Zamora v. Archuleta., 3700.

• Decision Date: 11 April 1932
• Docket Number: No. 3700.,3700.
• Citation: 36 N.M. 181,10 P.2d 822
• Parties: ZAMORAv.ARCHULETA.
• Court: New Mexico Supreme Court

36 N.M. 181

10 P.2d 822

ZAMORA

v.ARCHULETA.

No. 3700.

Supreme Court of New Mexico.

April 11, 1932.Rehearing Denied May 7, 1932.

Syllabus by the Court.

Delay in commencing election recount, due to necessity of sending for keys to ballot boxes, held not to vitiate proceeding.

Acts of election judges and boards of county commissioners in matters of election recount and issuance of certificate of election are presumptively regular.

Illegality of election recount held not set up by allegation of notice and that recount was ordered but not held on appointed date (Comp. St. 1929, § 41-606).

1. Delay in commencing election recount, due to necessity of sending for keys to ballot boxes, held not fatal to proceeding.

2. A presumption of regularity attends the acts of election judges and boards of county commissioners in matters of election recount, and of issuing certificate of election based thereon.

3. Illegality of election recount is not set up by allegation of notice of election contest that a recount was ordered but not held on the appointed date; such allegation being considered in connection with further allegations that an alleged recount was held on a later date, resulting in gain for appellee, which result was certified by the election officers, and pursuant to which the board of county commissioners canceled contestant's certificate of election and issued one to contestee.

Appeal from District Court, Torrance County; Frenger, Judge.

Election contest by Pedro Zamora against Solomon Archuleta. Judgment in favor of the contestant, and the contestee appeals.

Reversed and cause remanded, with directions.

Acts of election judges and boards of county commissioners in matters of election recount and issuance of certificate of election are presumptively regular.

J. Benson Newell, of Las Cruces, and George R. Craig, of Albuquerque, for appellant.

G. O. Caldwell, of Mountainair and J. Lewis Clark, of Estancia, for appellee.

WATSON, J.

This election contest involves the office of county clerk of Torrance county.

According to the original canvass, Zamora, contestant, appeared to have received 1,633 votes, to 1,613 for Archuleta, contestee. A certificate of election was accordingly awarded to the former. A recount resulted in a gain of 29 votes for contestee. The first certificate was canceled, a new certificate was issued to contestee, and this contest followed.

The claimed illegality of the recount was the sole ground of contest. After hearing, the trial court decided that the proceedings were entirely illegal, and that the original canvass was the proper basis for decision as between the two claimants. Judgment followed for the contestant.

The learned trial judge found:

“*** as a matter of fact as well as law, that the recount *** was not had or held on November 24, 1930, but was held and had on the following day, to-wit, November 25, 1930, and the court finds as a matter of fact that November 24, 1930, was the day fixed for such recount by the district judge, and finds as a matter of law that said recount not having been held on the day fixed by the court, the same, and all of the proceedings relating thereto were invalid, and that the election returns resulting from such recount are null and void. And the court finds as a fact that the original official election returns for Torrance County *** show that at the last general election the contestant, Pedro Zamora, received 1633 votes, and the contestee, Solomon Archuleta, received 1613 votes for the office of county clerk of Torrance County, New Mexico, and that such returns thereby showed that the contestant had received a majority of the votes cast at such election for said office in the number of 20.

“The court finds as a matter of law that said original returns and the figures there under are binding upon the court here, and upon the parties to this cause, except in so far as they may be modified under the court's findings in respect to the issues made up under the new matter set out in the contestee's answer.”

[1][2] At appellant's request, the court specifically found that Judge Owen, who had made the recount order, and all of the election officials except one election judge, were present on November 24th, the date set for the recount; that Judge Owen had not been provided with the judge's keys to the ballot boxes; that said keys did not arrive from Las Cruces until the morning of November 25th, on which date the recount proceeded and was completed. In so finding, the court stated: “That under the court's views the facts so found are of no importance.”

This would indicate a theory that the delay in commencing and completing the actual work of recounting the ballots was fatal to the proceeding. Appellee attempts to support such theory, urging that the recount provision of the statute, creates a special proceeding and remedy and is to be strictly construed and followed, and that time is of the essence of the matter; the principal object being to obtain early decision.

That these are not the principles governing the present state of facts seems to us self-evident. This court has always held that the statutory time limits for commencing contests and for filing and serving pleadings are mandatory; that they exclude any judicial discretion to extend them; and that the courts may not even permit a pleading to be amended after expiration of the time for filing and serving it. Such holdings have their support in the evident intent of the statutes to prevent delay and to expedite decision.

But it by no means follows that a necessary delay, not the fault of a party, and not exceeding some time limit specifically set by the statute, should defeat the right or the result. The duties of the judge and of the election officers as to recount proceedings were fully considered in State ex rel. Scott v. Helmick, 35 N. M. 219, 294 P. 316. It was there held that the duty of the judge after making the order setting the time for the recount is ministerial, and that the duty of the election officers is merely to recount and certify, or possibly to refuse to do...