Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1910-04-21
COURT DECLINES TO
DISSOLVE ITS
INJUNCTION
LEAVES SITUATION SAME
WITH LESTER ON JOB
SuStaihs Demurrer Of Burkhart
to the Petition Of Elder Ask
inc for Certificate Of EIecitoni
May Appeal,

he sustained the demurrer of Attorney
Summers Burkharl, representing Felix
Lester. to the intervening petition of
Mann and NenablC. representing Or.
John Eldcr. which petition asked that
thc Injunction against city Clerk Me
Minus be dissolved ana that he be or
deted to canvas thu vote for mayor ~
the recent city election, and issue a
ei1tificate to the mayor elect.
Judge Abbot based his action upon
decisions Of the supreme court Of NOV
Mexico, which he cited in his opiniun.
ana which he said were binding upon
his court.
AS a general principle his opinion
said. 'it Is no doubt true that a court
of equity is without " to deter
mine an election contest. but IL has
the power. beyond question. to orGer
officers having ministerial duties Ia
perform lin connection with elections,
to perform these duties as required by
law. and thus IN election contest may
Incidentally be affected"
lie then states that the supreme
court Of New Mexico has upon two oc-
easions affirmed his principle.
Mr.. Burkhart stated last night that
he had not read a copy of the courts
decision and knew nothing of its on
tents. A similar statement was made
by Judge Edward A.. Mann, who stated
further tina he had no comment to
make, although he left the inference
that he would carry n matter to the
territorial supreme court, when told
that in effect, the opinion of the our
sustained the demurrer of Mr.. Burk-
hart.
The effect Of the opinion is to leave
the mayOralty matter in it's present
situation. Lester having retained pos
session Of the offic" of mayor.
The opinion of the court in full is
as follows:
Territory Of New Mexico.
in the District Court, County Of Ber-
nalillo.
Felix II. Lester.
VS..
John Il. McManus. City Clerk, etc.
j. w. Elder, I%ntcrvenQr.
No. S$30.
In this causc the complainant prays
that the defendant. who is the city
clerk of Albuquerque, be enjoined
from canvassing the returns mtdc by
the judges of election for he city
election held April 8, 1910. until The
further order of the court, for the
reason as alleged tina the returns
from Wards . and , We're incomplete
and not in accordance With law; that
the complainant had applied to this
court for Writs Of mandamus to the
Judges of election of said ard re-
curing them to complete said returns
as required by law. and that if the de-
PENDANT should, before tho completion
of said returns, proceed to canvass the
mcomplcte and illegal returns which
had been made the complainant would
be deprived of the office of mayo of
albuquerque to which. rs he claims,
he MAS elected.
This cause was entered It the same
time and in connection with the man
damus proceedings referred to. Nos.
s329 and S329 on The docket OF this
court. In each of the cases last named
the court issued n writ of mandamus
to the judges of election directing
them 70 complete their returns and
in each case the defendants claimed
an appeal ana gave the supcrsedeas
bond required by law.
In this cause. No. $500, j.. w. Elder
interviewed by petition, claiming the
to have the returns c%anVasscd
as made, that on the face OF said re-
turns he was elected mayor Of Albu-
qucrQue and praying that the i%njunc-
ton be dissolved. To this petition the
plaintiff demurred on the ground that
it did not state facts sufficient to con
stitutc 4 cause of action.
III tlif IL StIhNHA bl.ihN NtiflAiiifl ~ !
WAS conceded by counsel on both sides
it searched the record" Tho
position of the intervening petitioner
is that this court is wholly without
rover to enjoin the defendant, the city |
clerk of Albuquerque, from c~anVassing |
returns made by the judges of
as the statute law of the ter
ritory directs.
As a general principle. it is no doubt
NM tl4t - .anttrt of .ft,ftrr 10 tsftl,.t4f I
power to determine an election o II
test. but it has the power. beyond
question, to order Officers having min
duties to perform in connec-
ton with elections to perform those
duties as required by law, II thus
an election contest may be incidentally
Effected.
The supreme court of the territory,
hose decisions are binding on this
curt. has. at least, twice u%neQuivoc-
lily affirmed this principle of law. -,
owls VS.. County Commissioners OF
iernalillo county. 5 y. NJ. l.; In re
Sloan. 5 n. NJ. $40. In the Sloan case
able and exhaustive opinion by
1cFie. j., completely sets forth the
as il is in his territory. In his
opinion Judge Freeman
to Bull VS.. Southwick. , y. NJ.
GSS21. as establishing the doc
iitt IltI the foNhlN COMMISSIONED
citing as q canvassing board, were
ministerial Officers. clothed with
10 judicial discretion even before the
considered in the two later
asses was in existence. In the latter
'ase. Bristol. o.. SAYS: As such board
# -canVassers they assumed judicial
to pass upon the illegality of and
eject votes without any other cere-
than that parties and b%ystand-
RS challenged them as Illegal. o
his is but another illustration of
What experience has long since DEM
'nstTated. which is that il such jude
al power should be conferred upon
mere ~canVassing boards to Zee cxer-
ised al the close Of a hotly contested
lection. and In tho absence of tho
parties Interested. their
fittings would be marked 10y the eX-
rcise of arbitrary power that would
e more aggressive and odious than
hat of the ancient our Of star :
'hamber. That would apply as well
o judges OF election as to the board :
{ which it. was spoken. In the pres =
mt instance n is not ciaimed that the :
Judges Of election. acted dishonesty. /,
mt if the courts have No power to re-
uirc fiem 60 rerform their lcgai i
uties Nhich.they hTve failed t. per
ht@mStake. they are equally
'oVerless To- comp-i0them TO dn what