Territory of New Mexico ex rel. Lester v. Suddith

Citations

• 15 N.M. 728

Syllabus

<p>SYLLABUS' (BY THU COURT.)</p> <p>1. Where judges in a municipal election show in making their return under C. L., Secs. 1687,1689, 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.</p> <p>2. After ballots have been tendered! by the voter and deposited in the ballot box the quasi judicial function to reject ballots given election judges' by C. L., Secs: 1665, 1668, becomes exhausted and thereafter their powers1 as to such ballots become purely ministerial.</p> <p>3. Such ministerial duties include the obligations to count the ballots for the candidates whose names appear thereon and to make return thereof to the city clerk.</p> <p>4. By making a partial return which, while disclosing the receiving of certain ballots, affirmatively shows that these have not been counted for any candidate and' by thereupon adjourning sine die, election judges do not become functi officio but are still subject to mandamus requiring them to reassemble and count such omitted ballots.</p> <p>5. The writ of mandamus will not require the performance of an act beyond the power of the respondent or dependent upon the will of a third person not a party to the suit.</p>