Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1889-08-01

! attorney should nc ililed by an election by
the legislative council. Mr. Twitchell was
elected district attorney by said legislative
council for the district composed Of Santa
Fe, Rio Arriba and San Juan.
| Congress, having conferred such all-
. thority upon the governor and legislative
assembly acting Co-Ordinately, certainly
did not direct that they should legislate so
rs to vest the entire authority of electng
or appointing district officers in the gov
ernor alone, but left the determination OF
the manner OF SO appointing or electing
said officers to the wisdom Of the legisa.
tive assembly and the governor. They
might have provided that the governor
should appoint such officers with or with
out The consent OF the legislative council,
or that such officers shall he elected by
the legal voters of each district. The
manner OF such election or appointment
was the particular thing which by said
section 1857 was vested in the governor
and the legislative assembly to provide
The next question to be considered is
whether the Office OF district attorney is
such an office as the governor and legis-
lative assembly may provide the manner
OF filling by election or appointment, or
whether it is Il territorial office to be filled
by person nominated by the governor
and by and with the advice and consent
o! the legislative council appointed, etc.
This must be determined by the charac-
ter and extent OF the duties belonging to
the Office. A territorial officer is one the
duties and jurisdiction of which extend
over the entire territory and is not limit
ed to any particular section. The duties
and jurisdiction OF the district attorney
are limited to the counties OF Santa Fe,
Rio Arriba and San Juan.
His duties are defined in section 6 OF
the act, and are limited to representing
those three counties, and the territory OF
New Mexico in the courts within those
counties. All Of his official duties are
performed within his district, outside of
the district he has no official power or
authority. The Office OF district attorney
for the counties of Santa Fe, Rio Arriba
and San Juan might he abolished, and
the other counties in the territory would
not be in the least affected thereby.
But If this were territorial office, had
the governor the power to appoint in this
instance? The governor has power to ap-
point territorial officers, but only by and
with the advice and consent of the terri
toral council, which pre-supposes the
council to be then and there in session.
1t is not commended that Victory was ap-
pointed by the governor with the advice
and consent of the council on the con-
trary it is shown that he was appointed
by the governor alone after the council
d had ADJOURNED. 1nen, it-biea g. 3 az, appoli
It ment made during the recess of the legi
a !ative council, was the appointment
lawful one? This must be considered
8 the negative, because assumingit to be {
=, ppointmentt that the governor might ha'
:. lawfully made by and with the advice ar
. consent OF the legislative council, he cou
j not appoint during the recess OF the legi
r lative council. The organic act, sectio
g 1858, only authorizes the governor to a.
5 point during the recess of the counc
= whenever vacancy happens from resi-
2 r.ation or death. 1t is not contended tn,
} such vacancy existed at the time NJ
? Victory was appointed.
e 1t is contended by Mr.. Victory that h,
Q holding the commission of the governo
r the presumption prima facie IS that Il
: was lawfully appointed and is entitled t
the office. This suggestion would hay
? great weight were it not for the fact tn,
| our own supreme court in re attorney ger
t eral, 9th Pacific Reporter, 249, decided
That the court III acting OF its own me
ton to ascertain who are its officers mus
) also know as matters of law not only tn
7 extent, but also the legal limit of excel
tive power as declared by its own decide
) cases. The court must take notice of il
own decisions, and where in Its adiudics
J tons the power OF the executive has bee
defined and declared the court will nc
, presume against its own rule the exis
ence OF wider authority.
That the decision is binding upon thi
court, and, looking behind the COMM
sion of Mr.. Victory to ascertain the eX
tent and legal limit of the executive t
make the appointment, find that tn
supreme court of New Mexico de-
cded in Territory VS.. Stokes ct al, I'd n
NJ, %, that the governor has power to ar
point during the recess of the leyislativ
council only in case OF u vacancy happen
ing from resignation or death, and tina
Mr.. Victory's appointment was illegl
even upon the assump tion that the office
such one rs the governor had the author
ity TO nominate the incumbent and by IN
with the advice and consent of the legis
latiye council appoint.
1t was argued by counsel for Mr.. Vic
tory that chapter 56, laws OF 1859, in 30 ia
as it provides for the election of district al
torneys by the territorial council is in con
flict with the organic act, but, tina
Sec. 8 of the act, which reads:
"Lf any vacancy should occur in tn
Office of any district attorney, the sam,
may be filled by an appointment Of
qualified person by the governor, to ex
pire on the commencement of the mex
legislative assembly thereafter" is not il
conflict with the organic act and must b.
held to lie good, and to enlarge the powe
Of the governor to appoint in case of ,
vacancy, that Twitchell's action was illeea
and therefore there was vacancy in thu
office which could be filed by appointment
by the governor.
| think the position taken is not sound
The language of section pre.supposes tn,
office to have been once filled. If it hac
not been filled no vacancy could occur
And if the office OF district attorney is
territorial office, then the legislative as
sembly could not enlarge the power O
the governor with respect to making ap
pointments to fill vacancies.
The governor derives his power to max
appointments to territorial offices from
the organic act, and not from the legisla
tive assembly. Congress, having declared
that the governor should have the powe
to fill vacancies happening by death o
resignation, put limit upon his powe
which the legislative assembly could no
enlarge or restrict.
In accordance with these views OF tn
law Mr.. II. L. Twitchell will be recop