Reese v. Dempsey, 4863.

• Decision Date: 10 August 1944
• Docket Number: No. 4863.,4863.
• Citation: 48 N.M. 417,152 P.2d 157
• Parties: REESEv.DEMPSEY et al.
• Court: New Mexico Supreme Court

48 N.M. 417

152 P.2d 157

REESE

v.DEMPSEY et al.

No. 4863.

Supreme Court of New Mexico.

Aug. 10, 1944.

Original proceeding by George L. Reese, Jr., for a writ of mandamus directing John J. Dempsey, Governor of the State of New Mexico, Daniel K. Sadler, Chief Justice of the Supreme Court of the State of New Mexico, and Cecilia Tafoya Cleveland, Secretary of State, comprising the State Board of Canvassers of the State of New Mexico, and the State Board of Canvassers to perform certain additional duties of the Board in connection with canvassing the returns from primary election and certifying the results thereof.

Alternative writ made absolute.

When a power is conferred by statute everything necessary to carry out the power and make if effectual and complete will be implied.

Mechem & Hannett, of Albuquerque, and Seth & Montgomery, of Santa Fe, for informant.

C. C. McCulloh, Atty. Gen., and Fred E. Wilson, of Albuquerque, for respondents.

MABRY, Justice.

Informant, George L. Reese, Jr., a candidate in the 1944 Democratic primary for nomination to the office of Justice of the Supreme Court, has brought this suit against the State Canvassing Board, composed of the Governor, Chief Justice of the Supreme Court, and the Secretary of State, seeking a writ of mandamus requiring said Board to perform what informant alleges to be certain additional duties of said Board in connection with canvassing the returns from said primary election and certifying the results thereof. An alternative writ was issued and this comes on upon application to make said alternative writ permanent.

The case centers about a dispute arising between informant and the State Canvassing Board during the progress of the canvass of the returns of said primary election as to the applicability of 1941 Comp.Laws, Sec. 56-349 (6). This section, so far as material to the particular point here under consideration, provides: “Whenever it appears *** in any state canvass, by a comparison of the certified index of registered electors, as filed in the Office of the secretary of state, with the poll books from any precinct or election division, that ballots have been cast by persons who are not registered and have been included by the precinct election officials in their returns, it shall be the duty of the canvassing board, state or county, as the case may be, before declaring the results of the election (provided said unregistered voters are sufficient in number to change the results), to refer the matter to the district court of the county in which the precinct where such unregistered votes were cast is located, and the district court in the presence of the chairmen of the two (2) dominant political parties, and such counsel as they may employ, shall forthwith proceed to hear and determine whether such votes were in fact registered or not.”

This section of the statute was enacted as Sec. 44, Chap. 147 of the Laws of 1935 immediately following the decision of this court in the case of Chavez v. Hockenhull, 39 N.M. 79, 39 P.2d 1027. In the Chavez case the court held that the “returns” of an election did not include copies of registration lists and poll books in the office of the Secretary of State. Under the act of 1935 such returns are now made to include the poll books and copies of the registration lists, or “certified index of registered electors, as filed in the Office of the secretary of state.”

Respondent urges that this section does not apply however to primary elections, contending that it was never meant to so apply, and if it were so intended, the language of such section is so involved and uncertain, and so inapplicable to primary elections, that it must be held inoperative and invalid as to such elections.

Respondents in their answer make and rely upon three points, viz., (1) 1941 Comp. Sec. 56-349 (6) is not applicable to the facts in this case in a primary election, and is entirely unworkable in any election as a judicial proceeding. (2) If applicable in a primary election, 1941 Comp. Sec. 56-349 (6) is limited in scope to wholly unregistered voters without concern with party affiliation, and is not mandatory. (3) It is not the duty of the State Canvassing Board of its own motion to compare poll books in the office of the Secretary of State with certified registration lists, if any, required by law to be filed in said office for use in primary elections for the purpose of discovering whether votes were cast by unregistered voters in such number as might affect any results to be canvassed by said Board.

It is contended by informant that Chap. 147 of the Laws of 1935 was a direct outgrowth of the Chavez case, supra, and recites legislative history to show that it was the purpose of both political parties represented in the 1935 legislature and of the committee of the legislature which, sensing the somewhat narrow limits, under the decision in Chavez v. Hockenhull, supra, within which the canvassing boards could operate in detecting and protecting against the not too difficult practice of this particular character of fraud-voting of unregistered voters-undertook forthwith to formulate this statute, to enlarge the scope of “returns” which were to be considered by both county and state canvassing boards. And, that the certified index of registered electors having by the 1935 act been made a part of the returns, that such index must be considered, and the procedural statute heretofore mentioned followed, by it as a canvassing board where it appears, as here alleged, that ballots have been cast by persons who are not registered as Democrats. There being no provision in the law for primary elections in 1935, the act was not made applicable to primary elections until thereafter and by the act of 1938, 1941 Comp. § 56-801 et seq., as amended by Chap. 152, Sec. 44 of the act of 1939 (1941 Comp. Sec. 56-349), when party primary elections came to supersede the convention system of nominating.

Informant pointed out before the State Canvassing Board, and now charges in his petition, that enough of such unregistered electors (meaning voters not shown to be Democrats) illegally voted in said Democratic primary, and for his opponent, Eugene D. Lujan, to change the result of the election if such unregistered votes be purged and deducted from the majority claimed by and otherwise shown to be the majority of, informant's opponent.

It appears that as to most of the counties in which such challenged votes arise that the lists, or “certified index of registered electors”, have in fact now been furnished by the respective county clerks to the Secretary of State's office, and that these were before the Canvassing Board at the time the canvass was in progress and when halted by the alternative writ heretofore directed to it.

It is suggested in the brief of informant that, in any event, there are now before the Canvassing Board enough of the completed and accurately certified indexes of such registered electors wherein the party affiliation is shown to give informant a clear majority of the votes cast in said primary if the votes of those not registered as Democrats are deducted from the majority which would otherwise, upon the face of the county and precinct certificates, show informant's opponent to have been nominated. But he shows that the Canvassing Board now refuses to examine for such comparison with the poll books even these completed certified indexes of the registered electors already in the hands of the Secretary of State and available to it. The refusal is based upon the theory that in no event does such duty devolve upon the Board canvassing primary election returns. That is to say, the respondents maintain that even though the lists of registrants now before them which do carry the information as to party affiliation these cannot be considered by them as parts of the returns to be canvassed if, in fact, the statute in question (Sec. 56-349 (6) applies, if at all, only to general, and not to primary, elections.

It might be noticed at this point that subsection 6 of Chapter 147, only a portion of which is hereinbefore set out, provides, as to the county canvass, that “the original affidavits of registration, constituting the official registration list and record in the office of the county clerk, *** may, in any county canvass, be considered a part of the official election returns.” Informant Reese emphasizes, in urging the point that party affiliation must be shown to make the “index” complete, his contention that there can be no reason why the County Canvassing Board should be better implemented (as they would be if respondents' position be sustained) to make the comparison of non-Democratic registrants with the Democratic voters as shown by the poll books, than should be the state board; that, while the county board, using the original affidavits of registration, which do carry the party designation, along with other information, has access to the information needed to correctly canvass the returns of a primary election as to county candidates, the state board does not have this essential information unless the “certified indexes” of such electors to be furnished the Secretary of State likewise show party affiliation.

If Section 56-349 (6) is applicable at all to primary elections, a question to be hereinafter resolved, it seems inescapable that the legislature would not have intended to afford county canvassing boards information and records not available to the State Canvassing Board, when both the county and state boards are required to perform identical duties in respect to the candidacies over which their respective jurisdiction extends. That is to say, the county boards will know by referring to the original affidavit of registration-the permanent record, or registration sheet-the party affiliation, if any, declared by every registrant. Nothing less than the party affiliation, so declared upon the original certificate,...