It is elementary that for mandamus to lie there must be a clear legal right on one side coupled with a clear legal duty on the other. Mandamus lies to enforce the performance of an existing duty and not to create a new one, citing Ex parte Rowland,104 U.S. 604, 26 L. Ed. 861.
The legislature in enacting the primary law attempted to make it whole by assimilating the general election law by reference. The result is a confusion of language relating to canvassing a primary election, that to say the least does not create a clear legal right on one side or a clear legal obligation on the other.
In 1935 prior to the enactment of the primary law, the legislature provided that the canvassing board could consider the duplicate original registration certificate on file with the Secretary of State in determining whether a sufficient number of unregistered votes had been cast to change the results of an election and if so the board should certify the matter to the District Courts. In 1939 subsequent to the enactment of the primary law this was changed and it was provided that the board could consider the "certified index of registered electors". 56-349, Subsec. 6, N.M. Statutes Annotated 1941 Compilation. At the same time and as part of the same chapter it was provided that the index shall include an alphabetical list of the names and addresses of the registered voters. In this section providing what the index to be prepared by the county clerk should contain, there was no mention of the fact that it should contain the party affiliation of the voter. In 1941 the legislature again reiterated that the index prepared by the county clerk should include an alphabetical list of the names and addresses of the registered voters.
It is conceded that without this list containing the party affiliation the canvassing board is powerless to perform the acts which this suit asks it be ordered to perform. The majority of the Court has stated that the legislature must have intended the party affiliation be a part of this index even though the legislature had two different opportunities to say so and did not. The language of the statute is clear and explicit; if the legislature by over-sight or neglect failed to put in sufficient provisions *Page 433 to make it workable then it is not the province of this Court to provide that which it believes the legislature forgot and thereby assume the duties of the legislative branch of the Government.
While there is New Mexico authority for the majority opinion, we believe it is a dangerous practice to take the clear and unambiguous language of the legislature and add thereto or subtract therefrom to accomplish that which the Court believes the legislature intended. This not only leads to confusion in the District Courts and to the lawyers in attempting to advise their clients, but could easily result in the creating of legislation by the Court entirely contrary to the intent of the legislature. It is certain that the legislature intended that election officials at a primary election should refuse a Democratic ballot to a registered Republican and visa-versa. And, it is certainly highly probable that the legislature did not intend that the Governor, the Chief Justice of the Supreme Court and the Secretary of State should scrutinize and duplicate the work of election officials in this respect.
While the informant has requested only five counties be canvassed for unregistered voters, it is not to be presumed that the state board would be precluded from canvassing any other counties where it is indicated by the returns that unqualified voters have voted in the Democratic primary, but on the contrary it would be their duty to make such additional canvass.