State ex rel. West v. Thomas, 6170

• Decision Date: 21 December 1956
• Docket Number: No. 6170,6170
• Citation: 305 P.2d 376,1956 NMSC 124,62 N.M. 103
• Parties: STATE ex rel. A. E. WEST, Relator-Appellant, v. Dorothy THOMAS, County Clerk, Curry County, State of New Mexico, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 376

305 P.2d 376

62 N.M. 103

STATE ex rel. A. E. WEST, Relator-Appellant, v. Dorothy THOMAS, County Clerk, Curry County, State of New Mexico, Respondent-Appellee.

No. 6170.

Supreme Court of New Mexico.

Dec. 21, 1956.

E. P. Ripley, Santa Fe, Noble & Noble, Las Vegas, Wesley Quinn, Clovis, for appellant.

Richard H. Robinson, Atty. Gen., Fred M. Standley, and Santiago E. Campos, Asst. Attys. Gen., for appellee.

LUJAN, Justice.

By mandamus, it is sought in this proceeding to compel the county clerk of Curry County to furnish relator with an absentee ballot as contemplated by Sec. 3-5-10 of 1953 Compilation (Pocket Supplement). The relator, in his petition, alleged 'that he was a legally qualified and registered voter of Precinct No. 20, Election District A, Curry County, New Mexico; that he will be absent from his voting precinct on November 6, 1956; that more than seven days prior to the general election for the year 1956, he made application for an absentee ballot in the manner prescribed by Sec. 3-5-10 supra; that he meets all the qualifications prescribed by law for voting by absentee ballot, which qualifications are admitted by respondent; and that respondent refuses to furnish him with an absentee ballot or to otherwise perform the duties imposed upon respondent by Sec. 3-5-10 et seq., 1953 Compilation. (Pocket Supplement)' Wherefore, he prayed the issuance of an alternative writ of mandamus, or to show cause why she has not done so.

Upon presentation of the petition, the district court authorized issuance of the alternative writ as prayed and issued an order to show cause, returnable on October 20, 1956.

For answer to the alternative writ, the respondent admitted the allegations of the petition. The answer also alleged affirmatively 'that the provisions of Laws of 1955 Ch. 256 compiled as Sec. 3-5-10 to 19 inclusive, N.M.S.A.1953, as amended, commonly known as the Absentee Voting Act are unconstitutional and in violation of the provisions of Sec. 1 of Article VII of the Constitution of the State of New Mexico and are hence void and a nullity.'

On October 10, 1956, the cause was heard on the alternative writ and answer, on which date there was entered a judgment reading as follows:

'This cause duly and regularly coming before the court upon stipulation between the parties that this matter be heard forthwith and both parties appearing by their respective attorneys of record and the Court being fully advised in the premises, Finds:

'1. That the fact set forth in the alternative writ and Exhibit attached thereto are true and correct.'

Based upon the foregoing, the Court concludes:

'1. That notwithstanding the truth of the facts set forth in the Alternative Writ and Exhibit attached thereto, said Writ should be dissolved for the reason that the provisions of Laws 1955, Ch. 256, compiled as Secs. 3-5-10 to 19 inclusive, N.M.S.A. 1953 as amended, commonly known as The Absentee Voting Act are unconstitutional and in violation of the provisions of Sec. 1 of Article VII of the Constitution of the State of New Mexico and are hence void and a nullity.

'It Is Therefore, Adjudged and Decreed that the Alternative Writ of Mandamus heretofore issued herein be and the same hereby is dissolved and this action is dismissed at the cost of relator.'

Objections and exceptions were duly taken and this appeal follows:

Chapter 256 of New Mexico Session Laws 1955 provides:

'Section 1. Absentee Ballots and Envelopes Therefor--Record of Ballots Furnished.--At least seven days before any primary or general election and upon receipt of an application by a voter who will be absent from his voting precinct or polling place on the day of election, the county clerk shall furnish the registered voter an official ballot and shall also furnish the envelope provided for in section 6.

'Upon furnishing the official ballot, the county clerk shall cause to be entered upon the original and duplicate registration records the fact that an absentee voters ballot was delivered to such registered voter and the number of such ballot.

'Section 2. Ballots to be Mailed to County Clerk--Disposition by County Clerk.--Any qualified voters who cannot be physically present at their polling places on the date of a general or primary election may obtain an absentee ballot from the clerk of the county in which such voter votes. After filling out the ballot as hereinafter provided, the voter shall send the ballot by registered mail to the county clerk of the county in which he votes. Upon receipt of the completed absentee ballots, the county clerk shall retain them, with the seal of the envelope in which they are contained unbroken, in a safe in the county courthouse until the day of the general or primary election. Upon the day of election, the county clerk shall personally or by duly appointed agent, deliver all such ballots, in their envelopes with the seal unbroken, to the election judge of the precinct or polling place which is shown by the envelope in which the ballot is contained to be the voting precinct or polling place of the absent voter.

* * *

* * *

'Section 8. Election Judge the Agent in Fact of Absent Voter.--No absentee voter is considered to have voted until his ballot has been cast, by a...