Ostic v. Stephens

• Decision Date: 14 August 1951
• Docket Number: No. 5430,5430
• Citation: 55 N.M. 497,1951 NMSC 63,236 P.2d 727
• Parties: OSTIC v. STEPHENS.
• Court: New Mexico Supreme Court

Page 727

236 P.2d 727

55 N.M. 497

OSTIC v. STEPHENS.

No. 5430.

Supreme Court of New Mexico.

Aug. 14, 1951.

Rehearing Denied Nov. 6, 1951.

James L. Briscoe, Tucumcari, for appellant.

C. C. Davidson, Tucumcari, for appellee.

COMPTON, Justice.

The case involves an election contest. The principal question is whether Chapter 59, Laws of 1933, section 14-1305, 1941 Comp. providing for election contests for the various municipal officers, including aldermen and trustees, includes contest for officers of municipalities operating under the commission form of government pursuant to the provisions of Chapter 21, Laws of 1921, and acts amendatory thereto. 1941 Comp. Sec. 14-1101 et seq. If not, the district court was without jurisdiction to entertain the contest.

The City of Tucumcari had previously adopted the commission form of government. Appellee and one, B. L. Jimenez, were opposing candidates for the office of commissioners of District 1. They complied with the provisions of the act, section 14-1110, 1941 Comp., by filing statements of their proposed candidacy supported by the affidavits of two other qualified voters of the city that they were duly qualified, etc. No other candidate having filed for the office, the official ballot included their names only. At an election held on January 8, 1951, upon the face of the returns as canvassed, Jimenez received 324 votes, appellee 498 votes and appellant 537 votes. Appellant was declared elected and a certificate of election was issued to him.

On January 17, 1951, appellee filed notice of contest which he denominates a complaint and the same was personally served upon appellant on the 18th day of January, 1951. It alleges that 537 persons wrote the name of appellant in ballots cast at the election, that they were illegal and that appellee received a plurality of the legal votes cast.

Appellant moved for a dismissal of the cause on the ground that the court was without jurisdiction to entertain contest. The motion was overruled and on the 9th day of March, thereafter, an answer was filed by him denying certain allegations and admitting others. The sufficiency of the notice, or facts stated, was not questioned. Appellee then moved for judgment on the pleadings for reasons, among others, that appellant had failed to file an answer to the notice of contest and serve a copy thereof on contestant within twenty days from and after the service of the notice. From an order sustaining the motion, appellant appeals.

It is provided by 1941 Comp., Sec. 14-1110, relating to elections giverned by commission form of government, as follows: 'Any qualified voter shall be eligible to any elective office and may have his name placed upon the official ballot by filing with the city clerk, not more than one (1) month, nor less than two (2) weeks before the date of the election, a statement of his proposed candidacy, together with an affidavit signed by two (2) other qualified voters of the city, that he is duly qualified under the law, not suffering any legal disability, temporary or permanent. If no more candidates qualify than there are places to be filled they shall be declared elected without a vote, upon the certificate of the city clerk. If no candidate qualifies in the manner prescribed, the ballots shall be printed without any names, and it shall be lawful for any voter to write the names of any qualified electors upon the ballot.' (Emphasis ours.)

It will be noted that the only condition under which voters are authorized to write in the names of any qualified electors upon the ballot as a candidate for any particular office is when no candidate qualifies in the manner prescribed, etc. If no more candidates qualify than there are places to be filled they are to be declared elected without a vote, upon the certificate of the city clerk. There being two candidates in this case, for the single office of city commissioner, the electorate was privileged to vote for one or the other of the two who had qualified and whose names appeared on the ballot. In mentioning the condition under which a write-in ballot might be cast, the legislature denied the employment of this method under any other condition. Inclusio unius est exclusio alterius. Thurman v. Grimes, 35 N.M. 498, 1 P.2d 972.

It is contended by appellant that the term 'municipal officers,' appearing in the 1927 election code, section 56-601 et seq., 1941 Comp., does not include municipal officers operating under the commission form of government, hence the court was without jurisdiction in the matter.

We held in State ex rel. Denton v. Vinyard, 55 N.M. 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 county offices. It will be observed that elections for city, town, and village officers are specifically excepted from its provisions, 56-720, 1941 Comp. But the...