Bristol, Associated Justice:
The above three contested elections cases for the respective offices of sheriff, treasurer and judge of probate, are here by appeal from the third judicial district court for the county of Doña Ana.
Over seventy cases of illegal voting on various grounds are alleged by each of the contestants, and between two hundred and three hundred by each of the respondents.
The testimony is very voluminous, each alleged ground of illegality in voting presents a separate and distinct issue to be ruled upon. I will consider the several cases together without reference to the testimony taken -before the master, except so far as may be necessary for a final disposition of the case.
The official returns of the judges of election for each of the precincts in the county are in evidence.
From these returns it clearly appears that the contestant, Thomas J. Bull, for the office of sheriff, received two more votes than the respondent, James W. Southwick. That the contestant, John D. Barncastle, for the office of treasurer, received nine more votes than the respondent, Martin Amador, and that the respondent, Maximo Casteñada, for the office of probate judge, received twelve more votes than the contestant, Evangelisto Chaves.
Casteñada having received a majority of votes, very properly received his certificate of election from the canvassing-board.
This same canvassing board, however, refused to issue certificates to either Bull or Barncastle, but instead thereof gave certificates of election to the minority candidates, Southwick and Amador.
Why was this ?
There is nothing before me to clear up this mystery, except certain undisputed facts in relation thereto, appearing on the face of the pleadings, and the official returns of the judges of election of the several precincts.
The notice of contest for the office of sheriff, among other things, contains the allegations substantially, that the judges of election of precinct No. 2, returned to the canvassing-board for the contestant, Bull, sixty-four votes; that of said votes the canvassing board unlawfully, designedly and fraudulently neglected and refused to canvass and count for the contestant one of said votes.
Also that the judges of election of precinct No. 8, returned to said canvassing board forty votes for said contestant, Bull; that of said votes the canvassing board unlawfully, designedly and fraudulently neglected and refused to canvass and count for the contestant two votes.
And also that the judges of election of precinct No. 9, returned to said canvassing board nineteen votes for the contestant, Bull; that of said nineteen votes the canvassing board unlawfully, designedly and fraudulently neglected and refused to canvass and count for the contestant each and everyone of said votes.
The respective notices of contest for the offices of treasurer and probate judge contain the same allegations as to the return of votes from precincts Nos.'2, 8 and 9 respectively, except that for treasurer. Barncastle received sixty-six votes in precinct No. 2, and forty votes in precinct No. 8. Also that the contestant, Chaves, received sixty-seven votes in precinct No. 2, and thirty-nine votes in precinct No. 8.
The answers of the respective respondents to these allegations are somewhat peculiar, and deserve especial notice. Each of these answers is to the same effect, and one will answer for all. I will take that of the respondent, Amador, for office of treasurer as,a sample. He denies generally:
“ That the said county commisioners failed at any time or neglected or refused to count, canvass, or allow for said contestant the full number of votes returned as having been cast for him, said contestant, at said county for said office of treasurer, and denies that said commissioners as a canvassing board at the canvass of returns of said election did wrongfully, unlawfully or fraudulently neglect or fail or refuse or omit to count, canvass and allow you, the said contestant, for said office 'of treasurer twenty-two votes or any number whatever which appeared from said returns to have been received by said contestant for the said office of treasurer; and he, said respondent, denies that at said canvass of the election returns of said election for said office of treasurer the commissioners unlawfully or fraudulently or without sufficient cause threw out or refused to consider or canvass the returns of precinct No. 9 of said county, or to in any manner deprive him, said contestant, of nineteen votes or any vote or votes whatever. This respondent denies that the county commissioners sitting as a canvassing board as aforesaid, ever at any time wrongfully or fraudulently or in violation of law, did omit of fail or neglect or refuse to count and canvass and allow for said contestants the full number of votes returned as having been cast and counted at precinct No. 8, or any other precinct of said county at said election for said office of treasurer; and denies that said contestant was by said commissioners then and there as aforesaid deprived of the benefit of any votes whatever, which or any of which had been lawfully cast, counted or returned for said contestant at said election for said office of treasurer.
“ This respondent avers the fact to be that at the election aforesaid at precinct No. 2, the vote of Adolph Lea was received by the judges of election at said precinct, which vote was illegal and not entitled to be cast, canvassed or counted; the said Adolph Lea not then being registered at said precinct, nor having a certificate of registration as required by law.
“ And that at precinct No. 8, aforesaid, the votes of Atanacio Rivera and Senobio Nevares, were each and both received by the judges of election at said precinct; which votes and each of them were illegal; they, the said Atanacio Rivera and Senobio Nevares, and each of them not then and there being citizens of the United States, and not then and there being registered as voters as provided by law ; and this respondent charges and specifies that the votes of said Adolph Lea and of Atanacio Rivera and Senobio Nevares, and each and every one of them so illegally voted and received, were voted for you for said office of treasurer, and wrongfully attempted to be counted for you, said contestant. * * *
“ And ” (this respondent) “ avers the fact to be that the returns and papers to wit: poll books and registration lists of said precincts, to wit: precincts Nos. 2, * * * 8 and 9 respectively, * * * show that at precinct No. 2 aforesaid, John D. Barncastle received but sixty-five votes * * * at said precinct No. 8, John I). Barncastle received but thirty-eight votes, at said precinct No., 9, John D. Barncastle received no votes.”
Answers substantially the same were made to these allegations in the notices of contests for the offices' of sheriff and probate judge by the respective respondents, Southwick and Casteñada, with the exceptions of the averments in the answer of Southwick that Bull received but sixty-three votes in precinct No. 2, and but thirty-eight in precinct No. 8; and in the answer of Casteñada that Chaves received but sixty-six votes in precinct No. 2, and but thirty-seven in precinct No. 8. The logic, significance and effect of these several answers to the allegations under consideration, are virtual admissions that the canvassing board threw out one vote for the contestants from precinct No. 2, also two votes from precinct No. 8, and the entire returns from precinct No. 9, accompanied, however, by the general denial that this was done unlawfully or fraudulently.
That in precinct No. 2, one vote, that of Adolph Lea, was received by the judges of election for the respective contestants, and counted and returned by them as such to the canvassing board; but, as is claimed by the respondents, such vote being an illegal vote, was no vote, and being no vote, the several contestants received in that precinct one vote less than the number returned by the judges of election, and on that ground the canvassing board canvassed and counted for the contestants one vote less from that precinct than was returned by the judges of election.
That in precinct No. 8, two votes, those of Atanacio Rivera and Senobio Nevares, were in like manner received by the judges of election for the respective contestants, and counted and returned by them to the canvassing board as legal votes, but such votes being illegal were not votes, and not being votes, the contestants received in said precinct No. 8, two votes less than were returned by the judges of election, and therefore the canvassing board canvassed and counted for the contestants two votes less than were so returned.
And that in precinct No. 9, neither of the contestants received either nineteen or any votes whatever — and therefore none were or could be canvassed and counted by the canvassing board for either of the contestants.
That is to say, the canvassing board usurped the functions of the judges of election and assumed the powers of a judicial tribunal — in the absence of the parties interested — to decide and determine the legality of the vote of Adolph Lea in precinct No. 2, as also the legality of the votes of Atanacio Rivera and Senobio Nevares in precinct No. 8.
The returns from precinct No. 9 by the judges of elections certainly show that nineteen' votes were cast for each of the contestants. These returns in every respect are in strict conformity to the requirements of the statute, except that the printed form of the oath to be taken by the judges of election is not filled up and signed by them, nor is there any evidence appearing thereby that they took such oath. It may be fairly assumed, therefore, that the only ground on which the canvassing board and the respondents considered or pretended that neither of the contestants received any votes at all in precinct No. 9, is that the judges of election thereof did not take and subscribe the oath required by law, and therefore, in consequence of that omission, all the votes cast in that precinct were- illegal, and being illegal, were not votes, and were not and ought not to be counted or canvassed by the canvassing board. In this instance, also, the canvassing board assumed the functions of a judicial tribunal to pass upon the legality of the votes cast in precinct No. 9.
Long before these answers were put in by the respondents, these same questions came before me in a mandamus proceeding instituted to compel this canvassing board to canvass and count for one of these contestants said nineteen votes so thrown out by them from precinct No. 9; also said two votes from precinct No. 8, and the one vote from precinct No. 2, so thrown out by them.
There were various delays in consequence of the case not being properly presented with all the facts, but it was finally presented with all the returns and data that were before the canvassing board, and upon which they based their action in the premises, and all these questions arose upon a motion to quash the alternative writ of mcmdamus.
The law was carefully considered, precedents and authorities were cited and read. The motion to quash was overruled, and the canvassing board ordered to canvass and count said votes or show cause to the contrary by a certain day. An evasive return was put in, which was quashed and the board ordered to file a proper return by another day. In the meantime, the board went out of office and a new board became their successors, and the case was never pressed for a final determination.
On the motion to quash the alternative writ of mcmdamus, all the questions were ruled upon. It was then decided that the canvassing board had only ministerial functions to canvass and count the votes as returned by the judges of election, to ascertain and declare the respective majorities of votes received by the respective candidates for office from the aggregate number of votes so returned by the judges of election. That they had no judicial powers whatever to pass upon and decide as to the illegality of individual votes received and returned to them by the judges of election, and particularly so as to precinct No. 9. That the judges of election of that precinct, notwithstanding they may not have taken and subscribed the oath as required by statute, were nevertheless defacto judges of election, and their official acts otherwise regular, were entitled to full faith and credit; and that their omission to take such oath, while it might render them liable to prosecution and severe penalties, could not in any way affect the legality of votes received and returned by them; and that it was the duty of the canvassing board to canvass and count all such votes for the respective candidates for whom they were cast.
In making these rulings, I simply followed the uniform decisions of the courts on the subject. I had not then, nor have I now, any doubts as to their correctness. Each of these respondents in their answers has substantially reiterated, the same grounds so ruled against, in justification of the acts of the canvassing board in throwing out the returns from precinct No. 9; one vote for the contestants in precinct No. 2, and two votes in precinct No. 8.
In precinct No. 9, nineteen votes were cast for each of the contestants, eleven for each of the respondents. By throwing out the returns from this precinct by the canvassing board, the result of the election, as shown by the returns, was changed so that the contestant, Bull, instead of having a majority of two for the office of. sheriff, his competitor, Southwick, had a majority of six. And the contestant, Barn-castle, instead of having a majority of nine votes for the office of treasurer, had only one majority. And the respondent, Casteñada, instead of having a majority of twelve for the office of probate judge, had a majority of twenty; and by throwing out one vote for each of the contestants in precinct No. 2, and two votes in precinct No. 8, the result of the election, as shown by the returns of the judges of election, was further changed so as to give Southwick, for sheriff, a majority of nine; to Amador, for treasurer, a majority of two, and to Casteñada, for judge of probate, a majority -of twenty-three.
This then, is the explanation, and the reason why South-wick received from the canvassing board the certificate of election for sheriff, instead of Bull; and why Amador received the certificate of election for treasurer instead of Barn-castle.
The powers and duties of the county commissioners as a canvassing board are clearly and specifically defined in the ninth subdivision of section 4, of the act of 1876.
The provision of the act is as follows:
“ Said board of commissioners shall ” * * * “ also act as boards of canvassers of the elections within their respective counties; and shall count the votes cast in any election within their respective counties, and shall determine the result thereof from the returns of „the judges of election of the various precincts, and shall declare the result of said election, and shall immediately issue a certificate to the person that may have received the highest number of votes for any office.” * * * “ The votes east in any election shall be canvassed and counted within the time now prescribed by law, and the said board of commissioners shall discharge all the duties, and shall exercise all the powers now exercised by the several probate judges, relative to elections, as now required by law, and shall be subject to the same penalties for any failure in the discharge of their duties, or abuse or usurpation of power:” Vide laws of N. M., by Prince, chief justice, page 226, sub. 9, sec. 14. This law is concise and plain. Whatever votes have passed the judges of election, and received by them as votes, and as such returned by them to the canvassing board as having been cast for certain candidates respectively — the returns showing in an intelligible manner the number of votes and for whom cast — it becomes the ministerial duty of the canvassing board to count all such votes, and declare the result from such returns alone, without sitting as a court of review — in the absence of the parties interested — -for the purpose of passing upon the illegality or legality of individual voters, whose votes have been so returned to them.
But it was suggested by one of the counsel for respondents, that at and previous to the date of the act creating county commissioners and conferring upon them the powers of a canvassing board and of probate judges in regard to elections, the judges of probate did possess some sort of judicial power to determine the illegality of votes at the time the returns were canvassed ; and that under the provisions of the statute last above quoted, the canvassing board could exercise the same functions in determining the illegality of voters.
The only provision of statute at any time in force, on which any such suggestion could be based is contained in the act of July 20th, 1851, which provides as follows :
“ Within six days after the election, the probate judge shall call to his assistance one of the justices of the peace of the county, and publicly examine the votes polled for each candidate, giving notice thereof two days previous, which notice shall be posted up at the court house for the information of the people where the examination is to be held,, and any citizen shall have the right to question the legality or ‘illegality of any vote:" Laws N. M., Prince’s ed., sec. 17, p. 328.
Whatever significance may be given to .this statute, it certainly never conferred the power on the canvassing officers to determine the illegality of votes and to reject them on that ground, for section 55 of the same act specifically prescribes the mode in which the illegality of votes shall be determined and the votes rejected. That section provides as follows:
“ To reject any illegal votes that may be polled at any election in this territory it shall not be necessary to contest or question them at the .polls, but they may be rejected by the authorities qualified by law to determine the validity of said elections, by being proved, after due notice is given by the party contesting said election to the opposing party; said notice in any county election shall not be less than eight days, and shall, in all cases be within thirty days thereafter:” Laws N. M., Prince’s ed., sec. 55, p. 333.
This, then, was the only mode by which illegal votes received and returned by the judges of election could be determined and rejected under the former administration of the probate judges; and that mode certainly was not to be executed by the canvassing officers at the time the returns from the several precincts were canvassed by them.
It is a well authenticated fact that one of the most disgraceful episodes in the history of the politics of this same county was, some years ago, enacted by a judge of probate and justice of the peace, acting as a canvassing board under the supposed authority of sec. 17 of said act of 20th July, 1851.
As such board of canvassers, they assumed judicial power to pass upon the illegality of and reject votes without any other ceremony than because partisan bystanders challenged them as illegal.
In this way hundreds of votes were thrown out and the result of the election thereby arbitrarily changed. This is but another illustration of what experience has long since demonstrated, which is, that if such judicial power should be conferred upon mere canvassing boards, to be exercised at the close of a hotly contested election — in the absence of the real parties interested, and almost always with the partisan advisors of such boards in the background — rtheir sittings would be marked by the exercise of arbitrary power that would be more aggressive and odious than that of the ancient court of Star Chamber.
After votes have been received and regularly returned by the judges of election, and questions as to the illegality of any such votes shall subsequently be raised, the respective candidates for whom such are cast are, on principle and as a matter of law, as much entitled to their day in court and to be heard thereon before such votes are rejected, as are the litigants in any other form of judicial proceeding.
The only lawful tribunal having original jurisdiction to determine questions of this kind is the district court: Act of 1874, Prince’s Laws N. M., 344.
The only mode by which such questions can be determined by the district court in a proceeding between rival candidates alone, is that prescribed by the act of 1876: Prince’s Laws N. M., 134.
For the reasons assigned it is clearly my opinion, as. a matter of law that the -canvassing board, wrongfully and without authority of law, issued certificates of election to Sonthwick and Amador; that such certificates ought to have been issued to Bull for sheriff, and to Barncastle for treasurer; that by reason of said certificates so as aforesaid wrongfully issued, the respondents, South wick and Amador, have improperly held the respective offices in question, pending the termination of these contested election cases; that in the meantime, though said respondents have been such officers defacto, and their official acts entitled to full faith and credit as such, yet they have not been such officers de jure.
I have gone over this branch of the case very much in detail and as thoroughly as I was able, because the questions involved are really important, and have not, to my knowledge, ever been ruled upon by our courts. If there is any misapprehension in the minds of canvassing boards as to their precise powers and duties, it is of the greatest importance to -the public, as well as for their own protection against severe statutory penalties, that the matter should be settled and determined by the courts.
There is another branch of the cases, bearing upon certain duties of judges of election, that is of sufficient importance to merit some attention.
The judges of election of pre'einct No. 3 returned 114 votes- for the respondent, Southwick, for sheriff, and 58 for the contestant, Bull; also 114 votes for Amador for treasurer,_ and 54 for the contestant, Barncastle; also 129 votes for the respondent, CasteBada, for probate judge, and 40 for the contestant, Chaves; all the respondents receiving large majorities. \
In each of the notices of contest for the respective offices in question there are allegations, substantially, that the returns and poll books of this precinct show upon their face that they are so contradictory, unreliable, defective and tainted with fraud as to render them entirely worthless as election returns, because: 1st. It cannot be determined from said returns and poll books, with any degree of certainty, how many or what particular- persons voted thereat for said officers respectively. 2d. Because the numbers written respectively on the tickets voted thereat do not conform to the respective numbers set .opposite the names of voters on the poll book. 3d. Because the whole conduct of the election officers who held said election at precinct No. 3, then and there amounted to such a disregard of their official duties as to render their doings unintelligible and unworthy of credence, and the results of their action unreliable for any purpose. 4th. Because it appears from the poll books of said precinct that S. II. Newman voted for eacli of said respondents for the said respective offices for which they were candidates, whereas, in truth and in fact, said Newman did not vote at said precinct at all, and did not vote at said election for either'of the respondents. 5th. Because it appears from the poll book that one Jacinto Armijo then and there voted for the respondents, Southwick and Casteñada, and for the contestant, Barncastle, whereas, in truth and in fact, he did not then and there so vote. 6th. Because it appears from said poll book that one S. M. Blun voted for each of said respondents, whereas, in truth and in fact, he did not so vote; and, 7 th. Because it appears from such poll book of precinct No. 3 that S. B. Newcomb and ¥m. L. Rynerson voted at said precinct at said election, whereas, in truth and in fact, neither of them then and there voted.
In response to these allegations the respective respondents in their answers deny all fraud, negligence and irregularity-on the part of the judges of election of this precinct.
As to the allegations in regard to the' voting of S. H. Newman, Jacinto Armijo and Wm. L. Bynerson, they simply deny that they, or either of them, at said election, voted at said precinct; thus virtually admitting- the allegations in respect thereto contained in the notices of contest.
There is no answer to the allegations in regard to the voting of S. B. Newcomb and S. M. Blun — which allegations are of course admitted.
In further answer to such allegations the respondents aver that the county clerk, Horace F. Stephenson, a strong partisan of the contestants, wilfully, corruptly and fraudulently neglected and refused to deliver the poll books and ballot box of said precinct to the judges of election, thereof, for the purpose of obstructing and preventing a full and fair election thereat; and that he left the same locked up in his office on the morning of the day of said election, and absented himself, so that said poll books and ballot box could not be obtained at the time for opening the polls for said election, nor were they obtained until the doors of his office had been forced open, when they were conveyed to said judges of election.
In further response to said allegations they aver that any irregularity touching said returns from precinct No. 3 was the result of said action on the part of said Stephenson. They further aver that by the numbers on the ballots and the numbers opposite each voter’s name on the poll books it can be determined by whom and for whom each and every ballot was cast.
Now, it is apparent from an examination of the returns of this precinct, that in some respects either these returns are false, or these answers are false. For instance, these answers aver that said S. H. Newman, Jacinto Armijo and W. L. Rynerson did not, at said election, at said precinct, vote in any manner whatever; whereas the judges of election thereof certainly recorded in the poll books and returns that said S. H. Newman did vote thereat ballot numbered 161, for each of the respondents; also that said Jacinto Armijo thereat voted ballot numbered 3, for each of the respondents, South-wick. and Casteflada, and for the contestant, Barncastle; also that said W. L. Rynerson voted ballot numbered 183, for no candidate whatever; that is to say, he voted a blank ballot so numbered. These poll books and returns further show that said S. M. Blun voted thereat ballot numbered 41, for each of the respondents, and that S. B. Newcomb voted ballot numbered 160, for Manuel Nevares, for justice of the peace, and for no other candidate.
But the returns from another precinct (No. 10), show that thereat, at said election, said S. B. Newcomb voted ballot numbered 3, for each of the respondents, on a certificate of registration from precinct No. 3 ; also that the returns from precinct No. 18 show that W. L. Rynerson voted thereat ballot numbered 112, for each of the respondents, on a certificate of registration from said precinct No. 3.
On examining the poll books and returns from this precinct, No. 3, the first 'thing that must impress anyone as extraordinary and incredible is the fact that, according to such returns, all the voters at said precinct marched to the polls and voted in alphabetical order.
That is, all those voters whose surname commenced with the letter “ A” — thirty-nine in all — voted before anyone else with names commencing with any other letter voted. Those voters under the initial “ A” are recorded as having voted ballots numbered from and including ballot numbered 1, to and including ballot numbered 39, in regular mmierical order.
After these had all voted, then all those voters, the initial letter'of whose surnames was “B,” voted in regular numerical order ballots numbered from and including ballot numbered 40, to and including ballot numbered 60 — twenty-one in all. Then, in like manner, all those under the initial “ C ” voted, and then those under the initial “ D,” and so on through tbe entire alphabet in regular numerical order, until the initial “Q”is reached. The “Qs” commenced with ballot numbered 175. One voter, the first under this initial — one Jesus Quesada — is recorded as having voted that ballot. Those under the remainder of this initial “Q,” and extending through the initials R, S, T, U, V, W and Y, in regular alphabetical and numerical order — fifty in all — from and including ballot numbered 176, to and including ballot numbered 225, are recorded as having voted blank ballots.
The law in regard to making out these poll books and returns is very plain and simple. The statute has not only prescribed the mode, but has prescribed a form for executing that mode. The judges of election of precinct No. 3 had one of these forms in print, with appropriate columns marked and with suitable headings, also in print, indicating precisely how the poll books and returns should be made out.
The mode and form prescribed by law is as follows : The ballot of the first voter appearing at the polls and voting is to be numbered one by the judges of election. The same number is to be put down by them in the poll book, and opposite the same number, in the proper column therein, is to be written the name of such voter. The ballot so numbered is then deposited in the ballot box.
The ballot of the second voter appearing and voting is' to be numbered two, and the same number put down in the poll book next in order after No. 1, and the name of the voter voting that ballot so numbered is to be written down opposite that number in the poll book, and the ballot then deposited in the ballot box.
The same numerical order and record are to be observed and kept with each voter as he appears and votes.
At the close of the polls the names of the respective candidates voted for by each ballot so numbered and recorded are to be written down in the appropriate columns, and in the proper column under the name of each candidate so voted for, and opposite the same number in the poll book which the ballot bears, and opposite the name of the voter voting the same, is to be recorded the vote, showing that the voter has cast one vote for each candidate so voted for by him.
The poll books of the several precincts with the proper certificates attached and so filled out, constitute the returns of the judges of election to be transmitted to the canvassing board.
With these printed forms of poll books and returns before them, what excuse was there for the judges of election of this precinct to make out false returns as to who voted and how they voted ? If the clerk, Stephenson, was guilty of the charges alleged in the answers, he certainly merits the severest censure, and ought to be prosecuted for gross breach of duty.
But I am unable to perceive how this breach of duty, under the circumstances, could be the occasion for or constitute any justification for making out a false return in any respect. The judges of election could not proceed without the ballot box and poll books. There may have been some delay in procuring them. But it seems they did procure them and proceed with the election. They had the legal forms before them. They filled out these forms in a. certain illegal mode, so as to bear falsity on their face in the respects I have pointed out.
It is quite clear that it cannot be ascertained from the poll books and returns of this precinct how or for whom or what ballot any voter voted, nor are they in and of themselves any evidence that can be relied on that any of the persons whose names are recorded in the poll books and returns voted at all, and that to determine this matter a resort must be had to evidence atiunde.
In these answers it is averred that from the ballots cast at this precinct; the number of votes for each candidate may be determined. That» may be true, but the ballots sealed up and locked up in the ballot box and deposited for safe keeping pending any election contest that might be instituted, constitute no part of the returns of the judges of election to be canvassed by the board of canvassers.
The contestants complain — and I think justly — that in consequence of the falsity of the returns from this precinct, in recording the names of votes opposite the numbers of ballots which they did not vote, it was impossible for them to ascertain therefrom what illegal votes, if any, had been cast for the respondents, and that thereby they were prevented from including any such illegal votes in their notices of contest. If this was designed, it was certainly a fraud.
Whether designed or not, it was an infringement of the rights of candidates desiring to contest the election.
Whether there was or was not any fraud committed at this precinct, one thing is quite certain, and that is, that by reason of the falsity of the returns that I have ¡Jointed out, the door was opened whereby the grossest frauds might have entered, and the greatest obstacles thrown in the way of their detection.
The notices of contest for the respective offices of sheriff and treasurer were duly served on the respective respondents, Soutliwick and Amador, on the fourth day of December, 1880, and the notice of contest for probate judge -was served on the respondent, Oasteflada, on the seventh day of December, 1880.
The provisions of statute under which the cases are brought, so far as they relate to the question involved, are as follows:
“ In all cases of contested elections triable in the district court, the notice of contest when filed and served as now provided by law, shall be taken and considered as the only petition and process necessary for the court to acquire jurisdiction.”
“ The respondent shall file his answer to the notice of contest within twenty days from and after the service of such notice of contest upon him exclusive of the day of such service ; and any material fact alleged in the notice of contest, not specifically denied by the answer within the time aforesaid, shall be taken and considered as true.”
“ The respondent may allege in his answer any matter material to the issue, showing that the contestant is not legally entitled to the office in controversy; and if he claims that illegal votes have been cast or counted for the contestant, he must specify in his answer the name of each person whose vote was so illegally cast or counted, the precinct where he voted, and the facts showing such illegality.”
“ The contestant shall file his reply to any new matter set up in the answer, and serve a copy thereof on the respondent within twenty days from and after the service of the answer, exclusive of the day of such service; and any new matter in the answer material to the issue not specifically denied by such reply within the time aforesaid, shall betaken and considered as true :” Act 1876, Prince’s General Laws N. M., 344—5.
Under the foregoing provisions of law, the time for answering and specifically denying each material allegation in the respective notices of contest for the offices of sheriff and treasurer, and filing and serving the same expired at the end of the 2éth day of December, 1880, and the time for so ■ answering and denying the allegations in the notice of contest for probate judge, and filing and serving the samé expired at the close of the 27th day of December, 1880.
Each of the notices of contest contained allegations that sixty-nine voters, naming them and the precincts where they voted, voted at said election for each of the respondents.
That each of said voters was not qualified to vote, on the ground, among others, that he had-not resided in said county for three months immediately preceding the election.
These allegations, of course, are material, and if true rendered the vote of each of said voters illegal and void ; and whatever the number of illegal votes the testimony may show were cast for the contestants, it is clear they are insufficient in numbers to overbalance these sixty-nine alleged illegal votes for respondents ; and that if these allegations are to be considered as true, then it necessarily follows that each of these cases must be decided in favor of the contestants, Bull, Barncastle and Chaves.
The respondents, South wick and Amador, filed and served answers on the 2-lth day of December, 1880, that being the last day on which the same could be done. But in neither of said answers is there any denial of any of the aforesaid allegations as to the illegality of these sixty-nine votes.
The respondent Casteñada, filed an answer on the 27th of December, 1880, that being the last day for such filing ; but such answer was not served until the expiration of the time for such service, to wit: on the 22d day of that month. Neither does this answer contain any denial of the aforesaid allegations touching the illegality of said sixty-nine votes.
On the 17th day of February, 1881, fifty-nine days after the expiration of the time for Southwick and Amador to answer, and fifty-two days after the time expired for Casteñada to answer, each of the respondents made a motion for leave to file a supplemental answer denying the allegations as to the illegality of said sixty-nine votes, a proposed supplemental answer being attached to the motion in each case.
These motions were set down for hearing on notice to opposing counsel on the first day of February, 1881. A hearing was had on that day — all the parties appearing by counsel, and the application for leave to file such supplemental answers was denied and overruled by the court.
Nothwithstanding this ruling, the respondents, under objection by contestants, have taken testimony before the master, tending to show that said sixty-nine voters had been residents of the county for three months prior to the election.
This testimony has been reported by the master. On the final hearing of the causes, the respondents renewed their motions for leave to file said supplemental answers, for the purpose of having the pleadings conform to the evidence. These motions also, were overruled by the court, and excepted to by respondents.
It is my opinion that this evidence was improperly taken, and might not to be considered ; the same not being responsive or pertinent to any issue in either of the cases.
It is also my opinion that the very object of the statute, in regard to the pleadings and .practice in contested election cases, is to afford, and at the same time to compel the observance of, a speedy mode for conducting and terminating such cases. Its language is plain and free from all ambiguity. There is no room for mistaking its purport and meaning, and I cannot conceive of any reasonable excuse for not following its provisions by either party.
These statutory provisions, as to the time. of filing and serving the notice of contest, answer and reply, are in effect statutes of limitation, taken from the judge all discretion as to extending the time.
In my opinion this is one of the most salutary of our statutory laws. Experience has demonstrated that without some such compulsory, mode as to the time of making -up issues and their trial in contested election cases, subterfuges and delays might, and would be successfully resorted to, so that a final determination could not be reached before the term of office would expire.
At the time the motions for leave to file the supplemental answers were made and heard, no excuse whatever was presented for the delay, nor was any excuse at any time offered, except the negligence and oversight of counsel for the respondents.
If any error was committed by the court below in the premises, it was in overruling the motions in the first instance.
After such ruling, the contestants and their counsel had a right to consider that issue disposed of, and were excused from offering any evidence in support of their allegations.
Nevertheless it was claimed by respondents’ counsel on the argument of the cases, that inasmuch as the people were interested in securing the officers of 1;heir choice, the contestants were bound to prove those allegations, though not denied by the answers.
In reply to this, it may be said, 1st, that it is absurd to introduce evidence to prove the truth of what the law declares “ shall be taken and considered as true ; ” 2d, that this is a proceeding exclusively between rival candidates for office, in which the people in no sense are parties.
That it is competent for an officer to resign — to admit facts that will deprive him of an office and give it to another in a proceeding between them — or by his own negligence in conducting his defense, to produce the same result, there can be no doubt.
If by any such means the candidate should obtain the office, who, in fact, was not elected in a majority of legal votes, and this could be shown by competent evidence, the people would have their remedy in a direct proceeding on their part, by writ of quo warranto. And if successful, while it would not restore to office the candidate who had lost it by his own act or omission, it would oust the other candidate. Both would then be out of office, and the vacancy could be filled in the mode prescribed by law.
The theory of our statute in regard to the institution and prosecution of contested election cases between rival candidates undoubtedly is, that such candidates, being personally interested and desirous of obtaining and holding the office in question, will do all that is necessary to secure their respective rights under the law.
It must be conceded that this statute, when followed by the parties, affords a speedy, consistent and effectual remedy, whereby the rights of the parties, as well as the interests of the people, are well protected.
It is clear, however, that this statutory remedy does not supersede the proceeding by writ of quo warrcmto, on behalf of the people. It is also clear that under this statutory remedy no act or omission by either party can jeopardize the rights of the people, and if by any such act or omission the wrong candidate should obtain office, the people could resort to their remedy by quo wa/rranto.
This statutory proceeding between rival candidates alone is a special proceeding complete in itself, conferring a special jurisdiction on the district court, and to which the general law and rules of the court as to the time of pleading and the discretion of the district judge in extending such time, do not apply.
The special proceeding, therefore, must be strictly followed. It is so plain that there can be no excuse for not following it. When followed, no occasion can ever arise for resorting to a writ of quo warranto.
From the opinion herein expressed, it follows that the record discloses no error, and that the judgment of the court below in each of these contested election cases ought to be affirmed.
Parks, Associate Justice:
Nearly a year since in a contested election cáse in my own district, I was obliged to examine and construe the statute which is in question in this. I then held that the law was mandatory, and have not found any reason in the argument or in the examination of this case to change my opinion.
The correct rule for the interpretation of such statutes is that “ no specific requirement of a statute may be dispensed with except when it is clearly manifest that the legislature did not deem a compliance with it material, or unless it appears to have been prescribed simply as a matter of form.” “ If it is evident from the ordinary grammatical construction of the words used that it intended a right should be enjoyed only upon some specified conditions, there is no power in the courts or elsewhere to dispense with the conditions imposed, or to hold that a thing which it deemed essential to be done at one time, may nevertheless be done at another.”
It is insisted that the statute is directory and that the court had the right in its discretion to give the respondents time to amend their answer in a vital point or to extend the time for answering on one material point, which is substantially the same thing, and that the refusal of the court to do so was an abuse of its discretion. One and a sufficient answer to this is, that leave to amend the answer or to file an amended answer was not asked for till nearly eight weeks had elapsed after the time for answering had expired, and that a corresponding liberality in the court in the exercise of its discretion in. all other respects, would defeat the manifest object of the law, which is a prompt and speedy trial of election contests. It is laid down in • McCrary on the Law of Elections, that amendments should be immediate and for reasons too obvious to need statement here. If the district court had the discretion to permit amendments as claimed, that discretion must be reasonably exercised, and could not be extended so as to relieve the respondents in this case from the consequences of their long and unreasonable delay in asking leave to amend. The authorities cited o.n the argument were numerous, and many of them not applicable. Mr. Mc-Crary’s doctrine that election laws are only means to an end, is not applied by him and cannot be properly applied by anybody to the trial of contested election cases, and the eloquent opinion of the supreme court of Maine, quoting the still more eloquent speech of Mr. Lincoln, is subject to the same objection.
It is not intended to review these authorities. Many of them are profitable study, but none of them are conclusive of this case. It is the duty of the court to avail itself of all such lights, but to use its own judgment in construing this statute and not permit it to be practically repealed by a construction not only too liberal to be wise, but too loose to be safe.
The opinion of the district court is filed with the record in this case, and is believed to be correct. It is so full and complete as to obviate any necessity there might otherwise be for a more lengthy and thorough opinion by this court.
The judgment of the district court is affirmed.