Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1890-11-18

precinct No. II as certified by the judges
thereof" 1t appears from the petition
upon which the writ OF mandamus was
issued that the petitioner, Benjamin NJ
Read, was one of the candidates for the
house of representatives of the territorial
legislature voted for at the election held
in Santa Fe county upon the 4th day of
n ovember, 1890.
have thus fully set out the state of
the pleadngs in order that it may easily
be understood what are the real issues
unon which am to pass.
AS preliminary question it may he
asked, who are interested in the action
of this board and especially related to
this mandamus proceeding? There are,
in my Judgment, three classes of persons
vitaly interested, and their interests
should be kept constantly in mind III
coming to a conclusion.
FIRST The people whose will was as
serted at the various precincts. That will
should not be- lightly considered. 1t Is
sovereign; and through the proper chan
nels and according to the t ir Interest OF
the law unenrurnhered With the appear
anre # lraui, it should be enforced.
Second. The persons upon the va
rous tickets " ho were voted for. 1t Is
not the party who is elected by majprl-
ty Of the votes alone, who is Interested
IN havin1 a CANVASS Of HE votes, but all
" no , ere voted for, may b. defeated in
an election, but II am ent.tled to 1000
DullOts or votes my rights are not pro
| t. cted il receive oniy 800, though am
| in either case defeated.
Third. The parties who are entitled
to the certificates. There is a vast diff
| ference between the right to the certlt
cate and the right to the office. the
cert ificAte is prOpertv-the party who
has the majority If votes cast when th''
uIi, close, is enttlel u that reltlt at, ,
md nInlsIerla. boards are bunud t. Use
every leg j pfe>nluptl III to SEE that the
trIlticate Is given to that person. 1t
aou't do to say that the party has his
| recourse to All action Il contest. For
| speaking logically, a contest deals SOLELY
y Ath the right to the office, not to the
certificate
| Boards OF canvasslng are for the pnr-
pose OF awarding certIiiates, not offices.
Ii "a majority of the ballots in u pol
nox are fraudulent that has no eff, ct
|
the right # the Office.
| The boards protect certificates; Courts
| pro eCt officers
In argument it was argued hat this was
purely legal question Implying that the
righl5 of no one WAS To be Considered rs
cover .lng the alton al the board, bur
that the rlgid Interpretation OF the sta
lute alone must be considered La other
Aords, the rights of parties, If any were
to be seen through the stern iunbindlug
letter OF the statute.
Instead, [ believe that the statute
should be interpreted in view OF the
rights of the above three classes of par
Ties.
Addressing myself then to the ques-
lions brt fore me, the first is:
What are the powers and duties OF a
board of county election canvas5ers un-
or tn" law IN the territory of New
Mexicof
1t /, quite apparent that those powers
and duties grow out Of their powers and
iuies AS county comml sloners.
Section 340 Of the Compiled Laws OF
So4 Il; sub-dIylslon says "sald board OF
commissioners shall act as, boards of can
vassers OF the elections within their
respective counties, shall count the
votes cast in any election within then
respeclive counties and shall determine
the result thereof from the returns OF the
Judges Of election of the various precincts
their duties IN relation TO the elections
do not stop merely with canvassng the
returns, but by the "a he section they
are to appoint the board Of registration.
By section li3I they are 10 appoint
the Judges Of each voting precinct, Who
are to he men of discretion and good
character; by section 1889 they are to
lurnlsh poll books to the various pre-
rlnrts, and by section ll43 they are tC
furnish ballot boxes.
By sub-ilvlslun 9 of section 345 tn
judges OF election at the various pre'ln"ts
re to make their returns to this board
however, the board Is not necessarily
N session ior counting purposes uLtl
SIX days alter the election, and hence the
return is actually made to the probate
clerk who Is ex-oiticIo the boards clerk
But said return t. the clerk is in intend
ment of law to the board. When they
meet Tor the purpose of canvasslng the
vote do they act mnlsterally or judicial
~? The position cUntended fUr 10y tnt
respondents Is that they act minis
terialy solely or If they have any dis
creIlOu, 1t is extremely limited
rhe enumeration of the early law Cases
Vas that canvassiug boards acted purely
Al ministerial capacity and from tiiest
decisions has a'iseu an Impression that
they We're supply calculating machines
Itferlng only iIrom cahDages In that they
possessed eyes aud hands. Ii, however
lhus- cases are critically studied 1t Will be
found that the point decided was tha
alter a return, known to be return, Has
uriure thehI then their du,V VAS minis
terlally and that they could not iuqulr,
mo irregularities, occurring at any pre-
Vlutis Stage But there Aas no hOldlut
lI,aL they could not determlie first as |,
whether or not they had Il return in thel
trossesslon DO they not IN fact have tt
10 that very thing? Take the cas-" before
us. lhe board say they have canvisseC
,he return from precinct IL. How tic
they know they have? Who told then
that was the return which they canvassed
id their clerk? If 50, how did he know
and by what authority, II their contention
IL correct, did they take his testimony
rhey say that they opened the ballo
boxes from Nos |, and l6 aud ther,
we're no poll books III them rs PROVIDED
by law but the only returns therein wer'
ballots. How do they know? Possbl.
these were not the ballot boxes from
} those precincts and if they had looked 70
; the proper ones they wOnId have foun'
! lhem. then tao, how do they kn,.
r that there were ballots returned IN sal
i nOxrs?