State ex rel. Palmer v. Miller

• Decision Date: 13 April 1964
• Docket Number: No. 7608,7608
• Parties: STATE of New Mexico ex rel. Norman PALMER, Petitioner, v. Alberta MILLER, Secretary of State, State of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 416

391 P.2d 416

74 N.M. 129

STATE of New Mexico ex rel. Norman PALMER, Petitioner, v. Alberta MILLER, Secretary of State, State of New Mexico,

Respondent.

No. 7608.

Supreme Court of New Mexico.

April 13, 1964.

Harry Graham Balter, Los Angeles, Cal., Paul A. Phillips, Albuquerque, for petitioner.

Earl E. Hartley, Atty. Gen., Oliver E. Payne, Norman S. Thayer, Asst. Attys. Gen., Santa Fe, for respondent.

PER CURIAM:

The petitioner seeks to have his name placed on the primary ballot of the Democratic party as a candidate for the office of United States Senator at the primary election to be held on May 5, 1964.

To accomplish this end petitioner chose to proceed under the provisions of Chap. 317, Sec. 7, N.M.S.L.1963 (Sec. 3-11-7, N.M.S.A.1953, pocket supp.) whereby he could have his name included as a candidate by the timely filing of a declaration of candidacy together with a nominating petition (the forms are specified in the section) signed by qualified electors who are members of the Democratic party, 'resident in one-half [ 1/2] of the counties in the state equal to at least three per cent [3%] of the votes cast for the office for which said petition is (was) circulated.'

Upon filing of the declaration of candidacy and nominating petitions with respondent Secretary of State, petitioner was advised that his name would not be placed on the primary ballot because 'the number of signatures required by law' were not contained in the petition. To reverse this decision of the respondent, and to procure an order directing the respondent to place petitioner's name on the primary ballot a writ of mandamus is sought. Pursuant to the original jurisdiction vested in this court under Art. VI, Sec. 3, N.M.Const., we issued our alternative writ ordering respondent to place petitioner's name on the primary ballot as requested, or show cause why she had not done so. Respondent has filed her return to our order; the matter has been briefed and argued and is now ripe for decision which, because of the exigencies of time, must not be delayed.

Although numerous issues of fact and law are raised by respondent's answer, at the time of oral argument a stipulation was filed removing all questions of fact and leaving only two legal problems for determination.

From the stipulation it is clear, and upon oral argument it was agreed, that sufficient names are signed to the nominating petition to require petitioner's name to be listed if Sec. 3-11-7, supra, means 3% of the votes cast for the Democratic candidate, and not for all candidates, in the 1958 general election and not the 1960 general election.

We first consider whether the 3% requirement applies to votes cast only for the Democratic (party of petitioner) candidate as claimed by petitioner. For ease of understanding we set forth the pertinent language:

'* * * The petition shall be signed by a number of qualified electors resident in one-half [ 1/2] of the counties in the state equal to at least three per cent [3%] of the votes cast for the office for which said petition is being circulated, at the last general election held for such office, in each of the counties wherein such petition is circulated.'

It is petitioner's position that 'three per cent [3%] of the votes cast for the office * * * at the last general election' must be read to mean three per cent of the votes cast for the candidate of petitioner's party for such office at that election.

Generally speaking, it is petitioner's position that since the section involved is a part of a primary law it should apply to political parties and that the legislature could not have intended to refer to all votes cast; that the history of changes in methods of nominating candidates for public office in New Mexico indicates an intention to only refer to the vote of the political party; that the accepted rules of statutory construction require the interpretation placed on the words by petitioner that only other view would result in a strained and unreasonable meaning. Some additional contentions were also advanced in the briefs and on oral argument.

Historically, we find that New Mexico selected its candidates for public office through the party convention system from statehood until, in a special session in 1938, the state's first 'Primary Election Code' was adopted. This court had occasion to consider this legislation in State ex rel. Van Schoyck v. Board of County Com'rs of Lincoln County, 46 N.M. 472, 131 P.2d 278, where we said:

'We may notice judicially that one of the chief reasons for adopting the primary system of making nominations was to take the matter out of the hands of party conventions and committees and give it directly into the hands of the qualified electors of the parties participating therein. * * *'

By Chap. 123, N.M.S.L.1949, the legislature adopted as part of the nominating procedure, a pre-primary convention applicable to nominations for candidates for United States Senator, United States Representatives in Congress, Presidential Electors, and all Elective State Officers. Certain amendments were incorporated by Chap. 180, N.M.S.L.1951. In 1955, by Chap. 218, N.M.S.L.1955, the pre-primary convention was abolished and the direct primary was again embraced as the method for selection of nominees for all elective offices in the state. The next material change in method of nomination was accomplished when, in 1963, a pre-primary convention together with a primary election was again adopted by Chap. 317, N.M.S.L.1963.

Does this history of our legislation opint the way to an answer? If it does, it escapes us. Since 1938 we have had either a direct primary or a pre-primary convention and a direct primary. We have never returned to the exclusive convention system. However, that there has been something less than complete satisfaction with the methods undertaken since abandoning the convention system, would seem to be apparent. We find nothing in the changes from convention system to direct primary, to pre-primary convention plus a primary, back to a direct primary, and once more back to a pre-primary convention plus a primary, which we consider as clearly indicative that the 3% of the vote referred to in Sec. 3-11-7, supra, was intended by the legislature to refer to 3% of the vote by members of petitioner's party and not to 3% of the total vote. True, nominating is done by political party, but we see nothing in this fact which would militate against a standard other than party vote for determining the number of signatures to be required to place a name on a primary ballot. The formula stated is nothing more nor less than a basis for arriving at a number, and we perceive nothing shocking or inherently unreasonable in the method chosen.

We note the rules of statutory construction followed by this court for many years. Without restating them, we direct particular attention to In re Vigil's Estate, 38 N.M. 383, 34 P.2d 667, 93 A.L.R. 1506; Montoya v. McManus, 16 N.M. 381, 362...