State Ex Rel. Romero v. Armijo., 4273.

• Decision Date: 24 December 1936
• Docket Number: No. 4273.,4273.
• Citation: 63 P.2d 1039,41 N.M. 40
• Parties: STATE ex rel. ROMEROv.ARMIJO.
• Court: New Mexico Supreme Court

41 N.M. 40

63 P.2d 1039

STATE ex rel. ROMERO

v.ARMIJO.

No. 4273.

Supreme Court of New Mexico.

Dec. 24, 1936.

Original prohibition proceeding by the State, on the relation of Roman A. Romero, against the Honorable Luis E. Armijo, judge of the district court of the Fourth judicial district of the state of New Mexico, sitting within and for Mora County, state of New Mexico.

Alternative writ made permanent.

Affidavit of disqualification filed as to judge after he has already tested sufficiency of petition for recount of votes by signing order directing same, and fixing time and place therefor, is timely where filed by proper party other than one at whose procurement judge signed such order. Laws 1933, c. 184; Laws 1935, c. 147, § 52; Comp.St.1929, § 41-620.

M. E. Noble, of Las Vegas, and E. R. Cooper, of Mora, for relator.

H. E. Blattman, of Las Vegas, for respondent.

SADLER, Chief Justice.

At the general election held on November 3, 1936, Roman A. Romero, one of the relators herein, and Jose D. Medina were rival candidates for the office of county commissioner for district 3 in Mora county, New Mex. Relator, appearing upon the face of the returns to have received a majority of the votes cast and canvassed, was issued a certificate of election by the county canvassing board. Thereupon, and within the time provided by law, the said Medina filed with the district clerk of Mora county his petition for a recount of the ballots cast and canvassed in precinct No. 9 of said county.

The petition was presented by the said Medina to respondent, as judge of the Fourth judicial district embracing Mora county, who signed an order fixing November 21, 1936, at 10 o'clock a. m., at the county courthouse in Mora, New Mex., as the time and place for conducting said recount and directed the summoning of the officials designated by statute in connection therewith and the giving of notice to the county chairmen of the dominant political parties.

Thereupon, B. F. Cruz, county chairman of Mora county for one of the dominant political parties, a relator herein, and one of the parties whom the statute required to be noticed in connection with such recount, appeared and filed an affidavit seeking the disqualification of respondent pursuant to Laws 1933, c. 184, upon the ground that he could not, according to the belief of affiant, preside impartially in said proceeding. Respondent having announced in open court that he considered said affidavit ineffective and that he would disregard the same, the relators filed in this court their petition for an alternative writ of prohibition. The writ was duly granted, restraining respondent from further proceeding in said cause and commanding him to show cause herein why said writ should not be made permanent. The matter is now before us upon said petition and respondent's amended answer. No facts are in dispute and we are called upon to decide only legal questions arising on the admitted facts.

Respondent's first important challenge to sufficiency of the affidavit of disqualification questions applicability of the statute, Laws 1933, c. 184, to a proceeding of this kind. It is pointed out that the statute authorizes the filing of such affidavits only in “actions or proceedings, civil or criminal,” and then asserted that a recount proceeding is neither. We are spared the necessity of deciding the nice question upon which this contention rests. For, whether an “action or proceeding, *** civil or criminal,” the 1935 amendments to the election code, Laws 1935, c. 147, § 52, specifically declare the provisions of Laws 1933, c. 184 (mistakenly designated chapter 84, but otherwise clearly identified), shall be applicable to such a proceeding as this. The sole challenge to the sufficiency of this legislative mandate lies in a contention advanced in oral argument, but not set up in the amended answer, that the title to chapter 147, Laws 1935, is not broad enough to cover the declared applicability of Laws 1933, c. 184, to proceedings under the election code. We find this contention to be without merit.

It is next urged upon us that a recount proceeding does not involve the exercise by respondent of any judicial function; that the duties of respondent as defined by 1929 Comp., § 41-620, relating to recount proceedings are purely ministerial. At least, it is argued that the only portion of said proceeding which in any view can be deemed to involve an exercise of judicial functions, viz., the passing upon sufficiency of the petition for recount and approval of the bond, already had been performed when the affidavit of disqualification was filed; that all acts remaining to be done being purely of a ministerial character, the statute is inapplicable.

In the case of State v. Helmick, 35 N. M. 219, 294 P. 316, we held that the duties of the district judge in such a proceeding are largely ministerial. He must be present at the recount or be there represented by some one designated by him. In his capacity as observer, although his duties are by no means unimportant, they are nevertheless ministerial as we heretofore have held in State v. Helmick, supra. If such duties were judicial, the judge could not...