Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1910-09-01
D NELL CASE
IS AFFIRMED
Associate Justice McFie Also
Sustained in Estancia
Matter
DUKE CITY ELECTION CONTEST
Territorial Supreme Court Ad-
journs After Strenuous
Session.

! The territorial supreme court ad
| journed this afternoon after handing
| down six important opinions and af
| ter a session that was most remark
| able one for the amount of work ac.
complished. In the Albuquerque may
orally cases, Territory of New Mexico
ex rel Felix H. Lester, appellee, VS..
A, w. Suddith, ct al, appellants, and
| Territory of New Mexico, ex rel, Fe.
lix H. Lester, appellee, VS.. N. E. Stev-
ems, ct al, appellants, from Bernalillc
county, cases Nos. 1889 and 1340 the
cause is reversed and remanded for
further proceedings not inconsistent
syllabus says:
1. Where judges in municipal
election show in making their return
under Compiled Laws 1857, 1859, that
a certain number of ballots have
been cast which they have failed to
count for any candidate, mandamus
and not quo Warranto is the proper
remedy to enforce compliance with
the duty to count and make returns
OF such ballots imposed by law.
| 2. After ballots have been rendered
by the voter and deposited in the
ballot box the quasijudicial function
to reject ballots given election judges
by c. l.. Sec. 1865, 1868, becomes ex-
! hausted and thereafter their powers
as to such ballots become purely min
isterial
B. Such ministerial duties include
the obligation to count the ballots
for the candidates whose names ap-
pear thereon and to make return
thereof to the city clerk
| 4. By making partial return, which,
while disclosing the receiving of GER
tain ballots, afiirmatively shows that
these have not been counted for any
candidate and By thereupon adjourn
ing sine die election judges do not be-
come functi offic1o but are still sub.
ject to mandamus requiring them to
reassemble and count such omitted
| ballots.
5. The writ of mandamus will not
require the performance of an act be-
yond the power of the respondent or
dependent upon the will of a thirG
person not party to the suit.
The relator Felix H. Lester was
| Democratic candidate for the Office OF
mayor of Albuquerque at the spring
election. DR.. Elder was the Republi-
can candidate. The official returns
gave Elder plurality, but Lester pray
ed writs of mandamus directing the
boards of election in the Second and
Third Wards to count two ballots
which he alleged they had failed to
count. The court sustained said mo
4 tions, peremptory writs were allowed
. and appeals taken to the supreme
court, Lester meanwhile remaining in
Office. The opinion is by Chief Justice
Pope. The opinion, an exhaustive one
holds "that the writ was improvident
:. ly granted, at least insofar as it di
. rects returns not within the power o.
, respondents to be amplified by them.
AS the writ had not included the
city clerk into whose custody the bal
lot boxes had been placed, it was in
effective. The probable procedure O
the attorneys Of Elder will now be tt
!, ask for writ of mandamus on the
city clerk to certify to the face of tn
returns.
The o'NeilI Case.
In case No. 1924, Michael OiNeill
appellant, VS.. F. j. Otero, specia
master, appellee, from Santa Fe cour
ty, the judgment of the lower cour
is sustained. The case involved th'
Square Deal" York" Gold Coin
and "Zinc Blend in the Cerrillos Min
ing district, southern Santa Fe county
{ which had been relocated by Josepl
DeLallo, who conveyed them to Mich
cal O'Neill the appellant in this cause
1.-The syllabus says:
l. The attempt of an agent employ
I ed to do the annual assessment worl
on mining claim, after failure or IL
territorial neglect to do such work, t
relocate the claim even though sue
e attempted relocation is made in tn
name Of third party from whom tn
lagent subsequently obtains title b.
deed, is fraud upon his principal.
n 2. One who takes advantage OF hi
: position as agent and Representative
- Of another and thereby fraudulent
= obtains title to certain mining claim
! which in equity and good conscienc
~ belong to his principal, will be chars
. ed in equity as a trustee ex-malefici
n OF his principal.
81 This sustains the judgment Of tn
e lower court which implied that O'Neil
Ie had neglected to do the assessmeI
e work on the claims involved so ths