Hewitt & Hudspeth, for appellants. By-13. MANDAMUS (8 74*)-ELECTIONS-POWER OF ron Sherry, for appellees. OFFICERS OVER BALLOTS.

PARKER, J. It appears that a suit was brought to foreclose a materialman's lien upon a mining claim and decree of foreclosure was awarded. The appellants, owners of the property, were not served with process of any kind. Upon a notice of a proposed sale under the decree of foreclosure appearing in the local newspaper, the appellants brought an action to enjoin the sale. The court below refused the injunction and dismissed the complaint, from which judgment appellants appeal.

The foreclosure proceeding plainly violated the "due process of law" clause of the fourteenth amendment of the Constitution of the United States. The essential elements of due process of law, as applied to matters of this kind, are notice and opportunity to be heard. Simon v. Craft, 182 U. S. 427, 436, 21 Sup. Ct. 836, 45 L. Ed. 1165. The judgment of foreclosure was therefore absolutely void as against appellants, the owners of the property.

2. Injunction was the proper remedy of appellants, and should have been awarded against the sale. Mining & Smelting Co. v. Finch, 6 Colo. 214; 30 Cent. Dig. Judgment, § 793; 23 Cyc. 993; Rener v. Mackey, (C. O.) 35 Fed. 86.

For the reasons stated, the judgment of the court below will be reversed, and the cause remanded, with instructions to reinstate the complaint and award permanent injunction against the sale, and it is so ordered.

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.

[Ed. Note.-For other cases, see Mandanus, Cent. Dig. §§ 150-157; Dec. Dig. § 74.*] 4. MANDAMUS_(§ 74*)-ELECTIONS-Duties or OFFICERS EFFECT OF SINE DIE ADJOURN MENT.

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 func ti officio, but are still subject to mandamus requiring them to reassemble and count such omitted ballots.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. 88 150-157; Dec. Dig. § 74.*] 5. MANDAMUS (§ 12*)-NATURE OF ACT COMMANDED-SCOPE OF REMEDY.

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. Cent. Dig. §§ 39-42; Dec. Dig. § 12.*] [Ed. Note.-For other cases, see Mandamus,

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Mandamus by the Territory, on relation of Felix H. Lester, against A. W. Sudith and others, Judges and Clerks of Election, and against N. E. Stevens and others, Judges and Clerks of Election. Peremptory writs were allowed, and certain respondents appeal. Reversed and remanded.

The relator Felix H. Lester was Democratic candidate for the office of mayor of the city of Albuquerque at an election held

POPE, C. J., and ABBOTT, WRIGHT, Mc- April 5, 1910. He prayed writs of manda

FIE, and MECHEM, JJ., concur.

(15 N. M. 728)

mus against the respondents who were judges and clerks of election in the Second and Third wards of the city of Albuquerque, directing them to reconvene as such election

TERRITORY ex rel. LESTER v. SUDITH boards and in the Second ward count two

et al. (No. 1,339.)

SAME v. STEVENS et al.

(No. 1,340.)

(Supreme Court of New Mexico. Sept. 1, 1910.)

(Syllabus by the Court.)

1. QUO WARRANTO (§ 3*)-GROUNDS-FAILURE OF ELECTION OFFICERS TO COUNT BALLOTS. Where judges in a municipal election show in making their return under Comp. Laws 1897, §§ 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.

[Ed. Note. For other cases. see Quo Warranto, Cent. Dig. § 4: Dec. Dig. § 3.*] 2. MANDAMUS (§ 74*) - PoWER OF OFFICERS OVER BALLOTS MINISTERIAL ACTS.

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 Comp. Laws 1897. §§ 1665, 1668, becomes exhausted, and thereafter their powers as to such ballots become purely ministerial.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 150-157; Dec. Dig. § 74.*]

ballots which he alleged they had failed to count, and in the Third ward seven ballots which he alleged they had failed to count. He set up in his information that the re spondents had refused to count said ballots; that the returns of the respondents did not Correctly state the result of the election; that if said returns had been correctly and properly certified they would have changed the result of the election. In case No. 1,339 two of the judges and one of the clerks filed a verified answer admitting all the allegations of the writ except that they did not certainly know for whom one of the ballots not counted was cast. The other clerk did not appear, and E. B. Cristy, one of the judges, is the only appellant. He demurred, and, his demurrer having been over ruled, answered, alleging: First, that the court had no jurisdiction of the subject-matter or of the parties for the reason that, having made and certified the return of said election and filed same with the city clerk as

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

required by law and adjourned sine die, [ been successfully invoked." As applied to they became functus officio; second, that the relator had an adequate remedy at law by quo warranto; third, that said judges and clerks performed the duties of their office as provided by law; fourth, denied that there were two ballots cast for the Democratic candidate for mayor which were not counted for him, but, on the contrary, stated that there were two ballots not counted, one of said ballots being for the Democratic candidate and one being for the Republican candidate for mayor; fifth, that the ballots not counted were by agreement of said judges and clerks decided by them to be invalid and not entitled to be counted in said election; sixth, he denied all of the other material allegations of said writ. In case No. 1,340, G. H. Ramsey and E. H. Dunbar, and Harry Kelley, one of the clerks, filed a verified answer to the writ admitting all its allegations. N. E. Stevens, the other judge, filed an affidavit in support of the writ and afterwards filed a demurrer to the application on the ground that the court had no jurisdiction and that the application and alternative writ did not state facts sufficient to state a cause of action. His demurrer being overruled, he did not further answer. J. P. Hawley, the remaining clerk, filed an answer practically in the same form as appellant's answer in the other case, adding on information and belief that the relator's name appeared on no Socialist ticket for mayor, but alleging that seven Socialist ballots were cast and counted but not credited to any one for the office of mayor be cause all the respondents agreed that the said ballots were illegal for the reason that the ticket had not been filed with the pro-. bate clerk 10 days before the election. He then denied generally every other allegation of the writ. In each case the relator filed a motion for judgment on the pleadings based on the ground that the pleadings affirmatively showed that the respondents had not performed the duties imposed by law. The court sustained said motions, peremptory writs were allowed, and appeals taken in case No. 1,339 by E. B. Cristy, and in case No. 1,340 by N. E. Stevens and J. P. Hawley. The remaining facts appear in the opinion. Mann & Venable, for appellants. Summers Burkhart, for appellee.

POPE, C. J. (after stating the facts as above). The present case involves the efficacy of the writ of mandamus to reach the conditions complained of. The utility of this writ was considered by this court in Delgado v. Chavez, 5 N. M. 646, 648, 25 Pac. 948, where, in an opinion written by Mr. Justice Freeman, the ends which the writ has accomplished were very lucidly exemplified, and it was remarked that "it would be a vain and useless exhibition of research to undertake to point out the almost in

matters of elections, this writ has been found to be of special efficacy. The adequacy and especially the promptness of the relief afforded by it has made it a favorite and valuable method of redress for the omission or violation of legal duty by election officers, and these qualities have led the courts to deal with the writ liberally in the interest of honest elections and a fair count. While so treating the writ, however, in this class of cases, it has not been forgotten that its use is limited by well-settled principles, among others the axiom that the writ will not be allowed to control a discretion; that, while it will enforce, it will not create a duty; and that it will not be granted where it is manifestly beyond the power of the respondent to perform the duties enjoined. Bearing in mind the uses and the limitations of the writ, we are called upon to determine whether in the present instance, its issuance was justified. To determine this we must first ascertain what were the duties of the territorial judges of election. These duties of course flow solely from the provisions of statute. It is provided (Comp. Laws 1897, § 1687) that “the judges shall close the elec tion at six o'clock in the afternoon and immediately thereafter shall open the ballot boxes and publicly count the votes cast for each candidate, certifying the pollbooks as provided by law." By Comp. Laws 1897, § 1689, such certificate "shall contain the number of votes cast for each candidate, setting forth the same in writing and in figures, without their being any alteration or change." Section 2447 provides: "The returns of all municipal elections shall be made to the clerk or recorder of the corporation, and shall be opened by him on the third day after election. He shall call to his assistance the mayor of the corporation, or if the mayor shall have been a candidate at such election, then any justice of the peace of the county, and shall, in his presence, make out an abstract and ascertain the candidates elected in all respects as required by law for the canvass of the returns of county elections, and shall in like manner make out a certificate as to each candidate so elected, and cause the same to be delivered to him or be left at his place of abode." It is clear that under the foregoing it was the duty of the judges, among other things not here material, (a) to count the votes cast for each candidate, and (b) to set forth the number of votes cast for each candidate in writing and in figures in a return to the city clerk.

It appears from the record in this case that the judges counted the votes and reported, as to the ward involved in case 1,339, 537 votes cast, and reported as to the ward involved in case 1,340 that seven Socialist tickets had been cast. It affirmatively appeared from the return in the first case, however, that while 537 votes were cast only 535

It is difficult to see how the remedy of quo warranto-even ignoring the fact that it is in this territory a writ not of right but issuable only by consent of the Attorney General-could afford an adequate substitute for the writ here sought. The specific remedy here sought was to secure a declaration upon the face of the returns as to the contents a return, and having adjourned sine die. of certain ballots in order that the election of relator might prima facie appear and he be thus awarded a certificate of election.

and then adjourn? Would it be contended that it could not reassemble and fully perform its duty? We think not. Neither do we deem the adjournment of the respondent boards as controlling, but they are subject to the mandate of the court to reassemble and complete their legal duties. True this court, in the illustration just given, is a permanent body; whereas, a board of election judges is temporary-and this circumstance is mentioned in some of the authorities as controlling the right to reassemble, as for instance where one or more of the election board are county officials. We fail, however, to rec

duties; or, as said in one of the cases cited | ted to include certain counties in any district by appellant, the court "cannot animate its dead body with the breath of life." The defect in the last argument lies in a failure to recognize that official boards, differing from natural persons, cannot commit suicide. Election judges created for a specific purpose and to perform certain public duties have no definite tenure of office. Their life is until their duty is performed, or until the performance of that duty is rendered impossible by intervening events. But until such duty is performed or such events intervene the board's existence continues, and this even though through inadvertence or purpose it may have adjourned sine die. The perform-ognize the distinction. A temporary funcance of a public duty by such a board cannot be avoided or the public interests defeated by a voluntary attempt to terminate its own life. Even where the board says its work is over the law keeps it in existence to complete that work if unfinished. For example, had the board in the present case adjourned sine die without counting the votes at all, would it have been functus officio so that it could not be reassembled for that purpose? Or had it counted the votes but adjourned without day, before making any return to the city clerk, would the whole election be defeated upon the plea that the be called together to make the return? These

board has become dead and therefore cannot

observations show that the power to reassemble the board depends, not upon whether it has declared itself adjourned, but upon whether it has complied with its statutory duty. If the latter has been accomplished, the board dies by force of that very fact, whether it has declared itself adjourned or not; if, on the other hand, it has not been accomplished, no resolution to adjourn sine die can render the board functus officio. If therefore the continuance of the board's existence depends upon whether it has completed its work, upon what principle can it be held that the existence has expired when the board (as shown by its own return) still has unperformed the statutory duty to declare the contents of ballots sufficient in number to turn the election?

The conclusion is, we believe, inevitable that so long as the board has a specific statutory duty imposed upon it still unperformed it continues to exist and is subject to the call of the law for a completion of that duty. An illustration will be found in certain duties imposed upon this court. It has been the practice of Congress in creating additional associate justices from time to time to make it the duty of this court to redistrict the territory, for judicial purposes, and to assign the judges to the several districts. Such duty when performed has been considered as exhausting the power of the court as conferred by the several acts. But suppose the court failed, in meeting for this purpose, to assign one of the judges, or omit

tion imposed upon a board otherwise perma-
nent does not make it otherwise than tem-
porary as to that function. These views con-
stitute a sufficient answer to several of the
further arguments for appellant. It is said
that by adjournment these judges have be-
come mere individuals and not subject to a
writ. But if, as we have seen, their board
is yet existent, they are still officials sub-
It is also said that man-
ject to mandate.
damus will not lie to create a duty, but sim
ply to enforce performance of it, and, argu-
ing that these judges were under no obliga-
it, it is contended that the writ of mandamus
tion after making their return to amplify
might not be invoked to require them to do

what they were not obliged to do without it.
But if, as we have seen, there was a clear
omission remaining to be remedied, and if
as we have seen, the judges still remain offi-
cers for that purpose, it follows that there
was an obligation upon them to remedy the
return, if still in their possession, independ-
ent of any order to that effect. Indeed, in
People v. Nordheim, 99 Ill. 553, it was held
that the city clerk who had possession of
such returns would be required by manda-
mus to permit such judges to amend them, so
as to comply fully with the law. By this
last we do not desire to be considered as
holding that election judges should, after
making their returns, be permitted at their
discretion to withdraw them and make new
returns. We can see that in the case of a
close election such a course might lead to
grave abuses. It will be sufficient to pass
upon cases differing from the present one as
they reach us, and it will be assumed that
right-minded officials will, as in the present
case, require an order of court before per-
mitting a change in returns already made.
But the case now before us is one in which
no such danger lurks. The return itself
shows that the contents of certain ballots
have not been extended, and the request is
simply that this omission shall be remedied
by a supplemental return. To do this will
import no new ballots into the return. It
will simply, as the statute requires, declare
the contents of those already there, and thus
give relator, if his contention of fact be cor-
rect, the prima facie showing of election nec-

essary to a certificate to that effect. This we think he was, so far as the present objection is concerned, entitled to.

writ below was properly granted, the remaining assignment of error impresses us as more serious. It proceeds upon the contention that the writ should not have been granted because it is manifestly beyond the power of the respondent to obey it. The information upon which the writ issued shows that the ballots with the imperfect return complained over "were deposited in the ballot box with the ballots cast at said election in said ward, and the said box locked and sealed up and returned to the clerk of the city of Albuquerque, and that the said judges have had no opportunity to inspect or

by appellants that this averment admits the relator out of court since it discloses the returns, which it is sought to correct, to be in the hands of a third party not a party to the suit. It is argued that there is no assurance that the writ, if granted, can be obeyed, and that courts will not grant the writ in doubtful cases where a compliance with it depends upon the caprices of a third person not before the court. This argument impresses us as sound and its conclusion unavoidable. It is fundamental that to authorize the writ it must appear that, if granted, it will be effectual as a remedy, and that it is within the power of the defendant, as well as his duty, to do the act in question. 2 Spelling on Injunction and Other Extraor dinary Remedies, §§ 1369, 1377.

This position we consider sustained not only by principle, but by precedent. The general doctrine is declared in 15 Cyc. 383, 384, as follows: "But, on the other hand, it has been repeatedly decided, and seems to be the better doctrine, that after canvassers have made one canvass, declared the result, and adjourned, they may be compelled by mandamus to reassemble and make a correct canvass of all the returns, where it appears that upon the first canvass they neglected or refused fully to perform their duty. | correct the same for that reason." It is said It is settled by abundant authority that where the board refused to canvass any of the votes it may be compelled so to do by mandamus, even though it has adjourned sine die, and there can be no difference in principle between a refusal to canvass any and a refusal to canvass a part only of the returns." The text is sustained by numerous citations. Fair samples of the expressions in these supporting authorities are found in State ex rel. Rice v. County Judge, 7 Iowa, 201, where it is said: "The next subject of examination is the answer that the duty had already been performed. Inasmuch as the canvassers have rejected the returns from three of the townships, which they should have counted, it is legally true that the duty has not been discharged; and when the writ now commands it is not, in a proper Such power does not appear from this reclegal sense, to recanvass, but to canvass the ord, but the very contrary. If, as relator alreturns of that election. It is to do that leges, the records were, when the informawhich was before their duty, but which they tion was filed, so far beyond the power of omitted. What has been done is as if it the respondents that "they have had no ophad not been done, and the judge is now portunity to inspect or correct the same," commanded to proceed as if no former steps how will the granting of a writ give them had been taken." And in Lewis v. Marshall that opportunity? Mandamus does not conCounty Com'rs, 16 Kan. 102, 22 Am. Rep. fer power or create opportunity. It enforces 275, where, speaking through Mr. Justice the exercise of an existing power, the imBrewer, the court says: “It is the duty of provement of opportunity already present. the canvassers to canvass all the returns, This view of the matter constrains us to conand they as truly fail to discharge this duty clude that the writ was improvidently grantby canvassing only a part and refusing to ed, at least in so far as it directs returns not canvass the others as by refusing to canvass within the power of respondents to be amany." While it is true that upon examina-plified by them. The cause must, accordingtion some of the authorities cited in support ly, be remanded. Whether by amendment in of the text in 15 Cyc. 384, supra, are found this suit or by further proceedings otherto be qualified and in some instances are wise the defect now held to exist can be reminfluenced by local statute, we find that edied so as to bring the returns back into the many of them give ample support for the power of the respondents in order that a writ position here assumed. It does not seem may operate upon them we need not here necessary to consider or quote these in de determine or intimate. In order, however, tail. We do not feel inclined, in deference that the trial court may be free to deal with to what we deem ill-advised precedents, the matter unhampered by explicit direc which may be found to the contrary, to ab- tions in the mandate, we reverse and redicate for the courts a power so conducive to mand the cause for further proceedings not the purity of elections. Where, as here, inconsistent with this opinion, and it is so that power is sustained by ancient and emi- ordered. nent authority, followed by numerous modern courts, judicial retreat is no less to be deprecated than on the other hand, would be judicial encroachment.

McFIE and WRIGHT, JJ., concur. PARKER and MECHEM, JJ., concur in the re versal. ABBOTT, J., having tried the case,

While upon all the foregoing grounds the did not participate.