On Motion for Rehearing. The dissenting opinion heretofore filed by me disagreeing with the majority opinion, in part, is withdrawn and the following substituted therefor:
I do not agree that the election held in Precinct 17 (Los Alamos), Sandoval County, New Mexico, on June 8, 1948, was a nullity. The majority opinion admits that those persons who live on the 172.90 acres of former Forest Reserve lands in said precinct were or may have been qualified electors entitled to vote at said primary election. The election is declared a nullity, as to such persons, because all the polling places in said precinct were situated on the 407.39 acres of condemned land, which is said to be under the "exclusive legislation" or "exclusive jurisdiction" of the United States, and as such is deemed to be effectually "out of the State" for all election purposes.
New Mexico does have jurisdiction over said condemned land for some purposes. The State reserved some of this jurisdiction by its own acts of cession; some, on the other matters, was retroceded to the State by Acts of Congress, and it appears that the authorities agree that even after it has ceded jurisdiction the State still retains certain jurisdiction over the lands until and unless Congress acts by definitive *Page 323 legislation to prescribe for the acquired lands. If New Mexico retains any jurisdiction over this territory — and it does — then it cannot be a country "without the State." Subject to the right of the United States to exercise exclusive jurisdiction over it (which right the United States has waived by receding a part of such jurisdiction), this territory is still Precinct 17 of Sandoval County of the State of New Mexico. Collins v. Yosemite Park et al., 304 U.S. 518,58 S. Ct. 1009, 82 L. Ed. 1502.
The County Commissioners of Sandoval County fixed the polling places at sites within the confines of Precinct 17. Provisions regarding the fixing of polling places within a precinct are directory merely, and it is not the policy of the law to disfranchise and penalize electors merely because the public officials in charge have made some slight miscalculation in setting up the voting sites, if they did so, especially where this did not result in depriving a single elector of his chance to vote, and where no fraud is charged or appears. The election was held and the polling places were in the precinct where the electors offered to vote. No function or control of the government was in the least embarrassed nor was its jurisdiction impinged upon thereby.
As pointed out in the Court's opinion, the weight of authority is to the effect that those persons who reside on lands which are acquired by the United States by the "constitutional method," as were the 407.39 acres of condemned lands in Precinct 17, do not have residence within the State within the meaning of the election laws. Although criticism might be leveled at this rule on principle, it is probably too well established now for change. It may be inferred from these facts that there were illegal votes cast at said election which should not be counted or considered in the result. We are not informed how many such votes there were, and of course no one knows for which one of the candidates any one or more or how many of the ballots were cast. The stipulation does not show that the number of these votes, by residents of the condemned lands, were sufficient to change the results, or were sufficient to invalidate the election in the precinct. I think the election was valid as to the qualified electors of said Precinct 17 living on the former Forest Reserve lands.
Holding these views, I am of the opinion that further proofs should be called for or allowed to show the number of ballots cast by residents of the 407.39 acres of condemned lands, and, if need be, for whom such ballots were voted, and that proper order of direction under the writ be made then according to the facts; or that, failing such further proofs, the alternative writ should be discharged. *Page 324
Entertaining the views expressed, my dissent to the action of the majority in denying motion for rehearing is herewith noted.