Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1910-09-02

H. Dunbar, and Harry keli4, one ~ IN. 'le
clerks filed verified answer 10 the Wilt
admitting all its allegations y \. stevens
the other Judge, lileu An iltluuNiit ~ ~, sur
port OF me VIII anu anu alIe' Wa'1s " 49,, t.ou
demurrer TO the applicatlnh on t'e ~ 'ut'' 9
thai the court had no luflsalVtloh % anu 'iiSs es
the application ana aitethauNe @ VII IL Que
not state iacts sulIlcleht !" sttte st, eSuSe
action HIS demurrer peiHg "Nettuic" ne
dld not tufthef answer, t, .,,,- qua
p hawiey, ay,, env a. t,n s5,ne fo,n, ,s
an answer pracuc"ly IN tue s"lie lVl. ~, "
appellants answer IN me othef case. aoolng
on information anu peleI em1t t'ie tei'''t
name oppeaiSH "n 70 $500 ~SV'tel''t tlsNe' -. ~
mayor. hut alleging that seven socialist hai
ipts We're cast anu Vouli'et' 9u' ~ M 80"
ited 10 any one iol 5 .ne o,ilee a ~ at"S"a ~,
heeause an the respondents aeleeu 'nat W
SAID nallnis We're luesal tof ~ .4e .sespn ~,
that the lickels hau nov peeh llleu Nlsu ,ls
Hvll, - 'n'i ~ HnC"'vW Sol, "a ~
aliegatlon OF the writ ~ s sacn t"sS % si Ky
ieal0t Illet a ino,loh ~ ,sa tht ~ tme
pieh9inBs n9seu ~ t"e 80 - t'iV ~ ~ ~
pleaulhks aiilIma'lNeiy shuM.u ma ma ny ~
spohueuts hAd hol peiloliheu " ss
imposed by law, the court sustained ssla
and appeals taken IN case 10 10" .y =
- trlsty ana IN case No isa0 ~ y =
ne 'eu"''''"s laws "Pf'"
ION -, ..
~ ppinton mon '', "i '"e e'ae - in,.oi,.es tbe
81 ope. ~. ne ~ So, ~ ,,is,iis - 4aacb
efficacy OF the writ or nlihuaii1 1s ~, 70 V1,n
the conoltons coilplalleu ~ -, ,hi n,t
Of TINS wru was cohslneIee ny ms pU1s'
in Delgado vs. ChaNes, n M e4S. e4e,
whore in an opinion written ny NJ Justce
Freeman me ends wnich ne VIII 1,,.s,tsd mas
colnplsheu were ,Nel ~, W ,'..t ~. ,,P -
and it was remarked that Woulo ne a.
vain ana useless ekhipilioh ~ i-esesrth - ~
undertake 60 point CUT me aihnt IN
Vulnerable instances ~ Mniieh thls WI h.s
been suocessiuuY lnVohe1. N apPl'eu H.
matters OF elecuons 'hls VIII 1as 1t neen WI
Iouhd =" pe "l SlcSSii"l y ~ ~" >
quacy ana espcclally ne proinptnness .,
the relel aiioldeu nN II ms ins"e 80 - .
faVolite ana Naluahle melhod OF redress
by election olhcefs' ana most ludlllies li , nal"
led the courts TO aeal WIN the VII. VIII. me
a fair count. WINE ;" tfedllhs' tne wiz,
however in this class OF cases mas ~ mas no, no,
heen forgotteh that its use Is iiulttu ~
well settled principles, among others the
axiom thal the writ VII ho{ pe aHoNeu |" |
control discretion. lnat Wnlle II WI en-, |
force IL VIII not create a uutg anu ti.a'
IL viii not he granted Whele II is mani !
festly beyond the power OF the respondent
to perform the duties en1olned- Bearing IN
mind the us's and the limitations of the (
writ. we are called upon 10 determine /
" neither IN the present instance IT'S ISSUANCE
First ascertain what We're the duties of the I
territorial judges Of election These duties +
IF course flow solely from the provisions Of I
statute. 1t Is provided &C. L. see. loS I
that the Judges shall close the election !
At six o'clock IN the afternoon ana I'M
nediHtelN lhtreaile Ter shall open the pailpl 4
BOXES and publicly count the votes cast for I
aacn candidate, certifying the poll books as
provided 10y law. BY c. H.. 1883, such |
certificate shall contain the number of
.otes cast for each candidate setting forth
Inc same in writing ana IN figures without
Sec, 2ff1 provides, The returns of all
municipal elections shall be made to the
.lerk or recorder m the corporation, and
mall be opened py nun on the thlrd uay
Iiter election. He shal call to his assist
lnce the mayor of the corporation. or II
he mayor shall have been a candidate at
uch election, then any justice of the peace
4 tho county and shall, IN his presence
make ou. an abstract and ascertain the
elected TpgnPptS
Iuifcd bA law Tor the canvass OF the re-
urns ot county elections, ana snail IN IKE
manner make out a certificate as to each
ahdldate 50 elected, ana cause me same
o be delivered to him or 70 be left al his
lace Of abode
u is Gear that under lhe foregoing Y
hrgs no. here material. ta) to count the
Dtes cast for each candidate. ana, th) 70
ct forth tle number of votes cast for each
andidatc III writing and IN figures in re
urn O. the CITY CLERK
nat the judges counted the Eotes 5uu re- d
orted as 10 the Walu luEoNsu ~ casc
oap; 2a, Hoie' ~ Us c"4 "a NJ ssp o
"lu iilt ptNtN ~ o'tao ~ ti''', aeei,ss /
iallsl uehels hHu peen Cast. ~ nliii5ia ~ Ina
NeiS .PpS alVn tt"' auS le'ui" ~ , ~ @ ,.,S
ase. however lhat WINE 90 V"tes "sie
ist ohlN $50 were nelutiei IN lle N2te uu 5
Jared Tor tle Two candla9tes anu that IN
ne second the seven socialist tickets were
OF counted az an me teiatot' Lester, e, a.,
ouid have been favorable to him TO ex I
lat the judges he required 70 extend upon :
leir returns the names OF the persons TOT I
nom these Onconhted votes hau beeh cast
nce the law as we nave seen requires .
ie Judges not only 20 count me votes, put
declare upon their return the number OF / y
ltes TOR each parry, ana since upon men men d
Sn attempted return u Is eVlaeht tilt' )
hie the Judges nave counted they nave :
the extent OF nlne hallots' not decl'ueu | ]
le primary impression upon the average
nitted to perform their legal duty This
sing true ana since the very essence OF q
e writ of mandamus is 10 require the per g
rmance Of such a duty, II would seem Ss 4
matter Of impression thal thls was n
'oper case for the allowance Of such a \,
rit and that the court below acted prop ! y
y I'm ordering the Judges OF election 10 J
.rlarc for whom these nine votes were 4
Ist n
Having thus stated the matter as one or 4
lpression. So remains To- be determines y
neither or not upon fun conslderat ION or "
ne several objections here urged to the Z
rt of mandamus as the proper remedy
a. the Vfudication of such an apparent
pht the proceedings below may stu be 4
stained The objections presented by ap-
4 without force and have been given the IN
nsideration which their importance de- "
ands II is urged at the outset that the
will not lie because there is a
ain ndeouatc and complete remedy in the
N Of ouo warranto The doctrine on this
ectai subject Is thus stated I'm Spelling
Iuiunctious and other EX. REM See
II.
IN order that the existence of another
nodv shall constitute q bar to relief hy
lndamus such other remedy must not -
lv he an adequate remedy in the general z
nsa of the term but 10 must he specific y
ID approprfate TO the circumstances Of the
rticuiar case. 10 must be such a remedy