State ex rel. Van Schoyck v. Bd. of County Com'rs of Lincoln County

• Decision Date: 10 November 1942
• Docket Number: No. 4747.,4747.
• Citation: 131 P.2d 278,46 N.M. 472
• Parties: STATE ex rel. VAN SCHOYCKv.BOARD OF COUNTY COM'RS OF LINCOLN COUNTY et al.
• Court: New Mexico Supreme Court

46 N.M. 472

131 P.2d 278

STATE ex rel. VAN SCHOYCK

v.BOARD OF COUNTY COM'RS OF LINCOLN COUNTY et al.

No. 4747.

Supreme Court of New Mexico.

Nov. 10, 1942.

Appeal from District Court, Lincoln County; A. W. Marshall, Judge.

Mandamus proceeding by the State of New Mexico on the relation of Mrs. Wayne Van Schoyck, relator, against the Board of County Commissioners of Lincoln County, New Mexico, consisting of W. W. Gallacher, chairman, Corbin Hester, and Manuel Corona, and Felix Ramey, County Clerk of Lincoln County, New Mexico, if he be the county clerk of that county, otherwise to such person as may be the duly qualified and acting county clerk, to compel the Board of Commissioners, sitting as the County Canvassing Board, to meet, canvass, and certify the relator's name as the Republican nominee for the office of county clerk, or to require the county clerk to accept and file a certificate of nomination issued to relator by the vacancy committee of the Republican County Central Committee, and to accept the fee required of candidates for that office, and to print relator's name on the official ballot in the general election. From an adverse judgment, the relator appeals.

Judgment affirmed.

The Supreme Court was entitled to 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 to give it directly into the hands of the qualified electors of the parties participating therein. Laws 1938, Sp.Sess., c. 2, §§ 1, 2, 5, 7-10, 13, 15, 17, 18, 23, 28.

Whatley & Garland, of Las Cruces, for appellant.

M. A. Threet, Dist. Atty., of Las Cruces, for appellees.

SADLER, Justice.

Two questions are presented for decision. The first is whether, no declaration of candidacy having been filed, a nomination may be accomplished trader the primary election law, L.1938, Sp.Sess., c. 2, by writing in the name of the voter's choice underneath the name of the office where it appears on the official ballot used in the primary election. The second question, to be resolved only in the event the first draws a negative answer, is whether a vacancy exists under section 17 of the primary election law to be filled by an appropriate party committee, where there was no candidate and, hence, no nomination at the primary.

The office involved is that of county clerk and the case comes up from Lincoln County. Mrs. Wayne Van Schoyck as relator asked the district court of that county to compel its board of commissioners, sitting as the county canvassing board, to meet, canvass and certify her name as the republican nominee for the office of county clerk by virtue of forty-two votes cast for her as such nominee by writing in her name on the ballot at said primary election which were duly certified by the judges and clerks thereof; or, in the event the respondent board could not lawfully be required so to do that the county clerk, also made a respondent, be required to accept and file a certificate of nomination issued to relator by the vacancy committee of the Republican County Central Committee as the nominee of said party and to accept the fee required of candidates for that office and to print the relator's name on the official ballot in the general election to be held on November 3, 1942.

The respondent board filed an answer challenging relator's right to the relief asked against it and against the individual members thereof. The county clerk, as a respondent, filed a separate answer, likewise challenging relator's right to the relief sought against him. He admitted that on or about October 1, 1942, more than two weeks following the primary election, the relator tendered to him seventy-two dollars accompanied by a purported certificate of nomination given relator by said vacancy committee, which check the respondent refused to receive and which certificate he refused to file. After hearing, the court made the following findings of fact and conclusions of law, to-wit:

“1. That W. W. Gallacher, Corbin Hester and Manuel Corona are the County Commissioners of Lincoln County, New Mexico, and as such are the Board of Canvassers of said county, and charged by law with the duty of canvassing the returns of the direct Primary Election held on September 12, 1942 for the nomination of candidates for the several national, state and county offices voted for at said direct Primary Election on said day, including the office of County Clerk.

“2. That no person filed a declaration of candidacy for the office of County Clerk of Lincoln County, New Mexico on the Republican ticket, and that the official Republican ballot for said direct primary election in said county did not contain the printed name of a candidate for the office of County Clerk of said county, but that the name of the said Mrs. Wayne Van Schoyck was written in on the said Republican ballot under the designation ‘for County Clerk’ by forty-two Republican voters who voted the Republican ticket at said primary election, and that opposite the name of the said Mrs. Wayne Van Schoyck so written in on said ballot under said designation, such electors placed a square and therein marked an ‘X’, indicating their vote for the said Mrs. Wayne Van Schoyck as a candidate for County Clerk on the Republican ticket.

“3. And the Court further finds that the Board of Commissioners of Lincoln County, New Mexico, sitting as a Canvassing Board, failed and refused to canvass the write-in votes of said Relator.

“4. The Court further finds that Felix Ramey is the duly elected, qualified and acting County Clerk of Lincoln County, New Mexico.

“5. The Court further finds that no other candidate for County Clerk on the Republican ticket was voted for at such election, and the Relator received all votes cast at said Primary Election by writing in the name of said Relator.

“6. That since said Primary Election the Republican Party met in Lincoln County, New Mexico and attempted to nominate the said Relator as the Republican candidate for County Clerk of Lincoln County, New Mexico, to fill a purported vacancy.

“7. That thereafter a purported certificate of nomination of the said Mrs. Wayne Van Schoyck accompanied by the sum of $72.00, being the fee required by law to be paid by candidates participating in the Primary Election for the office of County Clerk, was tendered to Felix Ramey as County Clerk of Lincoln County, New Mexico, for filing and was by him refused.

“Based on the Findings of Fact aforesaid, the Court makes as its

“Conclusions of Law:

“I. That under the Primary law of the State of New Mexico a write-in vote is not permissible, and the Board of County Commissioners sitting as a Canvassing Board was not required or permitted under said Primary law to canvass said write-in votes.

“II. That under the Primary law of the State of New Mexico no vacancy existed in the office of County Clerk on the Republican ticket of Lincoln County, New Mexico, in the list of candidates entitled to representation on the official ballot at the next ensuing General Election, and that the action taken by the Republican Party Committee in attempting to nominate the Relator as a candidate for County Clerk on the Republican ticket to fill a purported vacancy is null and void and of no effect.”

The trial court thereupon entered its judgment dissolving an alternative writ of mandamus theretofore issued and dismissing the relator's action. This appeal followed.

[1] As to the first question, we are all agreed that the write-in method of nominating a candidate for public office is unavailable under our primary law, either to a political party participating in the primary or to any member thereof thus seeking to place himself on the official ballot as his party's nominee in the general election. This conclusion arises from a consideration of the Act as a whole and we are quite satisfied with its correctness. Many of its provisions suggest, while others compel, such a view.

The Act in question is known as Chapter 2 of New Mexico Session Laws of 1938, adopted at a Special Session of the Thirteenth State Legislature, approved September 1, 1938. Section 1 of the Act declares that it shall be known and may be cited as the “Primary Election Code.” Section 2 provides that all candidates for elective office shall be nominated by political parties to which the Act applies at a primary election and that “the candidates of the political parties for the offices to which this act applies shall not be otherwise selected or nominated”.

The last sentence of Section 5 of the Act reads: “Nomination of candidates to fill vacancies and nomination of candidates to all offices to which this act does not apply and nomination of candidates for all offices by all political parties not coming under the provisions of this act shall be made as now is or as may hereafter be provided by law.”

Section 7 provides: “A primary shall be held in each county in this state on the second Saturday in September of each even numbered year at which the qualified registered electors of each political party participating in such primary shall select by secret ballot the candidates of each such party for all offices to which this act applies.”

Section 8 imposes the duty on the Governor to issue a proclamation and file same with the Secretary of State on the first Monday in July of each even numbered year calling for the primary election to be held in each county and precinct in the state on the second Saturday in September of such even numbered year, giving a list of the offices for which each political party participating shall nominate candidates, and further provides that “such proclamation shall also contain the date on or before which the declarations and nominating petitions of candidates for such nominations shall be filed, and the offices wherein such declarations and petitions shall be filed, in order to entitle the candidate for such...