Denton, State ex rel., v. Vinyard
| Decision Date | 11 April 1951 |
| Docket Number | 5363,Nos. 5362,s. 5362 |
| Parties | STATE ex rel. DENTON et al. v. VINYARD, Mayor of City of Clovis et al. (two cases). |
| Court | New Mexico Supreme Court |
Dee C. Blythe, Clovis, for plaintiffs-appellants.
Gore, Babbitt & Nieves, Clovis, for appellees.
The questions presented stem from a local option election, held in the City of Clovis on the question whether alcoholic liquor may be sold therein. There were 2,788 votes against and 2,713 for the proposition. The canvassing board, appellees here, certified that a majority of the ballots cast were against the sale of alcoholic liquor within the municipality.
Petitioning for a recount, appellants allege that error or fraud has been committed by the election officials in counting, tallying and certifying, sufficient to change the results of the election. The trial court, of its own motion, dismissed the petition for want of jurisdiction; thereupon, appellants filed notice of contest alleging fraud in the conduct of the election sufficient to change the result. Upon motion, the notice of contest was similarly dismissed. The cases are consolidated for purpose of submission and consideration.
Appellants contend (a) that the general statutes authorizing recount of ballots and election contest apply to local option elections; (b) that the actions should have been treated by the court either as proceedings in mandamus or for declaratory judgment; and (c) that the court should have exercised general equity jurisdiction.
The local option statute, 61-301, 1941 Comp., provides that elections shall be conducted in a manner provided by law for general elections. The section reads: 'Such election shall be conducted in a manner provided by law for general elections within said county or city, except as herein provided.'
The sections relating to recount and contest read:
'Whenever any candidate for any office for which the state canvassing board issues a certificate of election shall have reason to believe that any error or fraud has been committed by the election officers of any precinct or election district in counting or tallying the ballots or certifying the result of any election whereby the result of the election in such precinct or election district has not been correctly determined, declared or certified, such candidate may within six (6) days after completion of the canvass by the state canvassing board have a recount of the ballots cast in such precinct or election district.' Sec. 56-614, 1941 Comp.
Identical questions have been decided. The right of recount and contest are purely statutory. In Crist v. Abbott, 22 N.M. 417, 163 P. 1085, 1087, the court in holding that it was without jurisdiction to entertain contest proceedings, said: 'It follows from the foregoing analysis of the statutes that we have no law including the subject-matter of contests for state offices, or procedure for trial of such contests in the district or any other courts of the state, and consequently the district court in the pending case is without jurisdiction to entertain any such proceeding.'
In Montoya v. Gurule, 39 N.M. 42, 38 P.2d 1118, the court held that without statutory authority it was without jurisdiction to entertain recount or contest proceedings, saying:
'By 'the 1927 Election Code' it is provided that 'any unsuccessful candidate for any public office may contest the election of the candidate to whom certificate of election has been issued in the manner herein provided.' * * * Upon this provision, defendants in error are compelled to rely, it being well understood that the right of contest and the jurisdiction to entertain it must be found in the statute law.
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'But plaintiffs in error point out that the election law of the Tecolote grant * * * makes no provision for the issuance of certificates of election to the successful candidate. Hence, they contend, they are not within the statutory description of those whose election may be contested.
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'This brings us to the result urged by plaintiffs in error, though for a somewhat different reason. The contest provisions of the election code are inapplicable to land grant elections, not because the particular grant statute fails to require issuance of certificates of election, but because the Legislature, in framing the contest and recount provisions of the code, contemplated their applicability to those elections only for which the code makes provision, the general elections for state, district, and county offices. (Emphasis ours.)
'This conclusion is fortified, and we think made necessary, by another provision of the election code.
"The provisions of this act shall not apply to elections for justices of the peace, constables, school directors, municipal boards of education, officers of irrigation, drainage or conservancy districts, officers of acequias or community ditches, city, town or village officers, or elections for issuance of...
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Curtis v. Oliver
...a state statutory right to a discretionary recount." Response at 9 (citing Denton, State ex rel. v. Vinyard, 1951-NMSC-030, ¶ 6, 55 N.M. 205, 230 P.2d 238, 239 ("The right of recount and contest are purely statutory.")). Secretary Oliver characterizes the Libertarian Plaintiffs’ constitutio......
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...an election only in the manner and to the extent prescribed by statute." That proposition can be traced back to State ex rel. Denton v. Vinyard, 55 N.M. 205, 230 P.2d 238 (1951). The issue in Vinyard was whether the trial court properly dismissed the case for lack of jurisdiction. See id. a......
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Laumbach v. Board of County Com'rs of San Miguel County, 5924
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