Carabajal v. Sandoval

• Decision Date: 30 June 1916
• Docket Number: Nos. 1862, 1863.,s. 1862, 1863.
• Parties: CARABAJALv.LUCERO.TRUJILLOv.SANDOVAL.
• Court: New Mexico Supreme Court

22 N.M. 30

158 P. 1088

CARABAJAL

v.LUCERO.TRUJILLO

v.SANDOVAL.

Nos. 1862, 1863.

Supreme Court of New Mexico.

June 30, 1916.

Syllabus by the Court.

Section 2070, Code 1915, provides for the contest for “the offices of the officers of the different counties in this state,” and prescribes the procedure. Held, that justices of the peace and constables may institute contest proceedings under such statute.

In the absence of a showing of fraud on the part of the election officers, sufficient to invalidate the returns and to cast discredit upon the ballots, preserved as required by law, the individual voters cannot be permitted to testify as to the candidates for whom they voted at an election.

Elections conducted fairly and honestly, where no fraud or illegal voting is shown, will not be set aside for mere irregularity in the manner of the appointment of the election officers, or in the conduct of the election.

Appeal from District Court, Bernalillo County; H. F. Raynolds, Judge.

Election contests by Juan Carabajal against Camilo Lucero, and Miguel Trujillo against Alfredo Sandoval, consolidated for trial. From judgment for contestants, contestees appeal. Reversed and remanded, with instructions.

Elections conducted fairly where no fraud or illegal voting is shown will not be set aside for mere irregularity in the appointment of the election officers.

Barnes & Nicholas, of Albuquerque, for appellants.

John F. Simms, of Albuquerque, for appellees.

ROBERTS, C. J.

This is a consolidated cause composed of two election contest cases, one for justice of the peace and the other for constable, both of precinct No. 3 of Bernalillo county, N. M. At the election held for justice of the peace and constable in Alameda precinct, Bernalillo county, N. M., in January, 1915, Alfredo M. Sandoval and Camilo Lucero were the Republican candidates for justice of the peace and constable respectively, and Miguel Trujillo and Juan Carabajal were the Democratic candidates for said offices. The returns showed the election of Sandoval as justice of the peace and Lucero as constable, who qualified and entered upon their duties as such. Trujillo and Carabajal contested this election under the provisions of article 6, chapter 32, Code 1915. Upon the face of the returns the Republican candidates received 96 votes to 74 cast for the Democratic candidates.

Upon the trial the evidence of the contestants consisted of oral evidence given by some 99 voters taken before a referee, each stating that he voted for the Democratic nominees, Trujillo and Carabajal, for justice of the peace and constable, respectively; while contestees' evidence was the returns, the evidence of each of the election officers that the election was fairly conducted, and that the votes were properly counted and as shown by the returns; also the testimony of both the Republican and Democratic watchers to the same effect. On behalf of the contestants evidence was introduced tending to show that the polls had been open from 15 to 20 minutes before 9 o'clock, while the evidence on behalf of the contestees showed that the polls were not opened until 5 minutes past 9 o'clock. Contestants also attempted to show that persons voting could not see the ballot box or who was inside the polling place, but all of appellants' witnesses and many of appellees' testified that such was not the case, but that the ballot box was in plain view of those outside the room where the election was held. Evidence on the part of contestants tended to show that the Democratic election judge, appointed by the board of county commissioners, was not allowed to serve as such at such election, but that another judge was selected, either by the remaining judges or by the voters assembled at the polls, and that such election was made prior to the time that the polls should have been opened, under the law. Contestees' evidence was to the effect that the third judge was selected because the Democratic judge had not arrived at the polls when the time arrived to open the same and proceed with the election. Some evidence was further introduced by the contestants to the effect that a man named Sais demanded admittance into the room for the purpose of watching the count of the votes on behalf of the Democratic candidates, and was refused admission. Upon the conclusion of the evidence the court made general findings favorable to the contestants and decreed them entitled to the offices. From this judgment contestees appeal.

[1] The first question raised is the action of the trial court in overruling contestees' plea to the jurisdiction of the trial court; it being appellants' contention that the statute (section 2070, Code 1915), which confers jurisdiction on the district courts to hear election contests, does not apply to nor include precinct officers like the justice of the peace and constable. The statute reads as follows:

“All contests for the offices of the officers of the different counties in this state, shall be commenced in the district court, for the county in which the contest is made; and the notice of contest shall be filed within thirty days after the day on which the county commissioners count the votes of the election from which the contest arises; and the service on the contested shall be made by a copy of said notice of contest, served in the same manner and at the same time, before the first day of the court, as now provided by law for the service of process in civil suits in the district court.”

Appellants contend that justices of the peace and constables are not county officers, citing in support of their contention section 1, art. 10, of the Constitution, and Territory v. Witt, 16 N. M. 335, 117 Pac. 860.

The statute under consideration is somewhat ambiguous. It was enacted by the territorial Legislature December 23, 1874, (chapter 29, p. 50), and superseded in this regard the act of July 20, 1851 (Comp. Laws 1865, p. 431 et seq.), which provides as follows:

“Sec. 48. In case any election for probate judge is contested, the party contesting shall give eight days' previous notice to the opposing party, specifying the grounds of the contest, and if any objections are made to persons having voted, they shall be fully specified; said contest shall be heard and determined in a summary manner by the circuit court, or by three justices of the peace selected for the occasion by the contesting and opposing parties.

Sec. 49. In case any election for sheriff, justices of the peace, or constables be contested, the party contesting shall give eight days' previous notice to the party opposing, in the same manner as prescribed in the foregoing section, which contest shall be heard and determined in a summary manner by the probate court. In case any election for other subaltern officers, created by law, shall be contested, said contest shall be determined in the manner prescribed by the probate judge.”

It will thus be seen that the first act passed relating to this subject specifically authorized the contest of an election for justice of the peace. By the act of December 23, 1874, jurisdiction of the probate court in such matters was abolished and exclusive jurisdiction was conferred upon the district court of the county in which the contest was filed. It was evidently the intention of the Legislature to provide for the contest under such statute for all the officers within the county. The statute does not say “all county officers,” but “all contests for the offices of officers of the different counties,” having evidently in view the object of providing a simple remedy for election contests for all officers within a county. An officer who resides in a county, such as justice of the peace or constable, is certainly “of the county,” in that he resides and exercises his official functions inside the geographical limits of the county; yet he may not be a “county officer,” in that his jurisdiction does not extend over the entire county. Hence we conclude that justices of the peace and constables may contest the election of their opponents under the provisions of section 2070, supra.

[2] Appellant further contends that, even if the county had jurisdiction of this cause, there was not sufficient evidence to sustain the contest and to overthrow the official return, that no fraud was shown, and that the voters at the election could not impeach the returns by simply stating, each for himself only, that he voted in a certain way. Appellant admits in his brief that if sufficient evidence had been first introduced by appellees to establish fraud and corruption on the part of the election officials, sufficient to impeach not only the returns but the ballots, that it would be proper to call in the individual voters and inquire of them as to how they voted. The right to do so upon first establishing the fraud is not involved in this case, hence is not before us for consideration, and we are not required to express an opinion in this regard.

Here appellees contend that in view of the general finding of the court for the contestants, it is to be presumed that the trial court found that fraud had been established, but they overlook the fact that the only evidence of fraud consisted in the testimony of the voters to the effect that they had voted in a certain way. In the district court counsel for appellees admitted that the only testimony which had been given to show fraud was the testimony of 95 men who voted Democratic. In answering the contention of appellants, upon a motion to strike out all the testimony in the cause because it was not shown that fraud of any kind was committed at the election, counsel for appellees, in the trial court, said:

“In answer to that, if your honor please, the only thing that tends to show it is the testimony of 95 men out of 166 men who voted Democratic and the returns came up the other way.”

[3] That there were possibly some irregularities in the conduct of the election is...