State Ex Rel. Scott v. Helmick, s. 3650-3652.

• Decision Date: 12 December 1930
• Docket Number: Nos. 3650-3652.,s. 3650-3652.
• Parties: STATE ex rel. SCOTTv.HELMICK, Judge of Second Judicial District Court et al.SCOTTv.CAMPBELL et al.SAMEv.SECOND JUDICIAL DISTRICT COURT et al.
• Court: New Mexico Supreme Court

35 N.M. 219

294 P. 316

STATE ex rel. SCOTT

v.HELMICK, Judge of Second Judicial District Court et al.SCOTT

v.CAMPBELL et al.SAME

v.SECOND JUDICIAL DISTRICT COURT et al.

Nos. 3650-3652.

Supreme Court of New Mexico.

Dec. 12, 1930.

Syllabus by the Court.

Duty of district judge to be present during recount of election ballots and certify accordingly is ministerial; duty of judge to be present at recount of ballots does not include jurisdiction to hear charges of fraud, annul certificates of recount, or direct county board of canvassers (Comp. St. 1929, §§ 41-619, 41-620).

While, under 1929 Comp. § 41-619, judicial power is conferred upon district courts to hear applications in special proceedings for recount of ballots, the duty conferred upon district judges by 1929 Comp. § 41-620, to meet with the county clerk and the election officials, to be present during the recount in person or by delegate, and to certify that the recount was made in his presence is ministerial, and does not include jurisdiction to hear and determine charges of fraud occurring between the original count and the recount, or to annul the certificates of recount or to direct the county board of canvassers as to its subseqeunt duty.

Supreme Court held without jurisdiction to mandamus district judge to certify that recount of ballots was made in his presence; district judge in recounting ballots is not “state officer board or commission or inferior court” within provision limiting Supreme Court's jurisdiction in mandamus (Comp. St. 1929, § 41-690; Const. art. 6, § 3).

The Supreme Court is without jurisdiction to mandamus a district judge to certify, pursuant to 1929 Comp. § 41-620, that a recount of ballots was made in his presence, since his status in the performance of such duty is not that of a state officer, board or commission or of an inferior court, to whom only this court's writ of mandamus may run. Const. art. VI, § 3.

Original proceedings by the State, on the relation of Lucy B. Scott, for mandamus, to be directed to Milton J. Helmick, Judge of the Second Judicial District, and another; and proceedings by Lucy B. Scott for writ of prohibition opposed by Roy O. Campbell and others, county commissioners sitting and acting as County Canvassing Board of the county of Bernalillo; and prohibition proceedings by Lucy B. Scott opposed by the Second Judicial District Court of Bernalillo County, and Milton J. Helmick as judge thereof.

Alternative writ of mandamus and alternative writ of prohibition against Roy O. Campbell and others dissolved, and respondents discharged, and alternative writ of prohibition against Second Judicial District Court made absolute.

The Supreme Court is without jurisdiction to mandamus a district judge to certify, pursuant to 1929 Comp. § 41-620, that a recount of ballots was made in his presence, since his status in the performance of such duty is not that of a state officer, board or commission or of an inferior court, to whom only this court's writ of mandamus may run. Const. art. VI, § 3.

R. P. Barnes and George R. Craig, both of Albuquerque, for relator and petitioner.

J. S. Vaught, of Albuquerque for respondents.

CATRON, J.

Original proceeding in mandamus, No. 3650, against Milton J. Helmick, district judge, et al.; original proceeding in prohibition, No. 3651, against Bernalillo county commissioners, as county canvassing board; original proceeding in prohibition against Second judicial district court, Bernalillo county, and Milton J. Helmick, judge thereof. By consent, argued and submitted as one cause.

At the general election of November 4, 1930, Mrs. Will Rodgers and Mrs. Lucy Scott were the respective democratic and republican candidates for the office of county clerk of Bernalillo county. The return of the canvass by the county board of canvassers gave Mrs. Rodgers 7,039 votes and Mrs. Scott 6,946 votes. Within six days after the completion of the canvass by the county board of canvassers, Mrs. Scott made application to the judge of the district court of Bernalillo county for a recount of the votes cast at said election in certain precincts and election districts, which said application was filed in the district court of Bernalillo county as cause No. 18586. Upon said application, the Hon. Milton J. Helmick, judge of said district court, on November 18, 1930, entered an order directing a recount of the votes in said precincts and election districts, designating November 21, 1930, and the county courthouse of Bernalillo county, as the time and place therefor, and ordering the county clerk to issue summons to the election officers of said precincts and election districts, commanding them to attend at the time and place designated and make such recount, and that such recount be held, determined, and certified as prescribed by law. The order further provided that the county chairman of each dominant political party be notified of the time and place fixed for such recount. In said order the district judge designated W. H. McMains to act for him in such recount.

The election officers met at the time and place designated, and, in the presence of the county clerk and W. H. McMains, a recount of the votes for county clerk in the designated precincts and election districts was made. At the conclusion of the recount, and on November 21, 1930, the election officers certified the result thereof. The certificates so made, compared with the original canvass, show a gain of votes for Mrs. Scott and a loss for Mrs. Rodgers sufficient to change the result of the election and entitle Mrs. Scott to the certificate of election.

The certificates so made, in so far as the same are contained in the record before us, disclose a lack of uniformity as to form and contents. They do, however, disclose that the election officers believed the original count of the votes made by them to be correct, and that the ballot boxes had been tampered with and votes changed between the time of the original count and the recount. From some of the certificates it appears that for such reasons some of the election officers either refused to recount the votes, or refused to certify to the correctness of the recount, and that they only did so upon some order of the court made November 21, 1930, which order, however, is not contained in the record before us, but which apparently was an order by the court directing the election officials to recount the ballots and certify the result to the board of county commissioners, the county board of canvassers.

On November 25, 1930, W. H. McMains, who had been designated by the district judge to act for him in such recount, filed a report with the clerk of the court in cause No. 18586, the recount proceeding, wherein he set forth facts disclosed by the various certificates of recount signed by the election officials, also other facts within his own knowledge, all to the effect that the ballot boxes had been tampered with and the votes changed between the time of the original count and sealing thereof and the time of the recount, and stating:

“That in view of the statement of the election officials and the obvious tampering with ballots after they had left the hands of the voters, your representative is unable to authenticate the correctness of the recount, and therefore declines to sign the certificate of recount as your representative or transmit the same to the Board of County Commissioners unless ordered by the Court to do so.”

On November 25, 1930, the court made and entered the following order:

“On reading the report of W. H. McMains, representative of the Court herein, it is ordered that hearing on said report be had at ten o'clock, A. M., November 26, 1930; the Clerk of this Court issue subpoenas for the election officials who made the said certificates for them to appear and testify at said hearing, and that attorneys for interested parties be notified of said hearing.”

At the inception of said hearing attorneys for Mrs. Scott objected thereto upon the ground that a recount proceeding is not a judicial proceeding, but that the court acts ministerially and can do nothing but certify that the recount was held in his presence, or in the presence of his representative, and was powerless to take any other action in the matter or exercise any judicial functions whatever. The court proceeded with the hearing on the theory that a recount is a judicial proceeding throughout. Whereupon the attorneys for Mrs. Scott withdrew from the hearing and from the courtroom. After examining the election officials and taking such testimony as the court deemed necessary, the court, on the 26th day of November, 1930, made the following findings, conclusions, order, and judgment:

“1. That no error or fraud was committed in the original count by election officials.

“2. That the original count in Precincts 8, 12-B and 13-B was correct, and no fraud or error was committed in the count.

“3. That the so-called recounts in Precincts 8, 12-B and 13-B are not correct.

“4. That certain ballots in these three precincts bear on their face external evidence of tampering and fraud, and that said so-called recounts are based in whole or in part upon such ballots.

“5. That the so-called recount of November 21, 1930, was not in fact a recount of the same ballots which had been previously cast by voters but of different ballots from those cast by the voters.

“From these Findings, the Court concludes that the so-called recount figures are unworthy and untrue and should not be certified to the County Commissioners as a Canvassing Board; that said recount should not be in any manner authenticated or certified by this Court or its representative; that the so-called recount was not a recount at all, and that petitioner should have no benefit from such recount figures. The Court will not order its representative to certify that the recount was conducted in his presence nor transmit the said recount to the County...