Chase v. Lujan, 4833

• Decision Date: 24 March 1944
• Docket Number: No. 4833,4833
• Citation: 149 P.2d 1003,48 N.M. 261
• Parties: CHASE, Attorney General,v.LUJAN, County Clerk, et al.
• Court: New Mexico Supreme Court

48 N.M. 261

149 P.2d 1003

CHASE, Attorney General,

v.LUJAN, County Clerk, et al.

No. 4833

Supreme Court of New Mexico.

March 24, 1944.Rehearing Denied July 7, 1944.

Appeal from District Court, Santa Fe County; Albert R. Kool, Judge.

Suit by Edward P. Chase, Attorney General of the State of New Mexico, on behalf of the registered and qualified voters of Santa Fe County who are absent from the state in the military or naval service of the United States, against Mrs. Manuel Lujan, County Clerk of Santa Fe County, and others, Commissioners of Santa Fe County, N. M., for a declaratory judgment. From the judgment, plaintiff appeals.

Affirmed.

Edward P. Chase, Atty. Gen., C. C. McCulloh, 1st Asst. Atty. Gen., and Harry L. Bigbee and Robert W. Ward, Asst. Attys. Gen., for appellant.David W. Carmody, Dist. Atty., and Reed Holloman, both of Santa Fe, for appellees.

BRICE, Justice.

We are asked to determine whether the cases of Thompson v. Scheier, 40 N.M. 199, 57 P.2d 293, and Baca v. Ortiz, 40 N.M. 435, 61 P.2d 320, should be overruled to the extent each holds that the Const., Art. 7, § 1, requires the personal presence at the polls of an otherwise qualified elector when he offers to vote.

The question is presented in a suit for a declaratory judgment filed by the Attorney General in the District Court of Santa Fe County, suing on behalf of the registered and qualified voters of said county who are absent from the state in the military or naval service of the United States and desirous of voting in the ensuing general election. The County Commissioners and County Clerk are made defendants and it is alleged they will refuse to carry out the provisions of 1929 Comp., §§ 41-333 and 41-336, L. 1927, c. 41, known as an absentee voting law, to the loss of their right to vote by those for whom plaintiff sues and others similarly situated, unless the court declare same constitutional. This is the first cause of action set up in the complaint. For a second cause of action and as a corollary to the first, it is alleged a like result will follow unless the court declare validly adopted a proposed amendment of Art. 7, § 1, of the constitution submitted in 1920, authorizing the legislature to enact laws governing voting by citizens absent in the military or naval service of the state or nation.

The defendants moved to dismiss the complaint upon the ground that both questions alleged to be controversial between the parties already had been before the Supreme Court of this state and each decided contrary to the contention of the plaintiff. The trial court after hearing arguments sustained the motion and dismissed the complaint. This appeal followed.

Although the defendants both answered and moved to dismiss, in neither pleading did they suggest a want of jurisdiction in the district court to entertain the proceeding as a suit for a declaratory judgment, either for want of a proper party plaintiff or for lack of an actual controversy. Nevertheless, the trial judge expressed grave doubt whether an actual controversy existed but in order to facilitate the determination of a matter of great public importance entertained jurisdiction with the result already stated. We share the doubts of the learned trial judge, especially on the right of the Attorney General to appear as a party plaintiff. In view of the great public interest in the question raised, not only in New Mexico but throughout the nation, we shall not scrutinize too closely the plaintiff's capacity to sue. Cf. State ex rel. Capitol Addition Building Commission v. Connelly, 39 N.M. 312, 46 P.2d 1097. Nevertheless, we shall not deem the fact that jurisdiction is entertained in this case as a precedent for settling future narrow cases of jurisdiction under the declaratory judgments act. We approach the matter here in somewhat the same spirit as did the Supreme Court of New Jersey in Re Freeholders of Hudson County, 105 N.J.L. 57, 143 A. 536, 537, from whose opinion we quote approvingly, as follows:

“In view of the fact that the public is vitally interested and affected by the statute and an election is near at hand, an urgency has arisen for a speedy pronouncement by this court as to the validity of the act, and as counsel of the respective parties have been heard upon the merits of the case and submitted the same to the court, sitting in banc, for determination, we have suspended consideration of the question as to the legal propriety of the procedural form in which the matter is presented.”

The question presented when viewed in the light of the two decisions first above mentioned reduces itself within a very narrow compass. Art. 7, § 1, of our constitution, dealing with the elective franchise, among other things, provides:

Ҥ 1. Every male citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election *** shall be qualified to vote at all elections for public officers. ***

“The legislature shall have the power to require the registration of the qualified electors as a requisite for voting, and shall regulate the manner, time and places of voting. The legislature shall enact such laws as will secure the secrecy of the ballot, the purity of elections and guard against the abuse of elective franchise. Not more than two members of the board of registration and not more than two judges of election shall belong to the same political party at the time of their appointment.” (Emphasis ours.)

When our constitution was adopted there was in force in New Mexico a territorial law of long standing requiring the personal presence of the voter at the polls and the manual delivery of his ballot to the election officials, reading as follows:

“All votes shall be by ballot, each voter being required to deliver his own vote in person.” L. 1851, p. 196, Code 1915, § 1999.

Other territorial statutes then in effect and employing the phrase “offer to vote” or other language of similar import (italicised by us in the quotations) are as follows:

“When any person offers to vote, whose qualifications are not personally known to any of the judges, he may be examined under oath as to said qualifications and those who take a false oath shall suffer the penalty prescribed by law for perjury.” L. 1851, p. 196, Code 1915, § 2006.

“Every person who is not a native citizen of the United States, or adopted citizen of this State, who may present himself to vote at any election in this State, shall be examined by the judges of election, in whose precinct he may apply to vote, and proving to the satisfaction of the said judges that he has legal letters of naturalization or of citizenship, he shall be allowed to vote; but should there still exist doubts of his right to vote, they shall act in accordance with the provisions of section 2018.” L. 1854-55, p. 142, Code 1915, § 2017.

“That it shall hereafter be unlawful for any person who is not a qualified elector, to vote, or to offer to vote at any election held in this State, or to register or offer to register as a voter; and it shall be unlawful for any persons to register or offer to register, or to vote or offer to vote in the name of another person; ***.” Code 1915, § 2055.

“If any person is refused registration by the judges of registration, he may make and present to the judges, his affidavit in writing, setting forth that the affiant is a citizen of the United States, that he has resided in the State of New Mexico for the twelve months next preceding, in the county for ninety days next preceding, and in the precinct in which he offers to register, for thirty days next preceding the next ensuing election, and that he is not disqualified for any reason from being registered as a voter and from voting at said election; ***.” 1915 Code, § 1964, L. 1889, c. 135, § 12.

[1] What we were called upon in the two cases mentioned to decide and what we now are asked to re-examine for the purpose of ascertaining whether we correctly decided it, is this: When the phrase “offers to vote” is employed in the portion of Constitution Art. 7, § 1, quoted hereinabove, is the personal presence of the voter contemplated in making the offer? We so held in Thompson v. Scheier and Baca v. Ortiz. The matter was thoroughly considered when it first was before us in the Thompson case and the conclusion announced in a unanimous opinion was deliberately reached. Within six months the question again was presented in the Baca case, re-examined and the decision reached in the former case adhered to in another unanimous opinion. Were we right in so holding? That is the single question asked of us to which after further painstaking consideration we feel compelled to give an affirmative answer.

It will be seen from an examination of the foregoing statutes that in at least four separate instances our territorial legislature had employed the phrase “offer to vote” or its equivalent in a sense unmistakably indicating and meaning a “personal” offer to vote or register, a conclusion rendered certain by the mandatory statutory requirement that each voter shall “be required to deliver his own vote in person.” Code 1915, § 1999. Significantly, too, the language chosen by the framers of our constitution for stating the qualifications of a voter finds its nearest counterpart in L. 1889, c. 135, § 12, Code 1915, § 1964, setting forth the qualifications upon registering to vote. In order to indicate the similarity in the language chosen, we set forth the same in parallel columns as follows:

“§ 1. Every male citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election *** shall be qualified to vote at all elections for public officers ***.” (Emphasis...