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

lspeclal Dispatch 10 the morning JournaiI
Santa Fe, n. NJ. Sept. by a de-
cision handed down by the sapreI.la
court of New Mexico in the case OF
Territory eX rel Felix Lester, appellee,
vs. A. V. Suddith. et al. appellants,
and the case Of the territory ex rel
Felix Lester, appellee, VS.. n. r. SteY-
ems, ct al, appellants, the cases inyolV-
ing the right to have the ballots in the
recent city election recounted. the
judgment Of the lower court is revers-
ed and he cause remanded to the
court below for further proceedings.
The opinion is by Chief Justice Pope.
with Associate Justices McEie and
Wright concurring. Associate Justices
Parker and Mechom concur in the re-
versal only.
The decision is volumnous one
and while it holds that the court be
low had the power to require the cleo
ton boards TO reconvene and re-can-
Vass the returns, il is held that the
writ of lnandamus was improperly
granted for the reason that 1t com
manded something which was beyond
the power of the defendant election
boards to obey: for the reason, that
at the time the writ was issued the
ballot boxes and ballots were in the
custody Of the city clerk. The city
clerk not having been made party
to the suit was under no obligation 10
deliver the ballots To the election
board. The argument that the election
hoard having once made its return
could not be reconvened, carried no
weight with the court, which holds
that the board IS in existence and sub
iect to the mandate of the court until
its duties have been fully performed
An official body cannot commit SUI
eide, the court holds, and it becomes
functus officio only on the completion
Of the duties for which it wasI
brought into being. The fun text Of
the syllabus, statements of facts, ana
the decision of the court follows
SYLLABUS
BY the Court)
] Where judges In a municipal election
show IN making their return under e, T.
1857, 1889 hat a certain number Of hai-
lots have been cast which they nave failed
70 count for any candidate. mandamus ana
not quo warranto, is the proper remedy
10 enforce compliance with the duty 70
count ana make returns of such ballots |
Z After ballots have been tendered by |
'he voter and deposited IN the paHot e"A |
Fhe quasi judicial function to reject ballots |
given election judges hy G. L.. sec 1860 !
lbeN. become exhausted and thereafter their |
i""eis as 10 such ballots become purely |
3 such ministerial duties include the |
'ongations TO count the ballots Tor the
iiulndtes whose names appeat 'i'i ~,
aha to make return thereof 10 the ciS |
BY making a partial return which
while disclosing the receiving Of certain /
ballots affirmatively shows thar these have
Apt been counted tor any candidate and hy
'finSSrsupon adjo9rning sine dc eleo'lon t,,
are stu subject 20 mandamus recurring
mem mem 10 reasscmble and count such omitted
The writ of mandamus viii not re
,Wir the performance " an act beyond
',,e 'nr power of the respondent or dependen,
ta tr'n n the w'll Of third person not party
statement OF the Facts.
ne relatur Felix ". Lester, was demo
cratic candidate for the office Of mayor
~ the city Of Albuquerque at an election
held April g. 1910 he prayed wrts Of
We're Judges and clerks of election in the
second anG third wards of the city ot Al
luerque. directing them TO reconNene as
49, election boards and IN the seton9
W ara count two ballots which he alleged |
n,s mad Jailed 90 count and IN the tniia
f5" seven ballots which he alleged tneS
ian Tailed 90 count He set up in his IN
nation that the respondents had refused
~ count said ballots. that the returns 'i |
.ne dependents did not correctly state tho
ApN % the election. that N said returns |
nnq been correctly and properly certified
ln7E uia have changed the result OF the
FtNon- In No. 1899 tWo of the |
'lses ana one ~ the clerks filed Nefi-
~ answer admitting an the allegations
fsi-i Wit except that they dla h.t g..
Amy KNOW f0r whom one Of the ballots
.tu noi appear. and p. Cristy. one "f
i' Judges. is the only appellant He De
1i ,ui ted ana his demurrer having been over
'ulea answered allepine first that the
'Ait had no Jurisdiction Of the subject
inter OF n the parties for the reason that
-a. iNg made and certified the return ~ |
.i5 erection and filed same with the city
~ X as required hy law and adjourned sine
~ thef became funcfus ufficia- Secord, | D
II TIE relatnr had an adequate remedy |
I law hy QUO warranto Third that said | .
II E and clerks performed the duties
.itf ntfice as provided by law. ~fnurth-
.i.i tnaf there were Two ballots c1st Z l
me democratic candidate for MAYOR /
~. were not counted Tor him. but on the !
,'iaff stated that there were two ballots | I
~ counted one of said ballots being Tor |
~ neinecratlc candidate and one being for :
&c republican rau1fdaf. - r,.s-rr FIffn 4