Southwest-sentinel. [volume] (Silver City, N.M.) 1883-189?, 1896-03-17

1911" ~" MAMNNNNN NM0 MNA2AK ~
turn should fall ss evidence Of
what che vote was as actually cast
by the voters. IL the first rule
should be applied, the democrats
would lose 10 votes end the ropub-
licans would gain 10 votes-a diff
ference Of 20 votes, while Ascar-
ate's majority over Raymond on
the face of the returns was only ID;
on the other hand If the second
rule should be applied the demo-
Gratis would lose the whole return
as evidence Of how all Of the 81
votes we're cast, and the republic
cans would gain 10 votes. Coun-
self orthe democratic side contend
ed that the republicans should re-
ceive the full benefit of every vote
cast for them as shown by the
proofs, but that IL the court should
strike down the whole return Of "a
votes, the democrats would not be
deprived of a large number Of
votes actually aud honestly cast
for them, but It would be an un-
Just punishment inflicted upon in-
nocent parties for the fraud Of un-
known persons. They further ar
gued that If an officer Of the cleo
ton had committed the fraud the
return would fall as evidence, but
that consequence did not attach
where the fraud was committed by
third persons. The Judge held
that this distinction was not cor
rectly drawn by counsel; that the
rule laid down by the authorities
and sustained by sound principle
was that If an officer of election is
guilty of fraud, his certificate or
return will fall as evidence wheth-
or the fraud was sufficient to
change the result of the election
or not; but that If the efaad was
committed by third persons the
return would not fall unless the
fraud was sufficient to change or
render doubtful the result Of the
election. If the fraud was sufR-
cient to change the result Of the
election, as inthe case before the
court, the return of the election
officers, based upon a fraud of that
magnitude, falls as evidence. OF
course, the legal votes actually
cast are not necessarily lost, but
each party must establish what
votes and how many were actually
cast for him, and neither party can
be permitted to use the election
returns or certificate as evidence Of
how such votes were cast A
number Of authorities are cited
and quoted in support of this posi-
ton. No other rule, says the
opinion, can safely be applied
without puttinga premium upon
attempts to defraud the popular
will. Those who assail the purity
of the ballot box should know that
it is not simply a question of how
much they may gain by it, but
that q risk of material loss may
follow the discovery of the fraud"
The democratic side relied entire
ly upon the return as evidence of
the number of votes cast for them,
and introduced no proof at all
upon that point. The opinion
calls attention to the fact that the
notice of contest does not attack
the whole Of the "a votes, but the
republican contestants claim hat
out of the "a there were 60 who
voted the republican ticket, the
remaining "a stood unchallenged
as rightfully cast and rightfully
counted for the democrats. The
result was that democrats lost go
out Of the "a. and the republicans
also gained 10.
The judge found the charge OF fraud
in the Iona Parda and Messilla pre-
cincts not sustained by the evidence.
As TO the challenges upon the ground
of non-citizens, kbe opinion held that.
the treaties Of Guadalupe Hidalgo IN
l64S and the Gadsdsn Purchase In 1854
each conferred citizenship o those
Mexican citizens who resided in the
coded territories at the time they were
respectively acquired, provided such CIT
liens should not within n year there
after elect by some positive act to retain
their Mexican citizenship. It was held
that mere passive residence did not
RDaount merely to q declaration OF inten-
ton TO become citizens OF the United
States but conferred citizenship by force
OF treaty stipulRtions. The democrats
had challenged some $40 votes cast for
the republican ticket on the ground Of
illegally. Proof was introduced as to
lib and Il was insisted by the democrats
that under the Law and the evidence
they had successfully assall0d l01 OF
those challenged. The republicans ad-
mitted that 6 Of these were not citizens
OF the United States and also admitted
that the citizenship Of 3 Others were
doubtful; 2 out Of those 3 were found to
be non-cltizepB. The court found that
under the Law and the evidence there
were 80 out OF ell those CHALLENGED had
voted the republican ticket and we're
not citizens, that 2 were minors and 2
were not residents Of the precinct In
which they voted the length Of time ro-
quired by Law, Six were found TO be-
not citizens but the proof wa not sum
oient TO show that they voted for the
contestants. The opinion then goes on
70 discuss the principles and reasons
which guided the court IN determining
the legality Of thes8 votes. It was held
that when It is shown that the voter
was not only an alien by birth but bad
never taken out lotterBo Of naturalization,
Is shown 10 throw the burden
upon those who olaim that be was .
legal voter by force u treaty stipula-
tions 10 show ahrmatively that ha came
within the provisions Of the
anaaey A ataf~anakfn ttnIar eraokw H.