Granito v. Grace, 5568

• Decision Date: 25 September 1952
• Docket Number: No. 5568,5568
• Citation: 1952 NMSC 88,56 N.M. 652,248 P.2d 210
• Parties: GRANITO v. GRACE, County Clerk.
• Court: New Mexico Supreme Court

Page 210

248 P.2d 210

56 N.M. 652

GRANITO v. GRACE, County Clerk.

No. 5568.

Supreme Court of New Mexico.

Sept. 25, 1952.

Frank Andrews, Santa Fe, for appellant.

Joe L. Martinez, Atty. Gen., Frank B. Zinn, Ass't Atty. Gen., Hilario Rubio, Ass't Atty. Gen., for appellee.

SADLER, Justice.

We are asked to hold that the amendment of 1941 Comp. Sec. 56-817, by L.1949, c. 123, Sec. 10, brought about such a change in the meaning of the section as originally enacted and construed by us in State ex rel. Van Schoyck v. Board of County Commissioners, 46 N.M. 472, 131 P.2d 278, that following the amendment a vacancy in the list of candidates of a political party entitled to representation on the official ballot necessary to fill all the offices provided for by law at the ensuing general election may now be filled by the appropriate political party committee of the state or county, as the case may be, even though there was no nomination in the primary election for the office as to which the vacancy exists.

The facts are simple and not in dispute. One Jose J. Roybal duly filed with the county clerk of Santa Fe County his declaration of candidacy for the office of County School Superintendent on the democratic ticket and paid the filing fee demanded. Subsequently, it developed that he was not eligible to become a candidate. Accordingly, he was notified by the county clerk, the respondent, that he was no eligible and that his declaration of candidacy theretofore filed had been voided. As a result of the foregoing facts, no other person having filed a declaration of candidacy for the office in question, the name of no candidate for the office appeared on the democratic ballot in the primary election held on May 6, 1952.

Thereafter, on May 29, 1952, the Democratic County Executive Committee designated the relator, J. M. Granito, to fill the vacancy on the ballot as the democratic candidate for the office mentioned and filed his name as such candidate with the respondent. The relator was promptly notified by respondent that he would decline to place his name on the ballot for use in the general election because the vacancy in question occurred prior and not subsequent to the primary election. The trial court having found the facts as related in a mandamus action instituted by the relator in the district court of Santa Fe County concluded he was not entitled to relief and that an alternative writ theretofore issued by the court should be quashed. Judgment was entered in conformity with the findings and conclusions adopted by the court from which the relator prosecutes this appeal.

In the Van Schoyck case, supra, we construed the Primary Election Code, 1941 Comp. Secs. 56-801 to 56-827, as a whole, of which the section in question is a part, and made two clear-cut decisions with respect to it. The first one was that the write-in method of nominating candidates for public office was unavailable, either to a political party participating in the primary, or to any member thereof seeking to place himself on the official ballot as his party's nominee in the general election. Our second holding in the case was that under the provisions of the act the vacancy referred to in Sec. 56-817, L.1938, Sp.Sess., c. 2, Sec. 17 was one occurring subsequent to the primary election and that the political party committee had no power to fill a vacancy existing at the time of the primary election due to the fact that there was no nomination for a given office in such election.

As already indicated, the relator disagrees with the second holding. He asks us to overrule the Van Schoyck case as unsound in so far as it confines the power to fill vacancies to such as occur subsequent to the primary election. If not so persuaded, he then seeks to have us declare the amendment accomplished by L.1949, c. 123, Sec. 10, so changes the meaning of the statute as to permit now what was denied by us under the statute as it stood originally, namely, the power to fill a vacancy existing at time of the primary election because there was no nomination made by a political party of a candidate for a particular office. We have carefully considered the arguments presented and think the trial court correctly ruled against the relator as to both contentions. In our opinion, the Van Schoyck case was correctly decided under the language of the questioned section as it stood at that time and we are not persuaded that the language of the amendment shows a legislative intent to accomplish a change in the respect urged upon us. We shall now give our reasons for so concluding.

The portion of the Primary Election Code construed by us in the Van Schoyck case which primarily controlled our decision in the matter of filling vacancies was section 17 of Chapter 2, Laws of 1938, Special Session, 1941 Comp. Sec. 56-817. The amendment was incident to the enactment of the so-called Pre-Primary Election Law in which some six sections of the Primary Election Code, of which the original section 17 was one, were amended in order to coordinate the provisions of the former act with the later one. Section 17 of the act as it originally appeared and as amended may be contrasted by quoting the amended section with the changes italicized. So quoted the amended section reads as follows:

'Section 10. That Section 56-817 of the New Mexico Statutes, 1941 Annotated, the same being Section 17 of [56 NM 655] Chapter 2 of the New Mexico Session Laws of 1938, be and the same hereby is amended to read as follows:

'Section 56-817. Vacancy existing after primary--Method of filing.--If after a primary election for any cause, including cases where there was no candidate for nomination after designation by convention, in the primary election, there shall be a vacancy in the list to candidates of a political party entitled to representation on the official ballot necessary to fill all the offices provided for by law at the ensuing general election, such vacancy may be filled by the political party committee of the state or county, as the case may be, by filing the name of its candidate for such office within twenty-five (25) days after such primary with the officer with whom nominating petitions are to be filed, and when so filed, the name shall be placed upon the official ballot for the ensuing general election as the party's candidate for such office. Any vacancy thereafter occurring may be filled in like manner by the party committee at any time before the official ballots are printed. If a vacancy occurs after the ballots are printed, the name of the person so selected as a candidate to fill such vacancy (may) be placed on said ballot by pasting the printed name of such candidate so selected and filed over the name of the candidate whose vacancy he fills on the official ballot.' L.1949, c. 123, Sec. 10.

The proper interpretation of the statute as amended must be reached by viewing the background of the amendment. The Primary Election Code had been enacted in 1938 at a special session of the legislature. L.1938, Sp.Sess., c. 2. The Van Schoyck case was decided in 1942, on the eve of the general election in November of that year. Actually, we announced our decision from the bench, following a conference subsequent to oral argument and filed the formal opinion in the case a few days after the election. The operation of the direct primary following enactment in 1938 had been observed in five elections, 1940 through 1948, and some dissatisfaction with the system having developed the legislature in 1949 enacted what became known as the Pre-Primary Convention Law. L.1949, c. 123. However, referendum petitions to repeal the law were filed under Const. Art. 4, Sec. 1, sufficient in number of signers to suspend its operation and to call for a vote on whether it should be repealed at the ensuing general election in November, 1950. The vote on the matter at the ensuing election failed to show...