Valdez v. Gonzales

• Decision Date: 31 December 1946
• Docket Number: No. 4924.,4924.
• Citation: 50 N.M. 281,176 P.2d 173
• Parties: VALDEZv.GONZALES et al.
• Court: New Mexico Supreme Court

50 N.M. 281

176 P.2d 173

VALDEZ

v.GONZALES et al.

No. 4924.

Supreme Court of New Mexico.

Dec. 31, 1946.

Appeal from District Court, Rio Arriba County; William J. Barker, Judge.

Action by Tito Valdez against Jessie M. Gonzales and others to recover damages for negligent printing and delivering of false instructions to precinct election judges. From a judgment dismissing complaint on ground that it did not state facts sufficient to constitute a cause of action, the plaintiff appeals.

Affirmed.

Where the facts are undisputed and the inferences to be drawn from them are plain and not open to doubt by reasonable men, trial court has duty to determine the question as a matter of law.

[176 P.2d 173 , 50 N.M. 282]

Manuel A. Sanchez, of Santa Fe, for appellant.

C. C. McCulloh, Atty. Gen., and Robert W. Ward, Asst. Atty. Gen., for Jessie M. Gonzales.Seth and Montgomery of Santa Fe, for Madrid & U. S. F. & G. Co.Rodey, Dickason & Sloan and Frank Mims, all of Albuquerque, for New Amsterdam Casualty Co.

HUDSPETH, Justice.

Appellant Tito Valdez, a candidate for public office, commenced this action as plaintiff against appellees, Jessie M. Gonzales, Secretary of the State of New Mexico, Gaby B. Madrid, County, Clerk of Rio Arriba County, New Mexico, and the sureties on their official bonds as defendants to recover damages for negligent printing and delivering of false instructions to precinct election judges.

Motions to dismiss upon the grounds that the complaint did not state facts sufficient to constitute a cause of action were sustained and this appeal followed. The facts are substantially as follows:

The plaintiff was a candidate for the office of county school superintendent of Rio Arriba County, New Mexico, at the general election of 1942. At that time and until January 1 thereafter the defendant Gonzales was the Secretary of State of New Mexico, and the defendant Madrid was the County Clerk of Rio Arriba County, New Mexico. The clerk was charged by law with the duty of delivering to the precinct election officials in Rio Arriba County, supplies and instructions for the conducting of the election in each election precinct. The secretary of state prepared and delivered to the clerk, as part of the election supplies, instructions to voters, and poll books on which were printed instructions to the precinct election officials regarding their duties. (N.M.S.A. 1941 Comp., Sec. 56-319). Among these instructions were the following:

‘INSTRUCTIONS TO ELECTION OFFICERS' and above these instructions is printed in as large type as space will permit:

‘DO NOT FAIL TO READ ALOUD INSTRUCTIONS INSIDE’

Instructions numbers one and four are as follows:

‘READ INSTRUCTIONS ALOUD

1. Read aloud to all election officers these instructions and instructions to voters on cards, furnished you by the County Clerk, before opening the polls for voting. * * *

CHECK ELECTION SUPPLIES

‘4. Inspect and see that you have the necessary election supplies, consisting of:’ (here follows a list of necessary election supplies, but an envelope for mailing the poll books to the county clerk is not mentioned.)

‘DISPOSITION OF POLL BOOKS, ETC.

27. Return ballot box immediately to the county clerk. The person delivering the ballot box should also take with him for delivery to said county clerk, not enclosed in the ballot box, one key in an envelope addressed to said clerk, one poll book certified by the judges of election, the bound book of affidavits of registration, and all unused election supplies. Where there are counting judges, said person should also take with him one poll book certified by the counting judges. Place in the mailing tube furnished the other poll book, or other two poll books where there are counting judges, and mail to the secretary of state at Santa Fe. Place the other key in an envelope addressed to the district judge, and mail the same.'

‘BALLOT BOXES MUST BE DELIVERED WITHIN TWENTY-FOUR HOURS

28. If the voting place is not more than twenty-five miles from the county seat, the ballot box, key, poll book, etc., shall be delivered forthwith to the county clerk by one or more judges of election in person; if a greater distance, by messenger selected by the judges of election for that purpose. Where any ballot box, any poll book, or registration book, are not delivered in accordance with these instructions within twenty-four hours of the close of the polls, the vote in that precinct shall not be counted or canvassed unless a petition is presented to the district judge of the district within which such precinct is contained and a sufficient showing made that the delay was due to forces beyond the control of the election officials, and then only when said district judge shall so find and make an order that the votes cast in said precinct shall be canvassed and become part of the final election result.'

‘PENALTIES

31. Wilful disobedience to the law by an election officer will subject him to heavy penalties.

‘WARNING

32. Failure to follow the foregoing instructions may result in the rejection of the entire vote in your voting division. These instructions must be followed carefully.'

The Secretary of State, without authority of law, sent with the poll books envelopes on each of which was printed in large letters the following: ‘To judges of election: Place one poll book (two if there are counting judges) flat in the envelope and seal and fasten and mail at once to the county clerk of your county.’ One of these envelopes with the usual election supplies was delivered by the clerk to the election officials of each election precinct, prior to the date fixed by law for holding the election. The election officials of each of three precincts in Rio Arriba County placed its poll book in the envelope described and mailed it to the County Clerk of Rio Arriba County as thereon instructed. In the regular course of mail the poll books could not, and did not, reach the County Clerk's office within 24 hours after the closing of the polls on election day.

In each of the precincts mentioned the plaintiff received a substantial majority of votes over his opponent; and received a majority of the votes cast in Rio Arriba County. But because the returns were delayed more than 24 hours after the close of the polls, the county canvassing board refused to canvass and count the votes cast in the three precincts mentioned, with the result that the certificate of election for plaintiff's office was issued to the plaintiff's opponent Bernabe Herrera. If the ballots cast in the three precincts had been canvassed and counted the plaintiff would have received the certificate, and subsequent delays and litigation would have been avoided.

A proceeding was instituted in the District Court of Rio Arriba County to require the canvassing board to count the ballots cast in the three precincts, notwithstanding they were delayed more than 24 hours, but the District Court erroneously ruled that the ballots should not be counted.

Thereafter the plaintiff filed a statutory contest, in which the decisive question was whether the ballots in the boxes mentioned should be canvassed and counted; which question the district court answered in the negative; and judgment was entered for contestee Herrera. An appeal from this judgment was prosecuted to the Supreme Court, and on February 28, 1944, a decision was therein rendered (Valdez v. Herrera, 48 N.M. 45, 145 P.2d 864) by which the judgment below was reversed, with instructions to the district court to render its judgment for plaintiff. He took possession of the office on March 1, 1944.

Plaintiff exercised all possible diligence in all proceedings to secure title to and possession of the office to which he had been elected; but notwithstanding such diligence he was deprived of his office from January 1, 1943 to March 1, 1944. While in possession of plaintiff's office the contestee Herrera received $2,916.67 of its emoluments, and the costs of court paid by the plaintiff were $132, for all of which plaintiff obtained judgment against the contestee Herrera. An execution was issued thereon and returned nulla bona, and subsequently contestee Herrera filed bankruptcy proceedings, from which nothing can be realized on the plaintiff's claim.

It is asserted by the plaintiff that all of the defendants are liable to plaintiff for damages sustained by him, to wit, the sum of $3,048.67, with interest at six per cent per annum from February 28, 1944, until paid.

One of the grounds on which the motions to dismiss was sustained is that the defendant officers were not liable in damages to third persons for their negligence.

While envelopes for poll books are not listed among the supplies there could have been no objection to including blank envelopes to be used for the purpose of enclosing the poll books. In fact, the poll books should be securely enveloped and sealed before they are turned over to messengers for delivery to the County Clerk. So the negligence consisted of words-instructions to the judges of election to mail the poll books-contrary to the statutory instructions printed in the poll books, and quoted above.

There is no contract liability to third parties. 1 Restatement of the Law of Contracts, Sec. 145, and there is no allegation of fraud or intentional wrong in plaintiff's complaint. 4 Restatement of the Law of Torts, Sec. 865, reads as follows: ‘Interference with a Right to Vote or Hold Office. A person who by a consciously wrongful act intentionally deprives another of a right to vote in a public election or to hold public office is liable to the other in an action of tort.’

Assuming that the defendant officers owed a duty to these election officials, the presence of that duty to use care depended upon the relation of the parties. Courteen Seed Co. v. Hong Kong & Shanghai Banking Corp., 245 N.Y. 377, 157 N.E. 272, 56 A.L.R. 1186.

A question of the liability for negligent language to third persons was involved...