Crist v. Abbott

• Citation: 22 N.M. 417,163 P. 1085
• Decision Date: 07 March 1917
• Docket Number: No. 2045.,2045.
• Parties: CRISTv.ABBOTT, DISTRICT COURT JUDGE, ET AL.
• Court: Supreme Court of New Mexico

22 N.M. 417

163 P. 1085

CRIST

v.ABBOTT, DISTRICT COURT JUDGE, ET AL.

No. 2045.

Supreme Court of New Mexico.

March 7, 1917.

Syllabus by the Court.

Sections 2060 to 2080, inclusive, Code 1915, interpreted, and held not to authorize the district courts to entertain a contest proceeding for the office of district attorney.

A proceeding by prohibition against the district court to prevent the assumption of jurisdiction by that court to entertain a contest proceeding for the office of district attorney will not be denied on the ground that there is an adequate remedy by appeal; the remedy by appeal in such cases being deemed not to be adequate.

Prohibition by Jacob H. Crist against Edmund C. Abbott, Judge of the District Court of the First Judicial District of the State of New Mexico, and Alexander Read, to prohibit such court from proceeding to hear and try an election contest by Read against the relator. Writ made absolute.

A proceeding by prohibition against the district court to prevent the assumption of jurisdiction by that court to entertain a contest proceeding for the office of district attorney will not be denied on the ground that there is an adequate remedy by appeal; the remedy by appeal in such cases being deemed not to be adequate.

J. H. Crist and E. P. Davies, both of Santa Fé, for relator.

C. C. Catron and A. B. Renehan, both of Santa Fé, for respondents.

PARKER, J.

This is a proceeding in prohibition, the writ having been directed against the court and judge of the First judicial district in and for the county of Santa Fé and one Alexander Read. An election contest was instituted in said court by said Alexander Read against relator, Jacob H. Crist, to contest relator's right to the office of district attorney of the First judicial district, the respondent claiming to have been legally elected to that office at the last November election. The relator filed a demurrer to the notice of contest upon the ground that the same did not state a cause of action for the reason that the district court has no jurisdiction of an election contest for a state office. The district court overruled the demurrer, and thereupon relator brought this proceeding in this court to prohibit the district court from proceeding to hear and try said election contest. The respondent, district judge, answered the writ, admitting that he intends to entertain, pass upon, and proceed with, try, and decide said election contest, unless it be determined by this court that he has no jurisdiction in said cause. Respondent Read adopts the return of the district judge.

It is admitted by counsel for the parties that the office of district attorney is a state office, as we held in State ex rel. Ward v. Romero, 17 N. M. 88, 125 Pac. 617. It is likewise conceded by counsel that an election contest is a special proceeding, and authority for maintaining the same must be found in positive law, and that otherwise the right does not exist. This position of counsel is undoubtedly correct.

[1] 1. It is contended by relator that there is no statutory authority for contesting an election for a state office in this state, and that, therefore, the district court is without jurisdiction to entertain such proceeding. It is argued by respondent, on the contrary, that statutory authority exists for such a contest, and that therefore the district court had jurisdiction to entertain the proceeding, and the writ should be discharged. The argument in behalf of respondents proceeds upon the theory that all laws compiled in the Codification of 1915 which were taken or adopted from existing statutes should be construed as continuations thereof, and not as new enactments, as, indeed, is specifically provided in the last section of said codification. It is argued, therefore, that the true meaning of the sections of the codification relating to election contests can only be ascertainable from an examination of the original acts from which they were taken. The sections relating to election contests are sections 2066 to 2080, inclusive, of the Code of 1915. The original act in regard to election contests was enacted in 1851. Laws 1851-52, p. 196. The section of that act, of which section 2067, Code 1915, is the outgrowth, is section 52 of that act, and is as follows:

“If any candidate in any election hereafter held in this territory desires to contest any votes given to the opposing party, he shall give eight day's previous notice in writing to the party, before the contest is tried, specifying the names of the voters and other objections upon which he bases the contest.”

This section continued in this form until 1889, when, by section 8, c. 135, Laws of 1889, it was amended into its present form, which is as follows:

“If any candidate at any election hereafter held in this state desires to contest any votes given to the opposing party, or to contest the office for which he was a candidate for any other reason, he may do so by giving notice in writing to such opposing party before the contest is tried or heard, setting forth the grounds upon which he bases his contest.”

At the time of the passage of the act of 1851 there were only four elective offices in counties, namely, probate judge, sheriff, justice of the peace, and constable. By the terms of that act contests for the office of probate judge were to be heard by the circuit court, or by three justices of the peace, and contests for the office of sheriff, justice of the peace, or constable were to be heard before the probate court. Provision was also made in the act for contest for members of the House of Representatives and legislative council.

The words, “if any candidate in any election,” have led to some confusion in the minds of counsel for the respective parties. It is argued by respondents that the words, being general in character, convey legislative intent to allow an election contest in case of any kind of an election for any kind of an office. When examined in connection with the other provisions of the act of 1851, no such meaning is to be deduced therefrom. It is to be observed that the provisions of sections 49 and 50 of that act authorize a contest for any cause whatever known to the law, including the counting out of illegal votes, while section 52, which contains the words above quoted, refers solely to a contest of any illegal votes given to the opposing party. Section 52, therefore, is a provision, read in connection with the other sections of the original act, that any of the four classes of...