STATE EX REL. CHAVEZ V. EVANS, 1968-NMSC-167,
79 N.M. 578, 446 P.2d 445 (S. Ct. 1968)
STATE of New Mexico ex rel. Ventura
CHAVEZ, Adelicio Moya,
Wilfredo Ernest Sedillo, William Higgs, Reies Lopez
Tijerina, Jose Alfredo Maestas, Roger Anderson
and Preston Monongye, Petitioners,
vs.
Ernestine D. EVANS, Secretary of State of the State of New
Mexico, Respondent
SUPREME COURT OF NEW MEXICO
1968-NMSC-167, 79 N.M. 578, 446 P.2d 445
ORIGINAL MANDAMUS PROCEEDING
Jonathan B. Sutin, Albuquerque, for
petitioners.
Boston E. Witt, Atty. Gen., Gary O.
O'Dowd, Donald W. Miller, Larry N. Smith, Asst. Attys. Gen., Santa Fe, for
respondent.
DAVID CHAVEZ, Jr., C.J., M. E. NOBLE, J.,
IRWIN S. MOISE, J., J. C. COMPTON, J., DAVID W. CARMODY, J., concur.
{1} Petitioners, eight in
number, seek mandamus to require respondent to certify their names to the
various county clerks for the offices to which they were nominated by the
People's Constitutional Party. The remaining candidates of that party have
already been certified, so we are concerned only with the eight.
{2} There is no question
present concerning compliance with the law in the nominating process,
timeliness of the filing of the certificates of nomination, or relative to the
sufficiency of the certificates. The initial problem is what duty devolved upon
respondent upon receipt of the certificate containing petitioners' names. The
statute (§ 3-3-2, N.M.S.A. 1953), in effect, merely provides that the secretary
of state shall certify the names, the office, and the political party of the
individuals to the county clerk of each county. Initially, it was urged that
respondent had no discretion whatsoever under the above statute, but we believe
it is now conceded by them that the issuance of the writ lies within the sound
discretion of the court and that, generally, such writs are not issued unless
some proper end is to be accomplished. Thus, if it clearly appears that any of
the candidates could not qualify for the offices which they seek, they would
not argue that the writ should be granted. In this stand, they accept the rule
as stated in Application of Lindgren, 232 N.Y. 59, 133 N.E. 353 (1921).
However, of course, petitioners argue that all of them are qualified for the
respective offices, and that therefore the writ should issue.
{3} In accordance with our
decisional law (compare, City Commission of Albuquerque v. State,
75 N.M. 438,
405 P.2d 924 (1965)), we therefore proceed to the consideration of the
qualifications of the various petitioners. Before doing so, however, we would
note that our decision in State ex rel. Shepard v. Mechem,
56 N.M. 762,
250
P.2d 897 (1952), is controlling as against respondent's contention that a
relator in a mandamus action cannot question the constitutionality of a
statute. It may be done in a proper case and we feel that it is proper here.
{4} Petitioners Ventura
Chavez and Adelicio Moya were nominated as candidates for President and Vice-President
of the United States by the party. Respondent refused to certify their names
because two of the presidential electors nominated by the party were not
qualified to act as such electors. Under our statutes, candidates for President
and Vice-President appear together on the ballot and on the voting machines,
and the voter casts his ballot
{*581} directly
for such candidates. The names of the presidential electors do not appear on
the ballot, although they are chosen by the party convention and certified to
the secretary of state who records their names (§ 3-10-1, N.M.S.A. 1953). There
is a provision for filling vacancies in the office of presidential electors
which does not specifically mention the present situation. However, it is
implicit in this instance that the selection of unqualified persons is
tantamount to failure to select, which is specifically mentioned in the statute
(see, § 3-10-4, N.M.S.A. 1953). The refusal to certify was erroneous.
Petitioners Chavez and Moya must be certified.
{5} Petitioners Sedillo and
Higgs are candidates of the aforementioned party for United States
Representative in Congress, New Mexico Districts 2 and 1.
{6} Section 3-18-3, N.M.S.A.
1953, so far as pertinent, reads:
"Each candidate for the office of representative
in Congress shall be a resident and qualified elector of the district in which
he seeks office."
{7} It is admitted that
Wilfredo Sedillo, candidate for representative in Congress from District 2,
resides and is a registered elector in District 1, and that William Higgs is
not and will not, at the time of the election, be a qualified elector within
the State of New Mexico.
{8} The petitioners argue
that art. I, § 2, clause 2, of the United States Constitution prescribes the
qualifications for representatives in Congress; that the New Mexico statute,
supra, purports to add additional qualifications for a representative in
Congress and is unconstitutional. Art. I, § 2, clause 2, reads:
"No person shall be a Representative who shall
not have attained to the age of twenty-five years, and been seven years a
citizen of the United States, and who shall not, when elected, be an inhabitant
of that state in which he shall be chosen."
{9} The constitutional
qualifications for membership in the lower house of Congress exclude all other
qualifications, and state law can neither add to nor subtract from them. In re
O'Connor, 173 Misc. 419, 17 N.Y.S.2d 758 (1940); State ex rel. Eaton v.
Schmahl, 140 Minn. 219, 167 N.W. 481 (1918); State ex rel. Chandler v. Howell,
104 Wash. 99, 175 P. 569 (1918); Ekwall v. Stadelman, 146 Or. 439, 30 P.2d 1037
(1934); Stockton v. McFarland, 56 Ariz. 138, 106 P.2d 328 (1940). The state may
provide such qualifications and restrictions as it may deem proper for offices
created by the state; but for offices created by the United States
Constitution, we must look to the creating authority for all qualifications and
restrictions.
{10} Clearly, § 3-18-3,
supra, by requiring that each candidate for representative in Congress be a
resident of and a qualified elector of the district in which he seeks office,
adds additional qualifications to becoming a candidate for that office.
Accordingly, we must hold the provisions of the Federal Constitution prevail
and that this statute unconstitutionally adds additional qualifications.
{11} Although it is admitted
that petitioner Higgs came to New Mexico only recently and for a particular
purpose, he has filed herein his affidavit wherein he states that he has all
the constitutional qualifications for the office that he seeks and "is now
an inhabitant of and residing in the State of New Mexico, and that he intends
to be an inhabitant of and reside in the State of New Mexico on November 5,
1968, and thereafter." However, the question of whether or not, under the
circumstances recited, he can be described as a "sojourner" so as to
disqualify him from holding the office, if elected, is not for us to decide. We
understand the law to be as stated in 107 A.L.R. 205, 206, that:
"Article I, § 5, of the Constitution of the
United States, relating to the powers of Congress, provides that 'each house
shall be the judge of the elections, returns, and qualifications of its own
members.'
{*582} "
It is well settled that this provision constitutes each house of Congress the
sole and exclusive judge of the election and qualifications of its own members
and deprives the courts of jurisdiction to determine those matters."
See, also, State ex rel. Wettengel v. Zimmerman, 249 Wis.
237, 24 N.W.2d 504 (1946), and Laxalt v. Cannon, 80 Nev. 588, 397 P.2d 466
(1964).
{12} It thus follows that
both petitioners, Sedillo and Higgs, should have been certified as provided in
§ 3-3-2, supra.
{13} Petitioners Tijerina and
Maestas are candidates for governor and lieutenant-governor of New Mexico. The
questions involving them are entirely distinct, so will be discussed
separately.
{14} Tijerina was not
certified because he had been convicted of a felony in the United States
District Court for the District of New Mexico. Several arguments are made as to
why the refusal to certify was contrary to law. The first of these is the
contention that the New Mexico Constitution does not prohibit one convicted of
a felony from being a candidate for governor. Petitioner relies on art. V, § 3,
urging that the qualifications therein set out are the sum and total of all of
the qualifications required of a candidate for governor. That section, insofar
as pertinent, is as follows:
"No person shall be eligible to any office
specified in section one, hereof [which includes the governor], unless he be a
citizen of the United States, at least thirty years of age, nor unless he shall
have resided continuously in New Mexico for five years next preceding his
election; * * *."
In making this argument, petitioner claims that art. VII, §
2, par. A, does not provide for any additional qualifications for the office of
governor other than those set out in art. V, § 3, supra. This latter provision
reads as follows:
"A. Every citizen of the United States who is a
legal resident of the state and is a qualified elector therein, shall be
qualified to hold any elective public office except as otherwise provided in
this Constitution."
the argument being that the clause "except as otherwise
provided" means that the constitution makers intended to have the governor
meet the qualifications in art. V, § 3, only. With this we disagree. The
constitution must be construed as a whole, and we hold that the two sections
should be read together, Trounstine v. Britt, 212 N.Y. 421, 106 N.E. 129
(1914); In re Board of Rapid Transit Com'rs, 147 N.Y. 260, 41 N.E. 575 (1895);
Williams Co. v. Superior Court etc., 97 Cal.App. 422, 275 P. 838 (1929);
thereby requiring that a person in order to hold the office of governor be a
citizen of the United States at least thirty years of age, who has been a
resident continuously for five years preceding his election, and who is a
qualified elector in New Mexico. Any other construction of the two sections
would be strained, and to follow petitioner's argument to its logical
conclusion would be to make art. V, § 3, supra, a super-qualification
provision, not contemplated by the constitution makers, which would allow an
individual to be a candidate even though such candidacy violated another
section of the constitution, such as for example, the two-consecutiveterms
provision of art. V, § 1.
{15} Having determined that
the constitution requires that one must be a qualified elector in this State to
hold the office of governor, we must look to art. VII, § 1, New Mexico
Constitution, to determine the qualifications a person must meet to be an
elector. That section, insofar as material, reads:
"Every male citizen of the United States, who is
over the age of twenty-one years, and has resided in New Mexico twelve months,
in the county ninety days, and in the precinct in which he offers to vote
thirty days, next preceding the election, except idiots, insane persons,
persons convicted of a felonious or infamous crime unless restored to political
rights, and Indians not taxed, shall be qualified {*583}
to vote at all elections for public officers. * * *"
{16} It is here asserted that
petitioner Tijerina was denied certification by respondent because he has been
convicted of a felony (forcibly assaulting, intimidating and interfering with
an officer of the Forest Service, U.S. Department of Agriculture, while said
officer was engaged in the performance of his official duties in violation of
18 U.S.C. § 111 and 18 U.S.C. § 2) in the United States District Court for the
District of New Mexico.
{17} We are then faced with
the problem of whether this conviction in the United States District Court
makes this petitioner a person "convicted of a felonious or infamous
crime" within the meaning of art. VII, § 1, New Mexico Constitution.
Although we recognize that the authorities are in no sense unanimous, we are
convinced that the vast majority of the better-reasoned opinions are to the
effect that the conviction of a felony in a foreign jurisdiction, such as the
federal court in this instance, should be considered by the courts of another
state as being the conviction of a felony within the constitutional
prohibition. State ex rel. Olson v. Langer, 65 N.Dak. 68, 256 N.W. 377 (1934);
State ex rel. Barrett v. Sartorious, 351 Mo. 1237, 175 S.W.2d 787, 149 A.L.R.
1067 (1943); and Bruno v. Murdock, 406 S.W.2d 294, 297 (Mo.1966), are
illustrative of the majority rule. This is so even in cases such as the instant
one, where, although the charge in the federal court is a felony, it is urged
that, under similar circumstances, the charge in New Mexico would be a
misdemeanor. In order to expedite, we will not here cite the many cases which
are well annotated in 175 A.L.R. 784. In this connection, we do not determine
that the federal charge would have been a misdemeanor in New Mexico, for the
very simple reason that it involved an assault upon a federal officer and it is
to be doubted if our laws contemplate such a charge.
{18} Although petitioner
cites cases from other jurisdictions holding to the contrary, it is our
considered judgment that the conviction of a felony in some other jurisdiction
has the effect of casting a shadow on the individual involved and must be
considered as within the constitutional prohibition denying the right of
suffrage and the right to hold office to such a person. Again, we rely on
annotations because of the necessity of disposing of this case with dispatch.
See, Annots., 149 A.L.R. 1075 and 71 A.L.R.2d 593.
{19} We are then brought to
the question of what effect, if any, the taking of an appeal has in the federal
case. Following petitioner's conviction and sentence in the United States
District Court, he appealed to the Tenth Circuit, and the case has not been
disposed of as yet. Here, again, the authorities seem to be somewhat divided as
to whether a conviction is to be considered as such pending final determination
by a court of last resort. Although it is not precisely in point because it
involved removal rather than a candidacy, State v. Langer, supra, holds that
the conviction in the trial court was determinative of the South Dakota
constitutional "conviction" provision. Many other cases support such
a ruling, and we agree. Annot., 71 A.L.R.2d 593 § 6. In fairness, we would
note, as urged by petitioner, that State ex rel. Heartsill v. County Election
Board, 326 P.2d 782 (Okla.1958), seems to be in variance with the view we here
take. However, the Oklahoma case is distinguishable on its facts in that the
individual involved there, although having been convicted in the federal court,
had, in effect, been acquitted by a state-court jury which refused to remove
him from office.
{20} Lastly, in connection
with this petitioner's claim, it is urged that the federal conviction is void
and therefore can be collaterally attacked in this proceeding. Even though
there seems to be authority as urged by the petitioner, we cannot but feel that
it would be incongruous for this court to even consider the question when, in
the last analysis, the decision must be that of the United States Circuit Court
or the United States Supreme Court. Our decision on this point
{*584} could have no effect on the Circuit
Court's decision, and could in no sense determine whether the conviction was or
was not valid. We decline to take any action insofar as this argument is
concerned. It therefore follows that the writ insofar as petitioner Tijerina is
concerned must be set aside as improvidently issued.
{21} In view of our
determination as to the candidate for governor, how, then, does this affect the
candidate for lieutenant-governor? Under art. V, § 1, of the State
Constitution, it is provided that the governor and lieutenant-governor are
elected jointly by casting a single vote for both offices. The People's
Constitutional Party is then in the position of having no candidate for
governor but having one who is apparently qualified as a candidate for
lieutenant-governor. The only reason for the refusal to certify the
lieutenant-governor candidate, petitioner Maestas, was because the party, after
the disqualification of Tijerina, had no candidate for governor.
{22} We believe it was the
intention of the people of the State, in amending §§ 1 and 2 of art. V, to require
that the governor and lieutenant-governor be voted on as a unit. Lacking one of
them, namely, the governor, there can be no candidate for lieutenant-governor
by himself, and mandamus does not lie to compel the certification of his name.
{23} Petitioner Preston
Monongye has been refused certification as a candidate for the office of
district attorney for the First Judicial District by the respondent for the
announced reason that he is not learned in the law as required by the New
Mexico Constitution for one to hold that office.
{24} Art. VI, § 24, reads as
follows:
"There shall be a district attorney for each
judicial district, who shall be learned in the law, and who shall have been
a resident of New Mexico for three years next prior to his election, shall be
the law officer of the state and of the counties within his district, shall be
elected for a term of four years, and shall perform such duties and receive
such salary as may be prescribed by law. * * *" (Emphasis added.)
{25} Thus we are brought
directly to the question of what is meant by "learned in the law."
Our problem is complicated by the fact that art. VI, § 8, provides, among other
things, that to be qualified to hold the office of justice of the Supreme Court
a person must be "learned in the law, and shall have been in the actual
practice of law * * * for at least three years." In art. V, § 3, it is
provided, among other things, that to be eligible to hold the office of
attorney general a person must "be a licensed attorney of the Supreme
Court of New Mexico in good standing."
{26} By affidavit the
petitioner sets forth his qualifications which do not include completion of a
law course or graduation from an approved law school. Neither does he claim
that he has been admitted or is qualified to be admitted to practice law in
this or any other state. Under these circumstances, can he be "learned in
the law"?
{27} We would answer
unhesitatingly in the negative were it not for the different qualifications
contained in our constitution, as noted above, for holding the offices of
district attorney, attorney general and justice of the Supreme Court.
{28} It would seem
self-evident that admission to practice law before the highest courts of a
state would amount to a determination, prima facie at least, that an individual
is learned in the law, and that in the absence of such admission, a person is
presumptively not learned in the law. See Opinion of the Justices, 279 Ala. 38,
181 So.2d 105 (1965); Jamieson v. Wiggin, 12 S.D. 16, 80 N.W. 137, 76
Am.St.Rep. 585; 50 A.L.R. 1156 (1899); State ex rel. Jack v. Schmahl, 125 Minn.
533, 147 N.W. 425 (1914). Compare, Heard v. Moore, 154 Tenn. 566, 290 S.W. 15,
50 A.L.R. 1152 (1926). For other cases, see Annot., 50 A.L.R. 1156. Indeed, the
decisions just cited generally hold the requirements to be that the right to
practice law in the state where the candidate seeks an office wherein being
"learned in the law" is a qualification, must have been
{*585} determined before the election by
admission to practice by the proper authority. See Jamieson v. Wiggin, supra.
Since petitioner here neither asserts his right to be admitted to practice here
or elsewhere, now or at any time in the future, we do not perceive that we need
express an opinion on the question of when, where and by whom the admission
must be performed.
{29} What about the different
language concerning the qualifications for the several offices noted above? We
are extremely conscious that in considering this question we are limited to
determining the intention of those who adopted the document, and where the
spirit and intent is clearly ascertainable as contrary to the strict letter of
the language and literal application would lead to an incongruous result, it
should not be permitted to control. See, Board of County Com'rs of Bernalillo
County v. McCulloh,
52 N.M. 210,
195 P.2d 1005 (1948); State ex rel. Ward v.
Romero,
17 N.M. 88,
125 P. 617 (1912). We have held that it is the duty of this
court to search out and declare the true meaning and intent of any
constitutional amendment adopted by the people. Flaska v. State,
51 N.M. 13,
177 P.2d 174 (1946). Certainly, our duty is no different in considering the
constitution itself. Tintic Standard Mining Co. v. Utah County, 80 Utah 491, 15
P.2d 633 (1932).
{30} When we apply these
pronouncements to our present problem we are brought directly and certainly to
the conclusion that "learned in the law" is an expression well known
and understood when the constitution was drafted. See Danforth v. Egan, 23 S.D.
43, 119 N.W. 1021, 139 Am.St.Rep. 1030, 20 Ann.Cas. 418 (1909); Jamieson v.
Wiggin, supra, decided before our constitution was adopted. As there
interpreted, the meaning was the same as "licensed attorney," the
term used in art. V, § 3, supra. Also, we note that "actual practice of
the law" is required in art. VI, § 8, supra, in connection with
qualifications for the Supreme Court. At the date of the adoption of our
constitution, Ch. 53, § 26, N.M.S.L. 1909, reading as follows, was in effect:
"No person can practice in any of the courts of
this Territory except probate courts and courts of justices of the peace, nor
can any person commence, conduct or defend any action or proceeding in any of
said courts unless he shall first have obtained a temporary license as herein
provided, or shall have been granted a certificate of admission to the bar
under the provisions of this act, and any person violating the provisions of
this section is guilty of contempt of court."
{31} It is thus manifest that
one "learned in the law" who had "been in the actual practice of
law" in this state, required that for a person to qualify for the Supreme
Court, he must have been admitted to practice just as certainly as the Attorney
General, who is specifically required to be a "licensed attorney."
How does the situation differ where no actual practice is specified in addition
to being "learned in the law," as is provided in art. VI, § 24,
supra, for the office of district attorney? It is our considered judgment that
admission to practice, or qualification to be admitted is no less a requirement
than is true of supreme court justices. The only difference is that district
attorneys need not have had the actual practice required in art. VI, § 8,
supra. To our minds, to hold that "learned in the law" and being a
"licensed attorney" are synonymous is indicated and reasonable,
whereas it is awkward and unreasonable, and was no less so when the constitution
was ratified, to conclude that one found qualified and licensed could be
attorney general, while no need is present to show admission to practice for
one to qualify for district attorney.
{32} We would add one
additional word. The duties of district attorney are found in § 17-1-11,
N.M.S.A.1953, in a form practically unchanged since adopted in 1909. See Ch.
22, § 2, N.M.S.L.1909. Appearance in courts is required in the very
{*586} first paragraph. As already noted,
admission to practice is, and since at least 1909 has been, a prerequisite to
practice in court. It follows that in the light of the statute and the
surrounding circumstances present when our constitution was adopted, an
interpretation such as that argued for by petitioner Monongye is unreasonable
and incongruous and will not be adopted by us.
{33} It follows that the
alternative writ heretofore issued in connection with petitioner Monongye
should be quashed.
{34} Petitioner Anderson was
not certified because it was claimed he was not a registered voter of the party
concerned. We find no requirement that candidates nominated by a political
party, not required to be nominated at the primary election, be registered
electors of such minority party. Sec. 3-11-11, N.M.S.A.1953, expressly provides
that the requirements of ch. 317, Laws of 1963, shall apply only to political
parties for whose candidates there were cast as many as 15% of the total votes
for governor at the preceding general election. The People's Constitutional
Party had no candidates at that election. It follows then that there is no
requirement that Roger Anderson, candidate for State Board of Education, second
judicial district, be a registered elector of said party for one year prior to
the issuance of the election proclamation by the Governor, and this petitioner
should have been certified.
{35} From what we have said,
the writ of mandamus will be made permanent as to all the petitioners, except
Reies Lopez Tijerina, Jose Alfredo Maestas, and Preston Monongye, as to whom
the alternative writ will be quashed as improvidently issued. The respondent
will be directed to forthwith certify for the People's Constitutional Party, to
the various county clerks, the following: Ventura Chavez, candidate for
President of the United States; Adelicio Moya, candidate for Vice-President of
the United States; Wilfredo Ernest Sedillo, candidate for Representative in
Congress, Second District; William Higgs, candidate for Representative in
Congress, First District; and Roger Anderson, candidate for State Board of
Education, Second Judicial District; all of which shall be done in order that
the names of the above persons shall be included on the general election ballot
and on the voting machines for the general election to be held on November 5,
1968.
{36} No motion for rehearing
will be entertained.