Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-02-05

will of all the voters as shown by the r
turns must be DIT clared by the canvassT
board In case OF candidate for oftlc
he has a legal right to this declaration
, and If by this declaration candidate HI
received majority Of the votes the cert
ficate must be issued to him, and it is
illegal act to, deprive him OF tn
evidence of his title to odic
As was said in O'Farrell VS.. Colby, {
Mimi, 1870, but court may by mai
damus compel the proper certifying OF
GERS to discharge their duties, and arm tt
parties elected to such legislative Doc
with the credentials necessary to enab
them to assert their rights before tt
proper tribunal" This does not me-
esssrily give the candidate the Office, il
deed he may never obtain it, but he he
a right to have what the law gives hir
from the canvassing board.
| The record shows that the mandarin
proceeding was before the court at th
time this bill for injunction Was present
cd, as it bears an earlier number upol
the docket, hence the court was informed
that it might become the duty OF tn
! court to compel the board to declare
different result from that upon which
the board was about to issue certificates
so that the court by refusing to restrain
the issuance OF illegal certificates woulC
practically become party to the trans
action.
1t was the plain duty of the court, anC
it had full power to prevent certificates
from being issued until such time, as by
the remedy pointed out by the statute, il
could be definitely ascertained what the
result of the election was, and to whom
certificates should be issued by the
board,
The bill in this case sought to restrain
the doing OF a fraudulent act. 1t sought
to prevent vexatious and expensive liti-
cation, and it pointed out the necessity
for prompt relief; but il is urged that
there is want of jurisdiction, because
there was remedy at law. That there
is q remedy at law is not sufficient; it
must be an adequate remedy. Under
the law of this territory the remedy
at law was not an adequate remedy
in the case. If this had been a
bill to contest an election, or try the title
to an office, there would be force in the
but it is not a case OF that
kind. The law OF this territory clothes
the courts expressly with full power,
when properly called upon by tax payer
Of the proper county, tt grant the writ OF
both alternative and peremp-
tory, to compel canyassing boards to do
heir duty, if they fail, neglect or refuse
% do it. That duty is to canvass each
and every return before them, declare the
'esult from the face OF the returns, and
lnder section 1893 they must issue GER
lfcates to the persons having the great
EST number of votes for the particular Of
ice. In other words, the canvassing
BOARD must give to the person receiving
he greatest number of votes lat an cleo.
ion for ofiicers) after they have ascer-
aimed from an honest canvass OF all the
eturns, the certificate which is prima
acie evidence of his title to the office,
nd it also secures to the people an
lonest expression OF their will. |
my other canvass, or tie issuing
f any other certificate, would |
70 gross fraud upon both the persons
'oted for, and the people. But for the
Intervention of equity in such cases a.
his prima facie evidence of title to the
anne office may be given to more than
ne person by INSCRIPTIONS officials, and
so the very purpose of the law would
e defeated. AS the law applies equally
} all election returns, it follows that the
gbts acquired by candidate for election
} office at an election in this territory
re to be preserved from their inception,
nd the right OF a person elected to office
1 this territory is, to have the legal evil
ence OF that right which the canvassing
oald are required by law to give him,
nd further that such legal evidence OF
ght to the office shall not be given to
mother. The policy OF the law is to de-
rive canvassing boards OF their power to
0 harm, such as the bill shows was
bout to be done. The court in South
arolina in the case of Grier VS.. Shackle-
'rd 8 Brew, 40l, speaking Of the duty OF
ection managers: at is not to be be-
eyed that the legislature Intended to
ang the most important rights OF the
tizens on the arbitrary decision OF such
tribunal. If they ale to range through
| the vagaries Their capricious fancies,
lie elective franchise will come an idle
ockerv."
Is it an adequate remedy, for candi-
ate, having received the greatest number
votes, to be compelled to contest be-
re the legislature, a defeated candidate
iving prima facle evidence OF title to the
lice given him in evidence of law
ainly it is not The law commands
Q board, and if they refuse, the court
ust compel the board to give the sue
ssful candidate having prima facie evil
,nce OF his rights to the office, and it is
r the defeated candidate to resort to quo
arranto or contest as the case may be.
lese remedies may be adequate for the
,feated candidate, but they are not for
9 successful candidate. The legislature
territory is limited in its sessions to
xty days and compensation is
lid to the sitting member. Suppose q
)ard OF canvassers gives certificate OF
ection to defeated candidate, he pre-
nts it and takes his seat, contest is
ought by successful candidate, but by
clay it is not decided prior to adjourn
ent, where is the remedy for the candi.
,te who was actually elected? Evidently
VII 10 iOl uh auCIuatC iChiONys IL |
BARD OF canvassers do their duty, the
lccesSful candidate will receive prima
Gle evidence of his right to the office.
the unsuccessful candidate desires to
lestion the result, he may resort to the
appropriate remedy, 90 behind the re-
rms, and then the case has reached what
regarded in law as Contested election
lse."
Except in cases OF special injunction
stay waste or prevent other lrreparable
Jury, the bill should generally show
,me primary equity in aid of which the
junction is asked, and the relief is
.anted as ancillary to or in support of the
'lmarv equity whose enforcement is thus
,ught."
Patterson VS.. Miller, 4 Jones, Eq. 451 ,
Washington vs.. Emery, Jones Eq 49,
Sand it is incumbent upon the party
'ekiag relief by interlocutory injunction
show some fair legal or equitable rights
I'D we'll grounded apprehension of inn