State Ex Rel. Abercrombie v. Dist. Court of Fourth Judicial Dist. Within, 3892.

• Decision Date: 10 July 1933
• Docket Number: NO. 3892.,3892.
• Citation: 24 P.2d 265,37 N.M. 407
• Parties: STATE ex rel. ABERCROMBIEv.DISTRICT COURT OF FOURTH JUDICIAL DIST. WITHIN AND FOR GUADALUPE COUNTY et al.
• Court: New Mexico Supreme Court

37 N.M. 407

24 P.2d 265

STATE ex rel. ABERCROMBIE

v.DISTRICT COURT OF FOURTH JUDICIAL DIST. WITHIN AND FOR GUADALUPE COUNTY et al.

NO. 3892.

Supreme Court of New Mexico.

July 10, 1933.

Appeal from District Court, Guadalupe County; Luis E. Armijo, Judge.

Original application for writ of prohibition by the State, on the relation of Mrs. Georgia Abercrombie, against the District Court of the Fourth Judicial District within and for Guadalupe County and Luis E. Armijo, Judge of the District Court of the Fourth Judicial District.

Alternative writ made permanent

Court must harmonize statutes relating to same subject, if possible, and give effect to each.

W. J. Barker, of Santa Fé, and M. E. Noble. of East Las Vegas, for relator.

D. J. Leahy and H. E. Blattman, both of Las Vegas, for respondent.

WATSON, Chief Justice.

This is an original proceeding instituted by application for a writ of prohibition. The cause has been heard upon alternative writ and answer.

The relator, on January 2, 1933, armed with a certificate of election, took possession of the office of county school superintendent of Guadalupe county, and now holds it. Mrs. Martinez, the unsuccessful candidate for the office, claiming to have been elected and to be entitled to it, and alleging the refusal of the district attorney to act upon her complaint, commenced an action in the name of the state to recover the office and its emoluments. Her action is admittedly planted upon the statute of quo warranto. 1929 Comp. St. c. 115 (section 115-101 et seq.).

The only question before us is whether a district court has jurisdiction to entertain such an action as that described. Relator does not question that this statute, being chapter 28, Laws 1919, gave the jurisdiction. It is now challenged on the single ground that a later statute, the election code (Laws 1927, c. 41, 1929 Comp. St. c. 41 [section 41-101 et seq.]), embracing (article 4 [section 41-401 et seq.]) provision for the contest of elections, set up an exclusive remedy in a case of this kind and superseded the former remedy by statutory quo warranto.

The 1927 act is a comprehensive election code. It contains complete provision for contest by any unsuccessful candidate for any public office. If he prevail, he may have judgment of possession, for all emoluments from the beginning of the term, and for costs. Under these provisions, we have held that “an unsuccessful candidate has a remedy by contest upon any ground or grounds which go to show that he was legally elected to the office.” Rogers v. Scott, 35 N. M. 446, 309 P. 441, 442.

Laws 1919, c. 28 (1929 Comp. St. c. 115), is a reformation and extension of the law of quo warranto. While it does not abolish the old “writs and proceedings,” it says that they need not be sued out in form, and that the remedies previously obtainable thereby may be “commenced” (obtained) by filing a complaint as in other civil actions. Specifying the appropriate occasions for such an action, the statute discloses that it covers the field in which theretofore, in this jurisdiction, it had been recognized as proper to apply to the court for leave to file an information in the nature of quo warranto. In addition, it expressly constitutes the proceeding an appropriate remedy to test the title, not only of an incumbent of an office, but of a rival claimant, who, as relator, may lay claim to it, and adds to the old remedy of ouster of the usurper the means by which the successful relator may recover the office, its emoluments, and his costs. The latter may even require the alleged usurper to give security for repayment of the emoluments or have an injunction to prevent their being paid to him pending the litigation. This statute, as construed in State ex rel. Hannett v. District Court, 30 N. M. 300, 233 P. 1002, affords to the unsuccessful candidate for a public office as complete a remedy as he could ask.

In America it has been generally considered that the common-law mode of testing title to office is by information in the nature of quo warranto under the Statute of Anne. The election contest is purely statutory. With the coming in of such statutes, the question has always arisen whether the new method is exclusive. Respondent contends that it is merely cumulative unless the statute has clearly expressed to the contrary, citing 51 C. J. 323. If that were accepted as the true rule, there is strong reason to urge that the 1927 Legislature clearly manifested an intention to adopt an exclusive procedure. It said: “Any action to contest an election shall be commenced by the filing of a verified notice of contest. ***” Section 41-602.

It is not easy to reconcile this with the present assumption to commence an action to contest an election “by the filing of a complaint as in other civil actions.”

In the note “Statutory Remedy for Contest of Election as Exclusive,” Ann. Cas. 1913E, 982, 985, numerous decisions have been collected. The author says:

“Majority rule. The authorities generally involving the question whether statutory remedies for contesting elections are exclusive appear to be in a state of conflict and uncertainty. It seems, however, that the rule adopted in the reported case, to the effect that the statutory remedy is exclusive, has found favor in at least the majority of jurisdictions. ***

“Minority rule. In some jurisdictions the rule has been adopted that while the legislature may properly adopt a special statutory remedy for contesting elections, such enactment does not of itself preclude a person from availing himself of such other remedies as may exist, and unless it is expressly or by necessary implication provided that the statutory remedy shall be exclusive, it merely operates as a cumulative remedy.”

We doubt if there is such a difference of judicial opinion as this statement would suggest. These decisions, to be of great value in determining the concensus or weight of authority, would require careful analysis and classification, since there are all kinds of statutory proceedings which might be called election contests, and many statutory modifications and adaptations of the procedure by information. Such a task we cannot undertake.

In the article on Elections, 9 R. C. L. § 147, it is said: “There is considerable difference of opinion, however, as to whether the enactment of a method for contesting an election excludes the use of common law remedies of mandamus and quo warranto. The conclusion supported by a majority of the cases seems to be that the statutory remedy is exclusive. This rule, it would seem, does not, however avoid all quo warranto proceedings concerning elective offices, but only such as are in reality contests between two persons for the same office, and there are numerous decisions holding to the doctrine that the establishment of a statutory method by which contests may be determined does not preclude the people in their sovereign capacity from inquiring by quo warranto...