Montoya v. McManus

Citation362 P.2d 771,68 N.M. 381,1961 NMSC 60
Decision Date10 May 1961
Docket NumberNo. 6933,6933
PartiesJoe A. MONTOYA, Petitioner, v. John B. McMANUS, Jr., District Judge, Division One, Second Judicial District of the State of New Mexico, Respondent.
CourtSupreme Court of New Mexico

Bigbee & Stephenson, Santiago E. Campos, Sante Fe, for petitioner.

A. T. Hannett, Albuquerque, M. W. Hamilton, Robert E. Fox, Santa Fe, for respondent and Tom Bolack.

GEORGE L. REESE, District Judge.

On the petition of Joe A. Montoya we issued our alternative writ of prohibition and mandamus directed to the respondent, John B. McManus, Jr., District Judge, Second Judicial District, Bernalillo County.

The writ relates to the actions of the respondent in an election contest instituted in that court by the petitioner against Tom Bolack who was the successful candidate for Lieutenant Governor of New Mexico in the November, 1960 election. Answers to the writ were filed by the respondent and by Tom Bolack who asserted that he is the real party in interest. The answers plead identical defenses and the same attorneys represent both answering parties. No additional reference need be made to Tom Bolack as a party to these proceedings.

The pleadings in this action disclose that the election contest is at issue but no testimony has been taken and there is now pending therein a motion to dismiss filed by the contestee on March 2, 1961. That motion is grounded on the failure of the contestant, Montoya, to comply with a ruling made by the respondent on February 21, 1961, to the effect that the contestant and contestee should each, by March 14, 1961, file a bond in the amount of $25,000, 'said bond to be of the commercial surety type.' In making this ruling the respondent relied upon the provisions of Sec. 3-9-10, N.M.S.A.1953.

The filing of the motion to dismiss prior to March 14, 1961, was due to the filing by the contestant on February 24, 1961, of an affidavit in which he made oath that 'he is too poor to obtain such a bond,' and that 'he is too poor to pay the costs of the above-entitled and numbered cause.'

After the filing of the poverty affidavit, a hearing before the respondent occurred on March 11, 1961, relating to the legal effect of such affidavit on the requirements of Sec. 3-9-10, N.M.S.A.1953. During said hearing petitioner presented to the respondent an instrument entitled in the contest and designated 'Cost Bond.' This instrument omitting the title is in words and figures as follows:



That I, Joe A. Montoya, Contestant above named, am held and firmly bound unto the STATE OF NEW MEXICO in a sum equal to the amount of all costs test may be adjudged against me, for the payment of which well and truly to be made I bind myself, my heirs, executors, administrators firmly by these presents.

Sealed with my seal and dated this 10th day of March, 1961.

The condition of the foregoing obligation is such that whereas I am Contestant in the above-entitled and numbered cause which is pending in the above specified Court which said cause is an election contest.

Now, if I shall pay all costs that may be lawfully adjudged against me in the aforesaid cause, then this obligation shall be null and void; otherwise to remain in full force and effect.

/s/ Joe A. Montoya (L.S.)

Joe A. Montoya

Subscribed and sworn to before me this 10th day of March, 1961.

/s/ Mary E. Suman

Notary Public

My commission expires:

July 23, 1961.'

The respondent, by letter opinion dated March 13, 1961, ruled that the tendered bond 'is inconsistent with the contestant's pauper's affidavit and, further, is not the type bond contemplated by the Court, and therefore, it will not be approved.' In the same opinion the respondent ruled that an election contest is a special proceeding and that the pauper's oath statute, Sec. 25-1-14, N.M.S.A.1953, is not applicable thereto.

Respondent admits that unless otherwise directed by this court he will enter a formal order requiring petitioner to file a $25,000 commercial surety type bond and will refuse to proceed further in the hearing or determining of the contest proceeding unless the petitioner files such bond.

We issued our alternative writ commanding the respondent to desist and refrain from entering an order requiring the petitioner to furnish and file a bond in the amount of $25,000 of commercial surety type, and further commanding the respondent to expeditiously proceed to hear and determine the issues in the contest case without first requiring petitioner to file any bond whatever, or, alternatively, to expeditiously proceed to hear and determine said cause upon petitioner filing a bond substantially in the form theretofore tendered to respondent on March 11, 1961, or that he show cause why the writ should not be made permanent.

The first point argued by petitioner in support of the writ is that his 'too poor' affidavit relieves him from the cost bond requirements of the election contest law.

The statute relied upon by petitioner is compiled as Sec. 25-1-14, N.M.S.A.1953, and reads as follows:

'If any person wishing to institute a suit, or having done so, shall make oath that he is too poor to pay the costs, he shall have all and any process of the court free of costs.'

This statute has been a part of the procedural law of New Mexico since its enactment in 1851, but it has seldom been mentioned in our opinions.

The territorial supreme court in the case of Bearup v. Coffey, 9 N.M. 500, 55 P. 289, considered this section and other sections of the then Code of Civil Procedure as evincing a clear legislative intent, 'that the courts of justice shall be open to every person, rich or poor, who has suffered a legal injury to his lands, goods, person or reputation.'

With this purpose of the statute in mind we say that one claiming to have won an elective office and seeking to overturn the decision of the election officials to the contrary does not thereby demonstrate that he has suffered 'a legal injury to his lands, goods, person, or reputation.'

The right to hold office is not a property right nor is it a vested one. State ex rel. Ulrick v. Sanchez, 32 N.M. 265, 255 P. 1077; Reese v. Dempsey, 48 N.M. 417, 152 P.2d 157.

Furthermore an election contest is a special proceeding unknown to the common law. Vigil v. Pradt, 5 N.M. 161, 20 P. 795; Gonzales v. Gallegos, 10 N.M. 372, 62 P. 1103; Crist v. Abbott, 22 N.M. 417, 163 P. 1085; and its provisions must be strictly followed, Gallagher v. Linwood, 30 N.M. 211, 231 P. 627, 37 A.L.R. 664. A contestant has a right to contest only in the manner and to the 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 238.

Prior to the adoption of our rules of civil procedure for the district courts, none of the rules of procedure applicable in civil actions were applicable to an election contest. Hannett v. Mowrer, 32 N.M. 231, 255 P. 636; Bryan v. Barnett, 35 N.M. 207, 292 P. 611.

Under the express language of Rule 1, Sec. 21-1-1(1), N.M.S.A.1953, declaring the scope of our rules of civil procedure for district courts, special statutory proceedings are excluded from their operation where existing rules of procedure applicable thereto are inconsistent with such general rules. Trujillo v. Trujillo, 52 N.M. 258, 197 P.2d 421, an election contest case.

The poverty statute is certainly inconsistent with the provisions of the election contest law relating to costs and expenses incident to a contest.

Section 3-9-10, N.M.S.A.1953, provides as follows:

'3-9-10. Trial--Testimony--Appointment of examiners.--All issues of law and fact shall be tried by the district judge, and it shall be his duty to hear and determine such issues without delay and as speedily as possible. Upon application of either party the court shall appoint examiners to take testimony in as many precincts or election districts as are specified in such application to the end that all testimony may be taken within three (3) months after cause is at issue. Unless the examiner is a competent stenographer the court shall appoint a competent stenographer to assist in taking such testimony, and the examiner may appoint an interpreter when necessary at compensation to be fixed by the court. In all cases where the testimony is taken by an examiner, such testimony shall be reduced to writing and reported to the court, and whether the testimony is taken before the court or an examiner, the stenographic notes shall be preserved until transcribed and the transcript settled as a bill of exceptions or certified for appeal. The court shall, prior to the toking of any testimony, require the party in whose behalf such testimony is to be taken to make adequate deposit or furnish security to cover the costs of taking testimony, including compensation and actual traveling expenses of examiners, stenographers and interpreters, and witness fees, and shall require each party to furnish bond for the payment of all costs that may be adjudged against such party.' (Italics supplied.)

The last paragraph of the quoted statute contains mandatory language leaving no room for the application of the poverty statute. The courts uniformly hold such language to be mandatory.

The cases cited in 18 Am.Jur., Elections, p. 385, Sec. 322, fully support the text:

'A statutory requirement that a contestant give security for costs or that a candidate demanding a recount make a stated deposit or furnish security has generally been regarded as a jurisdictional prerequisite, making it impossible to hear the contest or conduct the recount in the event of noncompliance with such requirement.'

We, by way of strong dicta, approved a similar statement of this general rule in State ex rel. Besse v. District Court, Fourth District, 31 N.M. 82, 239 P. 452. See, also, note ...

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