*1 law, the earlier recognition of specific er a implication. repeal by no

there could be will be error, judgment

Finding it is ordered.

affirmed and so Mc- J.,

BRICE, SADLER C.

GHEE, JJ., concur. participate. J., did

COMPTON,

George Shipley, Alamogordo, A. appellant.

Roy Mobley, Alamogordo, T. Paulantis, Albuquerque, T. James appellee. P.2d 337 SMITH. v. SEELE COMPTON, Justice. parties This contest. The is an election office of opposing candidates for the

Supreme Mexico. of New Court Peace, Lincoln Precinct 16, 1947. Dec. Mexico, County, General Elec- New at the 5, 1946. Contestant November tion held on Democratic the nominee ticket the nominee and contestee was on Re- returns, certified publican ticket. officials, show that contest- by the election that 198 votes and contestee received ant 201 votes. The Canvass- its certificate ing certifying Board issued been elected contestee had office. validity challenged alleged He that he received by contestant. He also legal cast. majority of Wingfield “Democratic—I. N. irregularities of on account asserted “Counting Judges *2 election, conducting the in election officials “Republican Mayer Miss —Paul results, change a in the thereby causing Emma Chase nullity that it should be a Morgan election was “Democratic—D. B. majori- “Poll that contestant a Clerks

declared “Republican votes, consequently, entitled ty legal Bertha Kirk the of —Mrs. Eric C. Bruce to the “Democratic—Mr. office. “Counting Clerks answer, Contestee, by admitted that he “Republican Kiel Bonnell —Mrs. a certificate of holder of was the May “Democratic—-Mrs. Lillie Ward Canvassing Board, County cer- from the duly counting “6. the the elected When tifying that he was Justice complete clerks had that contestant made a full and He denied of Peace. they of all of the local ballots majority legal votes. He found received a of there- majority from that of ballots a the said pleaded affirmatively then that all ballots contestant, George of the Peace cast H. cast at Justice law, Seele. required preserved, were as a contestant.

were available for counting judges “7. After the and clerks sufficiency challenged also complete had made a full and count of all conclusion of of contest. At the the notice they ballots the local therefrom findings hearing, court its number of ballots cast for each of unnecessary fact, except those we deem for the the candidates office decision, follows: a of the Precinct the Peace No. were as follows: contestant, Seele, George “3. The H. Party Democratic of the

was the candidate contestant, George Seele, “For the H. contestee, Peace, of the of the Smith, was the candidate contestee, “For the Herbert Smith 197 Party Republican said office. votes. following persons served “4. The counting judges “10. While the of the election: judges and clerks engaged in clerks the re- ballots, one mainder of the state of the Judges “Election Halladay, judges R. B. who was “Republican Halladay and election B. —R. judge clerk, acting or Dewey a Gann counting judges “12. The en- Superintendent or director the role of so, cast for each authority tered the of votes polls, assuming to do Peace, as ballots possession candidates of the local took of all Halladay, upon separate- B. the said R. directed lying loose unbound thereto, certificates Books and table, removed, the custo- such from and and made return thereof counting judges dy and control Clerk, understanding and belief with the separate clerks, table carried same Halladay B. was authorized that the said R. being from that used some distance direct action. there counting judges and placed of Dew- in the hands the said ballots “13. The to be ey the said ballots and caused requested to a recount of were not make him, named by a committee recounted R. the local ballots the said composed of the Halladay, and said R. B. person present Dewey Gann, officials: following election room, and the Bruce, Kirk, Mr. Eric Bertha Mrs. *3 requested approve to counting judges or none of whom were by the of recount made election committee clerks. judges by R. clerks, appointed the said the recount of At the conclusion of “11. Halladay. B. R. ballots the said B. the local Upon recount as “16. basis of as fol- results thereof announced by judges election made the committee of lows : Plalladay, by R. B. clerks as announced Seele, contestant, George H. “For the upon and not ballots count of the said 198 votes clerks, counting judges and by made contestee, Smith, Smith, certified contestee, Herbert was “For the having majority the votes votes. cast; upon certificate basis Halladay thereupon “The R. di- said County the Board of Canvassers issued rected clerks to en- Smith, the contestee Herbert a Certificate of votes cast for ter the totals November, of Election on 11th the said. Precinct No. the Peace of recount, upon “19. There is no error evidence thereto, Books and the certificates as the irregularity in or the count of the ballots the votes cast for correct totals of each the Peace the counting the candidates the said judges office. and clerks.” And concluded as law: then

“1. was of local ballots count full, judges clerks, was

complete provided manner and made in the

by law. er- irregularities

“3. There no was

rors of the local which

required ballots, of the said a recount necessary. such recount was

“6. The of local ballots

committee of election law, nullity,

was in violation of

should not have been returned to the clerk

of Lincoln official as the count of

the said ballots. majority

“8. The received a contestant cast for of the Peace County,

of Precinct' Lincoln New

Mexico, general at held in and precinct day

for the said 5th of No- on the 1946,and

vember, is entitled said of-

fice and enter the duties thereof provided the manner

the time

law, elected, which he for the term to power privileges,

with all of the emolu- belonging thereto.”

ments assigns as Findings error *4 6, 11, 10, 12, numbered 16 Fact and 7, 9, 1, 3, 6, 8, 9, and Conclusions which 7, argued by him presented

are and under points.

four map, Exhibit following

The the same photostat facsimile of the

being original election,

tally graphically used at sheet explains

portrays and the evidence com-

plained of: room and for inquiry election if all ballots or error irregularities

Mere counted, in the conduct election as officials of the Peace had Justice certifying, not counting and which vote do was close. He was assured results, counting invalidate an change judges will not all ballots and clerks that election. being correctly counted and there mistake; be whereupon could he following To the election conduct examination of the ballots for candi- state judges: officials Election were selected: and there dates three or four ballots found Re- Sr., Dewey Halladay R. B. Peace and Constable Democrat; Wingfield, publicans, I. and N. counting which had The been counted. Bertha clerks) Mrs. : (poll election clerks judges continued until all ballots were Bruce, Kirk, Demo- Republican C. and Eric counted, Halladay, including those Mayer crat; counting judges: Paul results, by and declared the extending D. Mor- Chase, Republicans, B. Emma sheets; each candidate on Democrat; counting Mrs. gan, clerks: Smith, receiving 39 and Mrs. Bonnell, Republican Lillie Kiel George receiving H. Seele re- May Ward, judg- The election Democrat. spectively. The and clerks duty :00 their at 9 es commenced Plalladay and other informed election of- m., p. m., 6:00 or short- a. and concluded at had received 197 ficials contestee ly judges thereafter. The counting and contestant had received 201 votes. a, m., duty 11:00 clerks commenced their counting judge, Mayer, Paul relying session remained until continuous extended, upon the results thus made and counted and results certi- all ballots were (in blank) signed the certificate of return intermissions, fied, except com- for short completed counting judges when p. 8:30 m. The pleting their about duties completed clerks their ballots were state candidates. room, sepa- first delivered from the Peace and rated those proceeded counting judges then with ballots) (known local from Constable offices, their count for state of ballots candidates, counting for state first the whereupon those Halladay again returned of the Peace and Con- room that the election stated stable, ballots, close, continuing state this then them. too he wanted to count throughout day. appointed committee, When the last method He than counted, being ballots were make R. entered the judge, recount.

4S9 “Q. to de- prior That time Hal- In examination of record was Mr. our supported laday another judgment if carried them to table and had termine testimony Em- evidence, A. them recounted? Yes. substantial Chase, B. Mor- Lilly May D. ma Ward “Q. you participate Did in this recount? wit- gan, was considered that of with A. No. nesses. “Q. you Do recall whether or not that Republic- Chase, Emma witness by any recount was made counting judge, part, an testified: I and clerks? don’t believe A. so. you local bal- “Q. with What did do “Q. you Do recall re- who just A. them when lots? We had finished recall, count? A. As I Mr. it was they in, officialscame took Halladay. Mrs. Kirk I and Mr. believe Mr. them and recounted them. Bruce was there. anyone, “Q. Halladay, Did re- Mr. or “Q. purported After this recount was quest you to recount them? A. you completed asked were whether the “Q. was local bal- What done with the totals satisfactory you? were A. We lots, they A. placed? where were Mrs. they were rather told had counted them off, calling pick Ward them she would they three times correct. up off, Halladay picked it one call Mr. “Q. you you Do recall who that? told it from table. Halladay. A. Mr. “Q. You nothing heard about their “Q. Halladay give you any Mr. in- Did being irregularity in the count which structions as to the totals? A. He said you just had made ? A. No. our totals were to be struck out and theirs “Q. you Do you recall or not whether put they in because were correct. completed counting all the be- “Q. you your put Where had totals? A. Halladay picked up Mr. fore them and car- just tally put We On the sheet. the other place? ried them to another Yes, A. it, ours.) (Emphasis one over with it.” he I complained time came in knew he first Ward, May Lillie witness Demo- because some of the local ones were mixed counting clerk, part: testified cratic with state ballots. We hadn’t finished. found some He local ballots in the state “Q. you After count of (Emphasis ballots.” ours.) ballots, among the state those ballots found “Q. you Did these ballots he you do recall what were for the among Yes, the state ballots? A. two candidates Peace? through carefully. very we went them The total? A. utes, Yes, you find which reacls: “When the count many votes did

“Q. how completed en- many of votes has Smith and how had been for Mr. cast Book, tered elec- then all 201 for Mr. Seele A. Mr. Seele? *6 (being judges tion officials and clerks 198 for Smith. Mr. election, counting judges and and also about the count “Q. speaking I am clerks, counting any) sign' if the cer- shall clerks. A. 201 by counting judges and you tificate Book on the back cover the Poll and also the on the cover certificate back 197? A. “Q. the Smith received Mr. of the Tally Book. all certificates When Yes, sir. signed, judges are mail of election shall do, any- if Fe, “Q. Secretary What did Mr. to the at one State Santa regard having recount thing, 'copy with a of all Poll of all copy Books and one appoint Books, he would a A. He copies made? said be other shall County required committee. delivered to the Clerk in' Instructions numbered 24 25.” the com- “Q. members of Who were the Dewey Act, Mr.* Bruce mittee? A. B(3) Mr. under subsection And Kirk.” page judges and Mrs. which reads: “All election, counting clerks and also all testimony given the wit- by was Similar judges any, sign if must Morgan. The evidence un- is D. ness printed on certificate the back cover of this per- by recount was made disputed that the Tally Book.” counting judges and than clerks. sons other authority As an additional for this con- our determination is question for tention, provi- he our attention to calls count, by offi- election whether required signed sions the certificate judges regular counting cials, than all appearing page election officials clerks, changing the results counting Act, which : 235 of reads was valid. “We, undersigned, being all of the pre- that contended contestee all It officials the election on held officials, designated as re- whether cinct the-day -, in of-A.D. Precinct 19— counting judges and clerks are ceiving Number-, Number-, Election District duty law tallying, charged with of-, Mexico, hereby New do This certifying results. certify as follows: provisions under of .subsec- contention used, “(1) voters) That the ballots (Instructions Chap- making in A(20) tion respec- New Mexico count of the votes Stat- cast ter Laws of pra, out, specifically provides pre- in tive set those candidates hereinafter Number-inclusive, ballots Number 1 to cincts where Poll accompanying appointed all as shown have been “only such Book judges our certificate thereon. shall count clerks tally the cast for each ballots and the votes “(2) correctly That counted and tal- we candidate, ‘Tally and enter the same in the lied legally the votes cast ” Book.’ candidates, respective and that conclude, We therefore result of such is as follows: count and ‡» * * judges as made nullity. was a an to the construction these As aid further provisions, have consider that all bal- only we Sec- contends 56-317, Statutes, yet lots court tion are available and that New Mexico power Comp., forms has inherent to make recount. Pro- provided separate which of oath to and cedure for to the be subscribed unknown law; clerks and As common hence we must look clerks. to the statute, any, 113, supra, authority. 1, Chap. it if We Section amended *7 provided officials, authority is in- none that all election of no and been know has where, cited under subscribing stead an as thereto- circumstances of to oath upon shown, required, power. court sign possesses fore the certificate The shall such burden, tally books, by upon poll books, statute, party back of is and as- serting right. doing, so election officials shall this Contestant not seek such did it be deemed have taken and subscribed incumbent was not a discharge C.J.S., to an this they oath that will and have him assume burden. 29 289, 291, Elections, (a) respective (b), discharged the of their duties §§ faithfully impartially. office finally contends that the facts grounds are insufficient alleged, as It evident from a consideration of is these it is provisions, offi- an contest. But contestant’s group that each of election merely majority, they adversely affected cials certifies that have and claimed discharge respective of their of election officials that affords will the duties conduct faithfully 7, impartially. art. Constitution ground. These Section office this given provisions cannot the construc- of New Mexico. contended.

tion as assignments all We have considered in find merit them. From a no A(19). (“Officials shall error Subsection who case, we conclude tally ballots”) Chapter full consideration su- plainly the Peace discloses that were tallied substan- supported by that judgment is superim- were so the results the recount rule following the evidence, tial already posed that sheet over the announced, dis- totals not be it will frequently regular entered the' offi- there turbed. interim tallies then cials affirmed, it is judgment The will be agree changes additional with such so ordered. apparent glance. signifi- that a It is are judge not carry cant that trial for- did LUJAN, J., concurs. finding into his ward a statement made tally that during progress of trial BRICE, participate. J., did not C. changes. sheets no showed concurring). SADLER, (specially that Justice trial court found result the count made court de- by the trial finding made One cast in the race all Finding No. It is special comment. mands precinct Peace in the of the involved result of Justice “15. Prior to the reads: produced votes the result of 201 for con- recount, the so-called entries testant, contestee, Seele, votes for and 197 regular officials There substantial evi- Smith. counted by them of the tally made finding fully support dence to and it this in 19.” Peace Precinct of the supports judgment rendered favor of finding the could making In Court this appellee the contestant who is the here. regular that the count- not have intended Const, concur in art. 5. I an order of § carry forward on each ing did officials affirmance. used tally sheets the totals of two of the on each since the votes tallied McGHEE, (specially concurring). below in evidence and are cer- sheets alleged, among contestant exhibits and up original us tified things, majority he received them discloses on each sheet look at mere justice votes cast for the office of the the total vote there tallied Code, peace. 56-606, provides Section Peace. alleged fact material the notice *8 Furthermore, and notwithstanding state- not specifically denied contest judge in by the trial ment course days the answer within 20 after service sheets change, trial that showed no the notice of be contest shall taken and copy photostatic of the sheet which considered as The answer true. of the larger number up contestee as matters of to the fact set

¿93 general in the contest notice of

denial. of fact This admitted all matters contest and an-

stated in the notice of

swer not thereafter amended. Bull could Southwick, 321; Pradt, Vigil 2 v.

v. N.M. 161, 795; Lucero, Garcia v. N.M. P. 1178; Beals, Wood v. N.M. 166 P. began 354. The trial

29 N.M. 218 P. amendment the an-

after time for expired. my opinion In mat-

swer this case. set out herein settle

ters judg-

I affirmance concur

ment.

188 P.2d 343 MEXICO CONSOLIDAT NEW

MEDINA v.

ED MIN. CO. et al. 5050.

Supreme of New Mexico. Court

Dec.