Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1889-08-01
PROMPTLY SETTLED.
Full Text of Judge Whiteman's Opiu-
len in the Matter Of tbs Dis
trict Attornoyship.
An Able Court Document Recognizing The
Validity Of kr. Twitchel's
Claims.

| district attorneyshlp:
! IN the matter OF the district attorney :
On tie - day OF July, 1889, William y.
Coer applied for Il perrmptory writ o.
| mandamus against the board Z! county
commissioners OF Santa Fe county, and
! n response to The inquiry OF the court as
to who represented tine board OF county
| commissioners, Mir. H. L. T"itche!l and
MIR. John I. Victory arose, and each
claimed the right OF appearing for
said board Nh TWitcheli claimed to he
| district attorney of the district composed
OF the counties OF Santa Fe, Rio Arribu
and San Juan, by virtue Of an election by
! the territorial council OF the 2Sth leglsu-
| i've assembly ot the territory OF New
Mexico, pursuant to the provisions OF an
| act Of sad Legislature assembly which be-
| came il law on the 18th day OF Fehrua V.
| 4, Il. 1889, and presented certificate oi
| his said election dated February IS, 1889,
| signed by j. Francisco Ehaycs. PERSISTENT,
and J (, NJ. MOntDyu, chief clerk OF said
territorial council; and at Il subsequent
time MIR. T"itcheIl pre- ented Il commits
sion signed by the governor and attested
by Geo. W. Lane, secretary OF the terri
tory, bearing date April 20, 1889, which
recites the fact OF Twitrhell's former elec.
ton 10 the Office OF district attorney by
the territorial council and that such com
mission is issued 10 him pursuant to the
provisions OF the organic net Of New Mex
leo, " hich provides that the governor
shall commission all officers who shall be
appointed to Office under the laws OF said
territory. 1t was also shown to the court
that Mr. TWtciell on the 2ylh day OF
April, 1850, took and subscribed to an
oath ui UiI!ce before Geo. W. Lane, Secre-
tary Of said territory, and filed the same
in the office vi said territorial secretary
Mir. Victory claimed 10 be district at
tOrrpy Vi the same district and i'll support
OF his claim presented an appointment
and commission ci Edmund Ct. Ross,
governor of New Mexico, attested b. Geo
W. Lane, secretary, bearing date March
|, 1889, which ieCltes that SAID Victory is
appointed ana commissioned to the Office
OF district attorney Tor the district COM
prising the counties OF Santa Fe, Rio
Arriba and San Juan, and also COM
mission executed by said governor and
secretary bearing date March 20, 1889,
which recites that said Victory is commits
ney from March /, 1889, nnnn which
comm2.%s. he All Victory Endorsed an
subscribed to al oath OF Office on the 2lS
day OF March, 1889, before Wm. White,
notary public Tor Santa Fe county.
Upon the case thus made argument Wa
made at length Oh the 2Jth day Of Jul,
1889, by Mr. John f. Knaebal for Nj
TwilchelI and Mr.. Neill Is. Field ior Nj
Victory, and from it the court is Gale
upon to decide the QUE stion as to whethe
Mr.. TWitchell or Mr.. Victory is the d
3 facto district attorney. The argument la
taken wide range and many import
ant legal questions were discussed hay
7 not the time i'll this opinion 10 review til
many legal questions suggested upon tn
argument, or the authorities cited in sur
port of them, ana will undertake to civ
the conclusions | have arrived at ate
careful investigation OF the questions il
volved.
1t appears from the evidence that tn
election OF Mr., TWitChell by the territorial
council was prior TO the appointment q
Mr., Victory by the governor, but tina
Mr.. Victory qualified before Mr.. Twitchell
1t also appears that Mr.. Victory Ia
been recognized by the board OF count,
commissioners OF Santa Fe county as dis
trict attorney, and that he has acted Il
| the attorney and counsellor OF that board
1t also appears that Mr.. TNitchell ha
been recognized by the various territoriu
officers as district attorney and actin,
solicitor general, that he has been called
upon by them ior advice, that the terri
tOrial auditor has audited and the treas
urer paid bis salary accounts.
1t Is cOntended by counsel for Mr.. Vic
tory that he having first qualified, and from
that time acted and to All extent havinl
been recognized us district attorney, he
, thereby became and is de facto distric
attorney, and therefore entitled to recog
milton as such by this court.
| AMI Of the opinion that this will de
pend upon whether qualification is re
quired by statute precedent to the distric
attorney entering upon the duties OF hi
office, rs well as the character OF the title
to the Office under which the party quail
fed. Section 5, chapter 81, laws OF 1889
reads. THE president Of the C0unci
shall give the district attorney elected b,
the council a certificate thereof, which
shall be his authority TO act and discharge
the duties thereof"
Tie chapter referred to does not re-
IQuire district attorney elected under the
provisions of the act to take, subscribe
and file an oath OF office. 1t requires
that he shall hold his office until his sue
cessor is appointed and qualified, thus
making qualification an indispensable re-
quirement in his successor but as tc
those district attorneys first elected by
the territorial! council the certificate OF
the president OF the council gives them
authority to act and discharge the duties
OF the Office.
The main question TO be decided is
whether the governor has under the or.
ganlC act the right to appoint the district
attorney or whether the legislative assem-.
bly, may provide for the appointment OF
election OF district attorneys in some other
manner than by appointment OF the gov
ernor. 1t is commended that under section
1881 OF the organic act "the governor
shall! commission all officers who are ap
pointed under the laws OF such territory
and shall take care that the laws Thereof
be faithfully executed" | can not see
l that the Language OF the section QuoteC
contains any grant of executive powci
other than to issue commissions to such
officers as he may lawfully appoint. Il
does not extend or enlarge the kind OF
class Of officers that the governor may ap
point, but declares his duty as to issuing
commissions to officers who may have
been appointed by him under the laws Of
the territory.
The organic act must be construed to.
gether so as to give effect to the whole,
il possible, and | do not see any such re-
pugnancy in its provisions relating to the
power of the executive ns will prevent civ