TRUJILLO v. TRUJILLO

• Citation: 52 N.M. 258,197 P.2d 421
• Decision Date: 07 September 1948
• Docket Number: No. 5089,5089
• Parties: TRUJILLO v. TRUJILLO.
• Court: New Mexico Supreme Court

52 N.M. 258

197 P.2d 421

TRUJILLO

v.TRUJILLO.

No. 5089.

Supreme Court of New Mexico.

Sept. 7, 1948.

[197 P.2d 421, 52 N.M. 259]

Frank Andrews and Samuel Z. Montoya, both of Santa Fe, for appellant.

Bigbee & Kool, of Santa Fe, for appellee.

SADLER, Justice.

The appellant, who was contestee below, and the appellee, the contestant, were rival candidates for the office of County Clerk of Rio Arriba County at the general election held on November 5, 1946. They will be here referred to as contestant and contestee, respectively. The contestee, as the candidate on the democratic ticket for County Clerk was certified to have received a majority of sixteen votes and received the certificate of election at the hands of the County Canvassing Board. In due season he was contested for the office by Mrs. Cruz Trujillo, candidate for the same office on the republican ticket. Judgment went for the contestant below and this appeal followed. Since the case was decided on the pleadings, no evidence having been taken, the form of the notice of contest filed and of the answer in certain particulars becomes important. The notice of contest reads:

'Comes Now the Contestant, Mrs. Gruz Trujillo, and for her grounds of contest states:

'I That she was the Republican candidate for County Clerk of Rio Arriba County; and the Contestee, Edward Trujillo, was the Democratic candidate for County Clerk of Rio Arriba County.

'II That On November 27, 1946, following a recount requested by Edward Trujillo, the Contestee herein, the County Commissioners of Rio Arriba County met as the County Canvassing Board and issued a Certificate of Election to Edward Trujillo, based on the canvass and recount of the returns of Rio Arriba County, which purported to show on their face that Edward Trujillo received a majority of sixteen (16) votes.

'III That according to the County Canvass of Rio Arriba County, Edward Trujillo received one hundred seventy-four (174) votes, and the Constestant herein received one hundred forty-three votes in Precinct 1-A. In Precinct 2, Edward Trujillo received one hundred seventy-two votes, and the Contestant herein is shown to have received one hundred sixty-seven (167) votes. In Precinct 8, the County Canvass shows that Edward Trujillo received one hundred twelve (112) votes, and the Contestant herein, eighty-three (83)votes. In Precinct 14, the returns show that Edward Trujillo received ninety-eight (98) votes, and that the Contestant herein received seventy-four (74) votes. In Precinct 15, the returns show that Edward Trujillo received thirty-eight (38) votes, and the Contestant herein thirteen (13) votes. In Precinct 17-B, the returns show the Edward Trujillo received one hundred one (101) votes, and the Contestant herein, elevent (11) votes. In Precinct 18, the returns show that Edward Trujillo received one hundred seventy-eight (178) votes, and the Contestant herein, eighty-seven (87) votes. In Precinct 19, the returns show that Edward Trujillo received one hundred-fifty (150) votes, and the Contestant herein one hundred thirty-seven (137) votes. In Precinct 20, the returns show that Edward Trujillo received ninety-seven (97) votes, and the Contestant herein ninety-one (91) votes. In Precinct 21, the returns show that Edward Trujillo received eighty-seven (87) votes, and the Contestant herein sixty-seven (67) votes. In Precinct 25, the returns show that Edward Trujillo received one hundred eighty-four (184) votes, and the Contestant herein, one hundred fifty-seven (157) votes. In Precinct 28, the returns show that Edward Trujillo received two hundred sixty-seven (267) votes, and the Contestant herein two hundred thirty-five (235) votes. In Precinct 29, the returns show that Edward Trujillo received twelve (12) votes, and the Contestant herein received six (6) votes. In Precinct 44, the returns show that Edward Trujillo received one hundred thirty-one (131) votes, and the Contestant herein, eighty (80) votes; and in Precinct 46, the returns show that Edward Trujillo received twenty (20) votes, and the Contestant herein received five (5) votes.

'IV That the returns, as indicated in Paragraph Number III of this Notice of Suit, as certified to by the County Commissioners Rio Arriba County, sitting as a County Canvassing Board of Rio Arriba County, show that in the group of Precincts listed in Paragraph Number III of this Notice of Contest, that Edward Trujillo carried such Precincts by a majority of four hundred sixty-six (466) votes.

'V That in all of the Precincts listed in Paragraph Number III of this Notice of Contest, the election officials failed to substantially comply with the provisions of the election code of the State of New Mexico, designed to protect the secrecy and sanctity of the ballot and the correct recording of the names and ballot numbers in the poll books and the entering of the ballot number on the book of bound original Affidavits of Registration, as provided by the laws of the State of New Mexico; and the Contestant herein alleges on information and belief that the election officials failed in the following particulars to complywith the provisions of the election code of the State of New Mexico in all of the Precincts listed in Paragraph III of this Notice of Contest, as follows, to-wit:

'(A.) In that they failed to include the ballot number for each voter, as required by the Statutes of the State of New Mexico, in both the poll books and the book of bound original Affidavits of Registration.

'(B.) In that they failed to ascertain whether each person who presented himself at the polls to vote was properly registered, and failed to insert the ballot numbers of the registered voters on the bound original Affidavits of Registration.

'(C). In that the poll clerks and election officials failed to enter the name of each voter as it appears on the registration book in the poll book with the street address of the voter where possible, and failed to list the correct number of the voter and the correct number of the ballot voted by such voter on the poll books and on the original Affidavits of Registration, as required by the Statutes of the State of New Mexico.

'(D.) In that they failed to list the names of married women whose names appear in the Registration Book by their given names instead of under the name of their husbands, and failed to enter such name upon each poll book as the married name, as required by the Statutes of the State of New Mexico.

'(E) In that the election officials failed to require, or in any way comply with the provisions of the election code of the State of New Mexico that require the making of Affidavits for Assistance before any voter is given assistance at the polls, and that the election officials in all of the Precincts listed in Paragraph III of this Notice of Contest allowed numerous voters to receive assistance in violation of the laws of the State of New Mexico, without having the voters sign Affidavits for Assistant, or without complying with any of the mandatory statutes of the State of New Mexico pertaining to assistance of voters.

'(F) In that the election officials failed to prohibit electioneering within fifty (50) feet of the polling places in each of the Precincts listed in Paragraph III hereof, and violated said section by permitting and allowing electioneering within fifty (50) feet of the polling places in such a manner that the secrecy of the ballot was not protected, as required by the laws of the State of New Mexico, and in such a manner that voters were intimidated and were not in many cases able to exercise their free choice of candidates.

'(G) In that the election officials of all of the Precincts listed in Paragraph III of this Notice of Contest failed and refused to comply with the Statutes of the State of New Mexico pertaining to the mannerof counting and tallying the ballots and pertaining to the signing of certificates, as required by the Statutes of the State of New Mexico.

'(H) In that the election officials of all of the Precincts listed in Paragraph III of this Notice of Contest failed and refused to certify the name of the last person who voted and the last ballot cast at the election prior to the termination of the voting at the time provided by law.

'(I) In that the election officials of all of the Precincts listed in Paragraph III of this Notice of Contest failed and refused, at the close of the polls at six o'clock in the evening on November 5, 1946, the day of election, to immediately place all unused ballots bearing the names of candidates in the ballot boxes, wrapped in packages separate from those in which the ballots cast by voters are wrapped.

'(J) In that the election officials allowed persons in the places where voting was taking place in addition to the judges and clerks of election, one accredited challenger appointed in writing by the County Chairman or Precinct Chairman from each political party represented on the ballot, State Police and other peace officers performing official duty, and electors engaged in voting and also counting judges and clerks in cases where appointed, and that the additional persons were allowed in the voting places of all of the Precincts listed in Paragraph III hereof in addition to those enumerated in this paragraph.

'(K) In that the election officials had in their possession intoxicating liquor while performing official acts under the provisions of the election code of the State of New Mexico, on November 5, 1946, and in addition, allowed other persons to have liquor within their possession within two hundred (200) feet of the polling places of each of the above-listed Precincts.

'VI That, as a result of the failure of the election officials to place the names of all voters on the poll books in the manner in which they appear on the Affidavits ofRegistration, it is impossible to ascertain with certainty whether many of the persons whose names appear on the poll books are in fact registered or unregistered;...