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

The statute plainly states that the bal
lots are not to be touched or considered
unless ia a case of contest. Now pro-
sume this hoard has done right hence
they can not know that there was any
thing but slips Of paper resembling ballots
in those boxes, and yet they state in their
answer that the only returns we're ballots.
They have canvaseed the other fourteen
precincts in the county. How do they
know that the books and the ballot boxes
were the legal ones' They didn't see
them returned, their clerk is not presumed
to have any extraordinary powers of as
certaning what the returns are, for, if it
is anybedy' 3 duty, it is solely the board &.
1t will be readily seen that, in some way,
the board must first determine, at least
presumptively, that they have the returns
before them. That knowledge possibly
grows out OF their previous duties. They
furnished the poll books they furnished
the ballot boxes; they app lDtrd the
judges Of election, aud, presumably, they
recu-nlz'. the r. suits OF their own haudl-
WORK. Ii they can say: THUS Is the
return from precinct b. berause we pre-
sum" the return has been made and we
/
rhls is the return from precinct C' be
cause We presume the Iu iges there have
made the return, and ", r Cosn " The
poll books AZ we'll as the ballot huXF'
The reply viii be: For the reason that
We must presume the return Is made ac
COrdlng to law, and in the latter case 1t
has not been"
Howev+r, this reply is not conclusive,
for they know the poll books, they know
the signatures OF their appointed judges.
and the question of btin- according t"
law" depends upon wh-llier the law al
leged to la Z been lnirin."d Is mandatory
or directory eimpy # directory, then II
applies 20 tnr Judges uI election Uui,, , ana
The houtd have nothing to 90 with II
Ii cuId pniy, ia ttIat Case, pussinly, he d
CIRCUMSTANCE to pat them upon tucl
! guard as To the genIliness Of the return
/ but would not De reason Tor reJecLIn-.
the retl II. Fne rejrcIon mast be ple-
di,atrd upon something appearing upuI
the lace ul The returns
| lhe question nOh presents itself is tn
la" Ui tue last legislature Uf THIS terrlOty
! found III chapter l3), at section 7, Ahlrn
requires the poll book, to be returned III
siue the ballot box, and the ballot box
| locke , mandatory or directory?
The law Is plain that where Il statu {
has in 1t words which negative any other
than the mode or method laid down III
such statute, that 1t Is mAniatory, "bui
those directions viii Il are not ui the
essence OF the lining to be duun, huI
| Whlch are Glven WITH a view merely to the
| 4 il,.t
the business, and by failure ln oNI v
which the rights of thuee Interested vii
not be pre- lriicpd, are not commonly [,
| be relarded as mandatory; and If the acl
Is performed but not in the time, or IL
the preCls- mede Indicated, it may still be
sutti'ient, if that which is ne accom-.
plishes the Substantial purpose Of the
statute"
Cooley on Constitutional Limitations
| 7S, aud McCrary, in his work on E,ectipn-
to the saIne effect SAYS in Section lyD
"but il, aI in most cases, the statute sim
ply provides that certain acts or thing,
shall be done, within particular time, OF
in particular manner, and Il res not de
clare that their performance is essentia
to the validity of the election, then they
will be regarded as man Iatory, If they do
and directory if they do not. affect TIT
actual merits of the elec ion" How Cal
a failure to explicitly follow out the injunc
ton OF this statute "perjndce the rights q
those interested when rs in this case, ther
is no aIlegallon that the poll books wer'
not returned by the proper persons, an
we're not AT all lime in he proper custody
Simply hecAlise the poll b ,OKs we're out
side the ballot boxes. Raises no presrImp
tIOn that they Were mot delivered by tie
proper pe.sons and from the proper per
IONS. An error in one thing viii not
overthrow the favorable presnlnptiunt
which attend an officer in his duty IN al
that he has to do. 1t is TO me p ain tina
the statute under consideration is dlrec
tory only.
But, suppose that | am wrong in thi,
conclusion ran this Board take advanray,
OF the fact that the law NAV he, or Is
mandatory? This goes directly t. then
power. Even though the statute IN qnrs
ton were mahdatory, from its wordn.
Il rect"ry. Ii directory, then, a. to tt,
validity of the returns, fallure to com
ply with 8 terms would not affect them
bnt, by what authority does this Boar
arrogate to irs-lf tn prerogatlves OF ,
court to sav this statnte Is mandatory
And yet they must have so decided betor'
they could plead its mandatory characte
for throwing out returns.
They insist they are Only mlnlsterla
body, but upon the very threshold o
their labors they become a court to pass
upon the character OF a statute
This error was fallen into brcanse they
have failed to discriminate rs to tht
various dnties to be performed by certain
persOnages before the result OF the vote II
declared bv them. There are three 'nde
penient stages: FIRST, the election a
the precinct and thu counting of the vote
there; ~, the Transmission Of th- retur
to the cunvassIng board, and 3D., th'
canvassing OF the relurns-WIth the tirs
two the canvaSslng board have nothing
whatever to do. Their province is srleI,
with the last. Have they that which par
ports to be return? Is 1t upon its lac
sufficiently legal? Does no citizen presen
call their attention to any alleged llIe
gaitv upon the face of the returns?
there not more than one ALLEGED return
before them? Then their dury is PLAIN
they must canvass and count the returns
This position is ahnndantIy sustained b.
authority. Cooley in Constitutional Lln,i
tations. 3 edition page 1873. says; IL
, all this the several boards act tor til
most part mnisteriallv only, and are nu
! vested witt judicial powers to correct TIL
errors and mistakes that may have ot
| currei with any officer who prrcede
them in the performance of any 'uty con
nected with the elec ION nr TO pas
Continued on page 4.