Chavez v. Hockenhull
| Decision Date | 31 December 1934 |
| Docket Number | No. 4079.,4079. |
| Citation | 39 P.2d 1027,39 N.M. 79 |
| Parties | CHAVEZv.HOCKENHULL, Governor, et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Proceeding by Dennis Chavez for a writ of mandamus to Andrew W. Hockenhull, Governor, and others, comprising the State Board of Canvassers, and such Board. On application to make an alternative writ permanent.
Application denied, and alternative writ discharged.
Statute providing that no ballot of unregistered voter shall be counted or canvassed is not addressed to state canvassing board, which canvasses returns. Comp.St.1929, §§ 41-209, 41-356.
A. T. Hannett, of Albuquerque, J. O. Seth, of Santa Fé, and Fred Wilson and Hugh B. Woodward, both of Albuquerque, for informant.
Frank H. Patton, Asst. Atty. Gen., Reed Holloman, of Santa Fé, George R. Craig, of Albuquerque, and O. O. Askren and J. D. Atwood, both of Roswell, for respondents.
The state canvassing board, composed of Governor A. W. Hockenhull, Chief Justice John C. Watson, and Secretary of State Marguerite P. Baca, engaged in their official duty of canvassing the returns from the general election held in New Mexico on November 6, 1934, were about to canvass the returns from the several precincts of San Miguel county. At such election Dennis Chavez and the present incumbent, Bronson M. Cutting, were rival candidates for a regular six-year term in the United States Senate.
Before the official canvass of the returns from San Miguel county had actually been made, but after announcement from the board of canvassers that they proposed to canvass the returns before them, the said Dennis Chavez as informant applied for, and was granted by this court, an alternative writ of mandamus commanding the respondents as the state board of canvassers to convene immediately upon service of the alternative writ and canvass all returns of the election from the several precincts and election districts of the state of New Mexico, excluding therefrom 66 named and described precincts in San Miguel county, and that said board issue a certificate of election in accordance with the result thereby shown to the informant, Dennis Chavez, or show cause, etc.
The basis for the issuance of the alternative writ is the charge that the returns from the precincts and election districts named, all in San Miguel county, N. M. disclose that there were included in said returns 1,616 ballots cast by unregistered voters which the statutes of New Mexico forbid being counted or canvassed; that the inclusion of said illegal votes in the canvass of said returns would change the result of the election as between the informant and his opponent, the informant having received 74,498 votes and his opponent 75,759 votes; that it further appears from said returns that in seven precincts and election districts from said county where a large number of unregistered votes were cast the election officials failed, as required by law, to put opposite the name of each voter the number of his ballot, so that, in the event of a contest, there would be no way of determining which of the ballots were legal and which illegal, and that in two precincts only part of the ballot numbers appear; that in four other precincts and election districts the combined vote received by informant and his opponent exceeds the total number of votes actually cast in said precincts; that in certain other precincts and election districts, seven to be exact, no tally was made in the pollbooks as required by law, and there was nothing on the face of said pollbooks to indicate the markings of the ballots for the respective candidates other than a list of the names of the voters and a certification in the back of said pollbooks as to the result.
It is further set out in the alternative writ that it appears from the returns as a whole that there was a concerted effort to defeat the will of the voters by “stuffing” the ballot boxes in said precincts and election districts in said county with unregistered votes, with the purpose of defeating the will of the people, and that such purpose will be realized and carried out if said votes are canvassed by respondents and included in the count as between informant and his opponent.
The matter is before us upon respondents' return in the form of an answer. The answer raises certain legal exceptions which are to be treated as a demurrer. Briefly, the legal exceptions are as follows:
(1) That, although in form mandamus, the relief actually sought is injunctive, which this court has no original jurisdiction to afford.
(2) That respondents are compelled to canvass all election returns certified and transmitted to the secretary of state by the election officers of the various precincts and election districts, and have no power to exclude from their canvass any returns properly certified; their power being limited to compelling the correction by proper election officials of irregular or improperly certified returns.
(3) That respondents' duties are wholly ministerial, being without power to inquire into or determine the legality of any vote cast and included in the canvass made by the precinct election officers.
(4) That the returns which respondents are required to canvass consist solely of the certificates of the officials of the various precinct and election districts certified and transmitted to the secretary of state by such officers, showing the number of votes cast for each candidate.
(5) That informant has an adequate remedy at law by way of contesting the election without jeopardizing the legal votes cast in said precincts and election districts.
(6) That it does not appear from the facts stated in the writ that the illegal ballots alleged to have been cast and which it is alleged cannot be identified are sufficient in number to change the result of the election.
Following the interposition of said legal exceptions, the answer contains certain general denials, some in the language of the charge, and pleads affirmatively that respondents have substantially complied with the provisions of 1929 Comp. § 41-356, in the performance of their duties. They further allege that the returns which they are required to canvass consist solely of the certificates of the precinct and district election officers which show the number of votes cast for the various candidates as required by 1929 Comp. § 41-102, but further state and allege that informant has demanded of respondents that they include in the returns canvassed by them the tally sheets and poll lists required to be prepared by said election officers, together with the certified copies of the registration lists of the various precincts and election districts, required by law to be transmitted to the secretary of state by the respective county clerks not later than fourteen days before the date of the election. This demand, respondents admit, they have overruled “on the ground that the said tally sheets, poll lists and certified copies of registration lists are not a part of the returns from the various precincts and election districts which by law they are required to canvass.”
When the informant charges 1,616 unregistered votes to be included in the returns, it is fair to say that he comprehends the returns as embracing the certified registration lists from the precincts in question on file in the office of the secretary of state. It is also a fair construction of the allegations of the writ to say that the charge of “stuffing” the ballot boxes with unregistered votes refers to the said 1,616 votes.
The genuineness of the returns before the board is not questioned except as participation of unregistered voters to the extent charged may raise a question of genuineness; that is to say, it is not averred that forged signatures of election officials are presented or that the returns do not come from the proper sources. Cf. Luce v. Mayhew, 13 Gray (Mass.) 83.
From the pleadings before us, it is to be taken as admitted that the returns come from proper sources bearing genuine signatures of the election officials actually officiating at said election. The charge is that said election officials from the various precincts involved permitted an aggregate of 1,616 illegal, because unregistered, persons to vote at said election; that the participation in said election of said 1,616 unregistered voters approximating 15 per cent. of the total vote cast in said county is sufficient to disclose a conspiracy or combination of illegal voting which impeaches the returns and warrants a refusal to canvass.
It is also urged (although informant's position is not confined to this contention) that the registration lists are a part of the “returns” before said board, and hence that the “returns” themselves disclose the vice pointed to; but further that, whether a part of the returns or not, the duly certified registration lists are a part of the official records of the office of the secretary of state; that the matters charged have been called to the attention of the board, can be readily ascertained by mere reference to official records in the same office in which the canvass is proceeding without the necessity of formal proof, and that it is the duty of said board to notice such obvious facts, and refuse to canvass.
Thus we are brought immediately to a consideration of the power and authority of canvassing boards, particularly, the state canvassing board. The extent of the board's powers must be deduced largely from the statute defining those powers. Article 5, § 2, N. M. Const., provides: ...
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