Valdez v. Herrera., 4809.

Decision Date17 February 1944
Docket NumberNo. 4809.,4809.
Citation145 P.2d 864,48 N.M. 45
PartiesVALDEZv.HERRERA.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Rio Arriba County; Charles H. Fowler, Judge.

Election contest by Tito Valdez against Bernabe Herrera for the office of county superintendent. From a judgment for contestee, the contestant appeals.

Reversed with directions.

A judgment in mandamus proceeding instituted on relation of election contestant, denying a recount of votes in certain precincts did not bar contestant's right to challenge election of contestee in statutory election contest. 1941 Comp. § 56-601.

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

George E. Remley and Joseph M. Montoya, both of Sante Fe, for appellee.

MABRY, Justice.

This is an election contest case. Contestant-appellant appeals from the judgment in favor of contestee-appellee awarding to him the office of County School Superintendent of Rio Arriba County. In the general election held November 3, 1942, the County Canvassing Board of Rio Arriba County, New Mexico, credited contestant with having received a total of 3154 votes as against contestee 3272 votes for the office in question, and issued a certificate of election based upon said figures. Said total votes did not include the votes cast, counted, tallied, returned and certified by precinct election officials for either contestant or contestee in precinct 36 (Skarda), 47 (Canones), 23 (Youngsville), or 1A (Dixon), nor the corrected number of votes received by either contestant or contestee in precinct 19 (Chama). In all of the first 4 precincts above mentioned, but excluding Chama (in which there would be a difference of only 3 votes in any event) the votes cast, counted, tallied, returned and certified gave contestant 338 and contestee 115, clearly a difference of enough to elect contestant if the votes from such 4 precincts are to be counted and accepted, regardless of any other consideration or error relied upon by either contestant, or by contestee in his cross appeal.

As to these 4 precincts, 36, 47, 23 and 1A, there is no dispute concerning the facts and there is no charge of bad faith or fraud. The County Canvassing Board refused to canvas the votes cast in these 4 precincts and refused to count and carry them forward into the general election results because the poll books were not delivered within 24 hours of the closing of the polls as was required by Sec. 7, Chap. 153, Laws of 1939 (1941 Comp., Sec. 56-344). This statute reads:

“Immediately upon the conclusion of the counting and tallying of the votes and certifying the same and placing the ballots, affidavits for assistance, and envelopes in the ballot box, said ballot box, all election supplies, and one (1) poll book, or where there are counting judges one (1) poll book certified by each set of election officers, and the book of bound original affidavits of registration shall be immediately returned to the county clerk by the judges, and the other poll book or books shall be immediately placed in the mailing tube and mailed to the secretary of state. The poll book, registration book, and unused election supplies returned to the county clerk shall not be placed in the ballot box. An election judge of one (1) of the political parties shall return to the county clerk one (1) of the keys to the ballot box enclosed in an envelope addressed to said clerk; a judge of the opposite political party shall place his key in an envelope provided for that purpose, and mail it to the judge of the district court of the county in which the election is held. The district judge shall retain such key in his possession until the destruction of the ballots as herein provided, except as herein otherwise provided after which it shall be delivered to the county clerk.”

“If the voting place is not more than twenty-five (25) miles distant from the county seat, the ballot box, key, poll book, the book of bound original affidavits of registration and unused supplies shall be delivered forthwith to the county clerk by one (1) or more of the judges in person, but the same may be sent to the county clerk by messenger selected by the judges for that purpose, if the county seat is more than twenty-five (25) miles distant.”

“Where any ballot box, any poll book, book of bound original affidavits of registration, are not delivered in accordance with these instructions within twenty-four (24) 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. Said petition may be filed in the district court by any election official or any interested party without cost. (Laws 1927, ch. 41, sec. 343, p. 62; C.S. 1929, sec. 41-343; Laws 1935, ch. 147, sec. 41, p. 371; 1939, ch. 153, sec. 7, p. 306.)

Upon the refusal of the County Canvassing Board to so canvas the votes for the 4 precincts in question, the Republican county chairman of Rio Arriba County sought an order of district court requiring the counting and canvassing of the votes of these 4 precincts, but without securing such recount.

The contestant then instituted mandamus proceedings whereby he sought to have the votes of these 4 precincts included in the election results to be canvassed, and failing in that he instituted this contest proceeding (under authority of 1941 Comp. Sec. 56-601 to 56-610). The district judge acting in the mandamus proceeding, evidently interpreted the circumstances hereinafter to be noticed, which influenced the conduct of the election officials whose duty was to get the ballot boxes and the poll books into the county clerk's office within 24 hours, as not meeting the statutory requirement that the delay encountered was not “due to forces beyond the control of the election officials”, as provided in Sec. 56-344, supra.

Although the district judge, in the trial of the contest proceeding, found there was no fraud or bad faith on the part of the election officials in any of the 4 precincts in question, obviously determined as a matter of law that he could afford no relief in view of the mandatory character of the statute and held for contestee.

The delay in delivery involved in this proceeding has reference to the delay in the delivery of the poll books and ballot boxes from precincts 23 and 36 and the poll books only from precincts 47 and 1A. It is necessary in consideration of this question to set out the circumstances surrounding the delayed delivery as to each of the said precincts.

The voting place in precinct 36 (Skarda) is more than 75 miles from the office of the county clerk of Rio Arriba County; the ballot boxes and poll books from this precinct were forwarded to the county clerk by truck from Skarda to Antonito, Colorado, and from there sent by Railway Express to Chama, and from Chama by bus. In the ordinary course of express and bus, these ballot boxes and poll book could not be delivered to the county clerk's office within 24 hours after the closing of the polls. The ballot box and poll book arrived at the county seat on November 5th after having been placed in the express office at Antonita, Colorado on November 4th.

As to precinct 47 (Canones) the voting place of this precinct is more than 50 miles from the county clerk's office. The judges of election personally delivered the ballot box to the county clerk's office within 24 hours of the closing of the polls, but they placed the poll books in the post office at Canones, addressed, and for delivery, to the county clerk. Upon arriving at the county seat with the ballot box, the judges of election were advised that they should also have brought with them the poll book. They then returned and withdrew the poll book from the post office and conveyed it to the county clerk's office. But, because of the long distances to be traveled they did not, and perhaps could not, reach the county clerk's office with the poll book within 24 hours after the closing of the polls. The poll book so retrieved from the post office by the election officials could not then have been delivered to the county clerk's office within 24 hours after the closing of the polls, in any event. The books were deposited in the post office at Canones before 1:00 o'clock P.M. on November 4th, the day after the election.

The voting place in precinct 23 (Youngsville) is more than 60 miles from the county clerk's office. In this case, the election officials deposited both the poll book and the ballot box in the U.S. mail at Youngsville post office for delivery to the county clerk's office on the morning of November 4th. In the ordinary course of mail, these, likewise, could not reach the county clerk's office within 24 hours after the closing of the polls.

The voting place of precinct 1A (Dixon) is more than 75 miles distant from the county clerk's office, and, while the ballot boxes from said precinct were delivered in person to the county clerk within the 24 hour period and before noon of November 4th, the poll book was deposited in the U.S. post office at Dixon, New Mexico, on November 4th by the election official in charge, properly addressed to the county clerk's office. But, the poll book in question could not, in the ordinary course of the mails, reach the county clerk's office within 24 hours after the closing of the polls. These voting precincts, it will be noticed, are in somewhat isolated sections of Rio Arriba county, one of the larger counties of the state, with the substantial handicap of slow transportation and poor connections with the county seat, particularly when the U.S. mails are to be employed as the “messenger”.

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