Montoya v. Gurule
| Decision Date | 11 December 1934 |
| Docket Number | No. 3960.,3960. |
| Citation | 38 P.2d 1118,39 N.M. 42 |
| Parties | MONTOYA et al.v.GURULE et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Error to District Court, San Miguel County; Taylor, Judge.
Election contest by Juan F. Gurule and others against Enrique P. Montoya and others. Judgment for contestants, and contestees bring error.
Reversed and remanded.
Jurisdiction to entertain contest of election is statutory. Comp.St.1929, § 41-601.
Crist & Pacheco, of Santa Fe, for plaintiffs in error.
M. E. Noble, of Las Vegas, for defendants in error.
At an election to choose members of the board of trustees of the Tecolote land grant, the parties to this proceeding in error were candidates. The defendants in error contested the declared election of the plaintiffs in error and prevailed.
The single question before us is whether the contest statute is applicable to an election of this kind. If not, the district court was without jurisdiction.
[1][2] 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.” 1929 Comp. St. § 41-601. 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.
There is controversy here as to whether the offices in question are “public offices.” This, in view of our other conclusions, we need not determine. We shall assume that they are.
But plaintiffs in error point out that the election law of the Tecolote grant (Id. § 29-1103) 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.
Defendants in error say that the test expressed, if it were to be deemed the criterion, is the actual issuance of certificates of election, not a statutory requirement therefor. They claim that this record shows that certificates were in fact issued. If we were put to it to decide this question of construction, we should hesitate before adopting the view of defendants in error. It might result that the board of trustees, not being under any statutory duty to issue formal certificates of election, would have it in its power to permit or to block a contest by the mere device of issuing or refusing to issue certificates.
But defendants in error contend that this is not the criterion of the right to contest; that there are many minor elections in this state, as to some of which it is prescribed and as to others not prescribed, that the result shall be evidenced by certificates of election; that it is not a reasonable test; and that the Legislature could not have intended to base so important a distinction upon a matter so formal and inconsequential.
We are impressed that this reasoning is sound. Yet, further consulting the statute, we find that the issuance of certificates of election has quite an important place in the legislative scheme. Not only does the event give rise to the right to institute the contest according to the expression above quoted, but the lapse of twenty days after that event terminates the right. Id. § 41-603. The whole plan of limiting the time for contesting elections hinges on the certificate.
Turning now to the recount provisions of the election code, immediately following its contest provisions, the issuance of certificates of election assumes perhaps greater importance. A candidate desiring a recount is to apply to the state canvassing board or to the district judge, according as the office involved is one for which the state canvassing board or one for which the county board of canvassers “issues a certificate of election.” Id. §§ 41-614, 41-618. If the recount shall change the result, the proper board “shall revoke the certificate of election already issued to any...
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Montoya v. McManus
...extent provided in the election contest statutes. State ex rel. Abercrombie v. District Court, 37 N.M. 407, 24 P.2d 265; Montoya v. Gurule, 39 N.M. 42, 38 P.2d 1118; State ex rel. Denton v. Vinyard, 55 N.M. 205, 230 P.2d Prior to the adoption of our rules of civil procedure for the district......
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Ostic v. Stephens
...205, 230 P.2d 238, that the right of contest if purely statutory, citing Crist v. Abbott, 22 N.M. 417, 163 P. 1085, and Montoya v. Gurule, 39 N.M. 42, 38 P.2d 1118, and that the contest statutes of the 1927 election code, were applicable only to general election for state, district, and cou......
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Hartley v. Board of County Com'rs of San Miguel County
...of contest and the jurisdiction to entertain it must be found in the Act itself, and no such right is provided by the Act. Montoya v. Gurule, 39 N.M. 42, 38 P.2d 1118; Auge v. Owen, 39 N.M. 470, 49 P.2d 1134. Compare Orchard v. Board of Com'rs of Sierra County, 42 N.M. 172, 76 P.2d 41; Stat......
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Thompson v. Robinson
...by third-place finisher resulted in holding that election winner was ineligible because of lack of residency). Cf. Montoya v. Gurule, 39 N.M. 42, 38 P.2d 1118 (1934) (election contest not available to challenge election of land grant trustees where code applied only to state, district and c......