Ratliff v. Wingfield

• Decision Date: 08 September 1951
• Docket Number: No. 5377,5377
• Citation: 1951 NMSC 71,236 P.2d 725,55 N.M. 494
• Parties: RATLIFF v. WINGFIELD.
• Court: New Mexico Supreme Court

Page 725

236 P.2d 725

55 N.M. 494

RATLIFF v. WINGFIELD.

No. 5377.

Supreme Court of New Mexico.

Sept. 8, 1951.

Rehearing Denied Nov. 6, 1951.

Frazier, Quantius & Cusack, Roswell, for appellant.

Allan D. Walker, Robert J. Seller, Alamogordo, for appellee.

COMPTON, Justice.

The case involves an election contest.

The parties were opposing candidates for the office of Mayor at an election held in the village of Rudiso, contestant on the Non-partison ticket and contestee on the Citizen's ticket. From the returns as canvassed, contestant received 182 votes for the office and contestee received 189 votes.

The primary question is the sufficiency of the notice of contest to state a cause of action. The notice, excepting the part admitted by answer, reads:

'(8.) That the contestant received the majority of the legal votes cast in said election and is the duly elected Mayor of the said Village, for the reason,

'(9.) That among the votes counted for the contestee upon the canvass of the said election, there were numerous votes cast illegally, to-wit: in that the persons casting said votes were not qualified to vote in the said election, under the laws of the State of New Mexico, in that they had not actually resided in the municipality for thirty (30) days next preceding the date of election, as is by law required; that, moreover, they were, in many cases, non-residents of the County of Lincoln and in other cases, non-residents of the State of New Mexico, and that such illegal votes cast, counted and canvassed were in such number that they thereby indicated that the contestee had received a majority of all votes cast; said illegal votes being cast in favor of the contestee; whereas, if such illegal votes had not been cast, counted and canvassed the majority of the votes cast, counted and canvassed would have resulted in the election of the contestant; therefore the said contestant actually receiving the majority of the legal votes cast.

'(10.) The above mentioned allegations as to persons voting illegally are herewith set out in detail, with the grounds for the alleged illegality of the said votes; and such persons so voting are as follows: (Here follow the names of 27 persons)

'(11.) That there was a vote cast in favor of the contestant, which said vote was not counted nor included in the number of votes as shown by the said canvass of the said election. That such vote so cast and not included in the returns of the said election was the vote of Mrs. W. B. Ratliff, also known as Mrs. William Dillard Ratliff.' (Emphasis ours.)

The statute, Section 14-1303, 1941 Comp., defines the qualifications of electors of municipalities as follows: '* * * any person who, at the time of any election of municipal officers, would be a qualified elector under the laws of the state, for county officers, and shall have actually resided in the ward, in which he offers to vote, for thirty (30) days last preceding the election, shall be deemed a qualified voter, and all elections for municipal officers shall in all respects be held and conducted in the manner prescribed by law in cases of county elections. * * *' (Emphasis ours.)

Appellant points to a distinction between actual residence and legal residence, claiming that actual residence is not required of a voter. Unquestionably, there is a difference. In Berry v. Hull, 6 N.M. 643, 30 P. 936, the term 'actually resided' as employed in the statute, was construed simply to mean legal residence. It will be noted that the language used in the notice follows the language of the statute. It fairly informs appellant that the named persons voted for him, that their votes were illegal since they were non-residents of the municipality. We think these allegations sufficiently tender an issue of fact.

Appellant strongly argues constitutional questions. It is claimed that the title to Chapter 59, Laws of 1933, Section 14-1305, 1941 Comp., authorizing contest for municipal officers embraces more than one subject and that the subject of the act is not expressed in the title. Article 4,...