Orchard v. Bd. of Com'rs of Sierra County

• Decision Date: 01 February 1938
• Docket Number: No. 4324.,4324.
• Citation: 42 N.M. 172,76 P.2d 41
• Parties: ORCHARD et al.v.BOARD OF COM'RS OF SIERRA COUNTY et al.
• Court: New Mexico Supreme Court

42 N.M. 172

76 P.2d 41

ORCHARD et al.

v.BOARD OF COM'RS OF SIERRA COUNTY et al.

No. 4324.

Supreme Court of New Mexico.

Feb. 1, 1938.

Error to District Court, Sierra County; George W. Hay, Judge.

Suit by Sadie Orchard and others against the Board of Commissioners of Sierra County and others, to enjoin the removal of the county seat of Sierra County from Hillsboro to Hot Springs. To review a decree for defendants, plaintiffs bring error.

Affirmed.

Quo warranto may be invoked against municipal corporations or quasi municipal corporations as well as private corporations to oust them from usurpation of franchise or power not authorized by charter or laws under which they are organized. Comp.St.1929, §§ 115-101, 115-104.

Edward D. Tittmann, of Hillsboro, for plaintiffs in error.

Ove E. Overson, of Hot Springs, Fred Nicholas, of Albuquerque, Frank H. Patton, Atty. Gen., John Baron Burg, Los Lunas, and Frederick Sherman, of Deming, for defendants in error.

BRICE, Justice.

This suit was brought to enjoin the removal of the county seat of Sierra County from Hillsboro in said county to Hot Springs in said county.

Plaintiffs (plaintiffs-in-error here) introduced no testimony at the trial of this case, but certain facts were stipulated by the parties, the substance of which is as follows:

That none of the precincts made returns conforming precisely to the requirements of the statute for returns in general elections; that the returns of nine precincts, though defective, showed either by certificate or tally, or both, the vote cast for and against the removal of the county seat. From these returns it appears there were 901 votes cast for the removal of the county seat to Hot Springs and 364 against such removal; that, subsequent to the time returns were filed with the county clerk, certificates were made by election officers, either on the returns or by affidavit, showing that in the nine precincts that had voted on the question and had made no returns of any kind that 1,104 of the ballots cast in said precincts were for the removal of the county seat to Hot Springs and 112 against such removal.

Some attempt was made to comply with the law hereafter set out in this opinion with regard to correcting the returns, but the application to the district court for a recount of the ballots was withdrawn, and evidence of the votes cast in the nine precincts was supplied in the manner we have stated.

Fraud was charged in the complaint, but the court found there was no evidence of it and we fail to discover any in the record.

At the trial of the case the court summoned the election officers, opened the ballot boxes, and caused the ballots to be recounted by the election officers in his presence. Affidavits were made by such officers, showing the result of the election in their respective precincts, which were admitted in evidence. An election officer from each precinct testified that the election on the question of removal of the county seat in his precinct was conducted in the same manner as that for state and county officers; that the figures given in the affidavit mentioned were a true recount of the ballots cast in his election precinct. The result of this recount varied but little from the count made by the Board of County Commissioners in the canvass of the election returns. The certificate of the Board of County Commissioners showed that the vote cast for Hot Springs as the county seat was 2,012, whereas the recount showed it was 2,038; that the vote cast against the removal of the county seat was 572, whereas the recount showed it was 577. This of course made no difference in the result.

The substance of the facts found by the court is as follows:

That on the 3d day of November, 1936, there was held in the county of Sierra, State of New Mexico, and each of the precincts thereof, an election for all state and county officers and for presidential electors, Senators, and Congressmen, and upon the question of whether the county seat of Sierra County should be removed from Hillsboro to Hot Springs in said county. The said election was conducted by judges and clerks theretofore appointed by the Board of County Commissioners of Sierra County, N. M. In each of the precincts of Sierra County the question of the removal of the county seat was orderly conducted and ballots on the question delivered by the election officials to each elector admitted to vote, and a fair opportunity given each elector to cast his vote upon the question.

That 2,038 votes were cast for the removal of the county seat from Hillsboro to Hot Springs, and 577 votes cast against such removal. There was no fraud, nor conspiracy to commit fraud, on the part of defendants, or any of them, in the obtaining of returns of said removal election, or in the canvass thereof, or in the issuing of a certificate thereof.

That there were no irregularities in the obtaining of the returns, in the canvass of the votes, or in the issuing of the certificates, as to the results thereof sufficient to change the true vote cast or to change the result of the election on the matter of the removal of the county seat.

That the certificate of election executed by the members of the Board of County Commissioners of Sierra County and attested by the county clerk was erroneous in that it was certified that the total vote cast for the removal of the county seat to Hot Springs was 2,012, whereas it was in fact 2,038; and it was erroneously certified that the total vote cast against the removal of the county seat was 572, whereas it was 577. That otherwise the recital of the facts, dates, and figures in said certificate is true and correct.

That there was no fraud, or conspiracy to commit fraud, in the calling and conducting of said election for the removal of the county seat from Hillsboro to Hot Springs.

That the ballots used at the polls in said election upon the question of the removal of the county seat were so worded and so arranged as to clearly explain the issue and direct the voter how to vote, and were not uncertain, ambiguous, or deceitful in their meaning. There is no proof that any voter was deceived thereby.

That the issues made by the complaint to the effect that officials failed to give proper and lawful notice of the election on the removal of the county seat; that the land tendered for the use of a courthouse was burdened with encumbrances; that the county seat election was illegal because the Legislature of New Mexico in creating Sierra County provided that “the county seat of said County of Sierra is hereby permanently located in the town of Hillsboro in the County of Sierra”; each and all, both as to facts and law, were made, tried, and adjudicated in that certain proceeding wherein Bird et al. (including the Board of County Commissioners and plaintiffs herein) were plaintiffs with others, and the defendants herein were defendants, numbered 2768 on the docket of the district court of Sierra County, N. M. No offer of proof of any facts supporting such allegations was made at any time in this proceeding.

That there was no proof of any illegal votes having been cast in said election for the removal of the county seat. Upon these facts the court concluded and decreed that Hot Springs was the county seat of Sierra County.

Section 3 of article 10 of the New Mexico Constitution is: “No county seat, where there are county buildings, shall be removed unless three-fifths of the votes cast by qualified electors on the question of removal at an election called and held as now or hereafter provided by law, be in favor of such removal. The proposition of removal shall not be submitted in the same county oftener than once in eight years.”

That part of the Statutes of New Mexico with reference to a change or removal of county seats, material to this case, is as follows:

“Whenever the citizens of any county in this state shall present a petition to the board of county commissioners signed by qualified electors of said county equal in number to at least one-half the legal votes cast at the last preceding general election in said county, asking for the removal of the county seat of said county to some other designated place, which petition shall be duly recorded in the records of said county, said board shall make an order directing that the proposition to remove the county seat to the place named in the petition, be submitted to a vote of the qualified electors of said county at the next general election, if the same is to occur within one year of the time of presenting said petition, otherwise at a special election to be called for that purpose at any time within two months from the date of presenting said petition.” Section 33-3501, N. M.Sts.Ann.1929.

“The county commissioners shall cause a certified copy of such order to be published in some newspaper of general circulation published in said county for four consecutive weeks immediately prior to such election, and by hand bills posted up at three of the most public places in each precinct at least four weeks prior to such election.

“The ballots to be voted at such election shall have printed thereon the words: For county seat -, with the name of the place for which the voter desires to cast his ballot either printed or written thereon. Such ballots shall be canvassed as in elections for county officers and the returns of such election shall be certified by the county clerk to the secretary of state together with a certified copy of the order of the county commissioners and a sworn certificate of the publication thereof, to be filed in the office of said secretary.” Section 33-3502, N.M.Sts.Ann.1929.

The statute (which was passed in 1909, prior to the adoption of the Constitution) further provides for the removal of the county seat, if the “proposition for the removal shall receive a majority of the votes cast at such election.”

There is no provision in the statutes of New Mexico for the contest of an election...