Bull v. James W. Southwick

• Citation: 2 N.M. 321
• Parties: THOMAS J. BULL, Appellee,v.JAMES W. SOUTHWICK, Appellant.JOHN D. BARNCASTLE, Appellee,v.MARTIN AMADOR, Appellant.EVANGELISTO CHAVES, Appellee,v.MAXIMO CASTENADA, Appellant.
• Decision Date: 31 January 1882
• Court: New Mexico Supreme Court

2 N.M. 321

THOMAS J. BULL, Appellee,

v.JAMES W. SOUTHWICK, Appellant.JOHN D. BARNCASTLE, Appellee,

v.MARTIN AMADOR, Appellant.EVANGELISTO CHAVES, Appellee,

v.MAXIMO CASTENADA, Appellant.

Supreme Court of the Territory of New Mexico.

Jan. Term, 1882.

*1 Appeals from the District Court of Doña Ana county

These were proceedings under the statute to contest the respective elections of appellants to the offices of sheriff, treasurer and judge of probate for the county of Doña Ana, at an election held on November 2, 1880. By stipulation of counsel the three cases were heard and determined together in the court below, and they were in like manner argued and submitted in this court.

In the first case Thomas J. Bull served and filed notice of contest upon the respondent, James W. Southwick, for the office of sheriff of Doña Ana county. In the notice of contest, the contestant used printed forms, alleging, among other things, illegal votes cast and counted for respondent at the last election for said office, and set out various causes, rendering said votes illegal. The contestant also alleged irregularity of the returns of the election at the Las Cruces precinct.

The respondent replied, serving and filing his answer within the time required by the statute, specifically denying the allegations in contestant's notice, except that in the denials, which were made in the order of the allegations in contestant's notice, by a clerical error, one of the allegations is not specifically denied.

Following the several specific allegations touching the individual voter, the contestant, in his notice, alleges generally that the vote, etc., was unlawfully registered, received, and counted, etc. These allegations are specifically denied by the respondent's answer.

The contestant filed his replication, and served the same within the time contemplated by law.

The respondent applied to the judge to fix the time within which to take testimony, and at the same time applied for leave to file an amendment to his answer, which motion for leave was overruled by the court, and the respondent excepted. Thereafter, upon notice by respondent to contestant, testimony was taken. Contestant took testimony regarding quite all the votes alleged by him to be illegal votes. The contestant introduced no proof to sustain his allegations as to the Las Cruces precinct, except the poll-book and tally list of votes. The respondent introduced proof to show the regularity of the election at Las Cruces precinct, etc., etc.

The respondent asked again for leave to amend his answer. The court overruled motion for leave to amend, and ruled out certain evidence, to wit, all evidence of the respondent's touching the legality of the votes alleged by contestant's notice to be illegal votes, and without finding that the contestant received a majority of the votes cast at said election, rendered judgment in favor of contestant. To all of which respondent excepted.

On June 1, 1881, the case was argued and submitted, and on December 14, 1881, the court rendered its judgment.

The facts found and the conclusions drawn by the court are the following:

That it appears from the returns of the judges and clerks of election, from each of the precincts in the county, that the contestant, Thomas J. Bull, received for the office of sheriff two more votes than the respondent, James W. Southwick; contestant, Barncastle, received nine more votes for the office of treasurer than respondent, Amador, and respondent Casteñada, received twelve more votes than contestant, Chaves, for the office of judge of probate.

*2 That the board of county commissioners, acting under the statute as, ex officio, a board of canvassers, illegally assuming judicial functions, went behind the returns and rejected certain votes as illegal, in such manner as to show a majority for Southwick of nine votes, for Amador of two votes, and for Casteñada of twenty-three votes, and (wrongfully as to the first two) issued to them, respectively, the certificates of election to the several offices.

That the returns of the judges and clerks of precinct No. 3, which gave a majority of fifty-six votes for Southwick, of sixty votes for Amador, and of eighty-nine votes for Casteñada, were so false, contradictory and unreliable as to render it impossible to determine therefrom what persons voted for the respective offices.

That the testimony taken before the master on the part of respondents against the objection of contestants, tending to show that the sixty-nine persons before mentioned had been residents of the county for three months immediately preceding said election, was irrelevant, improperly taken and not to be considered, and that said sixty-nine votes for respondent were illegal, as appeared by the pleadings.

The contestant Bull received a majority of the legal votes cast, and was entitled to the office of sheriff. The same result followed in the other two cases, and judgment was accordingly entered, from which the respondents respectively appealed to this court.

No motion for a rehearing or in arrest of judgment appears to have been made.

The other cases are the same in facts and questions of law as Bull v. Southwick.

S. B. Newcomb, W. L. Rynerson and John D. Bail, for appellants.

The judge did not, in his opinion, find facts upon which to base his judgment.

The court below erred in refusing the amendments to supply what is plainly a clerical omission. This is evident from the answer itself: Act of N. M. Legislature, 1878, par. 54, p. 1220, Prince's Statutes.

The special law of 1876 in regard to the mode of procedure in contested election cases has been changed and modified by statute of 1878 above cited, and secs. 1, 2 and 5, at p. 54, Session Laws 1878.

The main question to be decided by this court is: Did the court below err in refusing to allow the appellants to amend their answers? In order to arrive at a true solution of this question, it will be necessary to briefly review the general principles underlying all election laws in reference to contests. The rule is universal that the person having a legal majority of the votes cast must prevail. And to arrive at this determination the case must be considered upon the merits. It is true different states have different laws and methods of trying cases of this description, but they all have the same end in view; all conform to the same universal doctrine, that the will of the people, as expressed through the ballot box, must be respected; in other words, whoever has received a majority of the legal votes cast shall be entitled to and shall receive the office to which he was elected by the people.

*3 Such proceedings are not to be strangled by technicalities, but examined upon their merits, and the courts are to adjudge and decree which of the candidates received the highest number of legal votes: Re Duffy, 4 Brews. (Pa.), 531; United States Digest, new series, vol. 4, p. 259, sec. 24.

“Mistakes should always be corrected, and in determining this and similar questions, on cases of contested elections, it should be kept constantly in mind that the ultimate purpose of the proceeding is to ascertain and give expression to the will of the majority as expressed through the ballot box and according to law. Rules should be adopted and construed to this end and to this end only:” McCrary, p. 137, sec. 132.

The problem is to secure, first, to the voter a free and untrammelled vote, and secondly, a correct record and return of the vote. It is mainly with reference to these two results that the rules for conducting elections are prescribed by the legislative power. But these rules are only means. The end is freedom and purity of elections. To hold that these rules are mandatory and essential to a valid election, is to subordinate substance to form, the end to the means:” McCrary, p. 155, sec. 200.

An election with us is the deliberate choice of a majority or plurality of the electors. Any doctrine which opens the way for minority rule in any case is anti-Republican and anti-American: McCrary, p. 209, sec. 234.

The broad doctrine was asserted that in this country an election by a minority of the persons voting is not to be tolerated under any circumstance: Id., sec. 235.

A contested election case, whatever the form of the proceedings may be, is in its essence a proceeding in which the people are primarily interested: Id., sec. 316; Whisor v. Kidder, 43 Cal., 237; Saunders v. Haynes, 13 Cal., 154; Learey v. Snow, 15 Cal., 118.

Nowhere does a different doctrine obtain. Can it be conceived, then, that it has been left to New Mexico alone to run counter to all recognized law and authority on this subject? Did the legislators of New Mexico intend to make a law that would turn a man out of an office to which the people had duly elected him, because, forsooth, his attorneys had made a mere slip of the pen? The learned judge below admits that Castañada was duly and fairly elected. Still he turns him out and puts into his place a man whom the people had rejected. Could the makers of the law ever have intended or even contemplated the possibility of such a proceeding? To state so startling a proposition is to answer it.

Keeping in view these well settled principles, how should our statute be construed? So that the will of the people should be disregarded and minority condidates inducted into office, or rather that the will of the people should be respected and the candidate who received a majority of the votes cast, should be declared elected?

*4 That the candidate receiving a majority of the legal votes cast, shall in all cases prevail, the authorities say, is the chief object of all legislation on this subject; and, indeed, our own statute-this arbitrary, tyrannical, technical statute, as counsel for appellees would have us believe- positively enacts that whoever receives the majority of the legal votes shall be declared elected; thereby conclusively showing that...