these parties determined upon the theory that the statute is constitutional.

[2] The next question arises upon the throwing out of 13 absentee ballots cast, counted, and canvassed for appellant because the applications were not personally signed by the several voters. The controlling statutory provisions are: “Any registered elector who expects to be absent *** may cause to be mailed or presented to the county clerk an application signed by him for an official ballot to be voted at said election.” 1929 Comp. § 41-333.

“Upon receipt of such application, the clerk shall immediately file the same and mail or deliver one official ballot as requested in said application to the said elector himself but not to anyone else.” 1929 Comp. § 41-334.

The first section quoted contains also the form of the application. The italicized words in the second section were not in it when the election here involved was held. They were added by amendment. Laws 1929, c. 117, § 3.

Appellee defends the ruling on the theory that the words “signed by him” are a mandatory requirement, and that the elector's failure to sign the application invalidates his ballot. Appellant's position is that the requirement is directory.

Fraud is not here involved. The ballots must be deemed to have been regularly marked and cast by and on behalf of duly qualified electors. Are they void for failure of the electors to sign the application? Counsel for both parties urge considerations of public policy. Whether...