Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-02-02

| title get up by the rival set Of commis
sioners. the rnandamus was not, for tina
| reason, void. 1t was resisted, however
| by the relator, on the grouLd that 1t coul'
not be used as r means of contestlng b
right OF the rival claimants to the Office
There might be much forcein the reason
assigned in support of this doctrine, /
alleged against the propriety OF the pro
ceedings by mandamus. But the mistake
Of the relator lay in supposing that thi
objection could be successfully interposet
as a Justification iOr refusal TO obey TIT
mandate OF the court.
There is q marked difference between
the utter want OF jurisdiction. and an er
rOEonus exercise thereof the former may
be plead ss q Justification for Il refusal Il
obey the order Of the court, but the ,ntle1
can not
Cohen ss. Jones, 9TH CAL, 4jj
Church Oh ilabeas Corpus, 81.
Ia the case OF PeO. ex rel Garbnt ys
| r. & $. J.. K. K. Co, Is \. y, 2SS, i
was said
The question oi the propriety Of thai
order is not now before us, the present
appeal being only from the order adjudg
ing the appellants guilty OF contempt ir
not having obeyed the writ
It Is insisted, however, that the man
! damus Was void, for the reason that il
was vague and uncertain in its ,mnand
that it required the relator, not only tc
! recognize certain parties as entitled to ex
ercise the functions OF the Office, but thai
! he was also commanded, among other i'm
practicable things, to enter all the past RS
well as the future orders, OF said board
that the writ, in effect, commanded him
to do what was not then, and might never
become, his duty. This writ did not, as
We understand it, seek to impose on the
reator any impractcable or difficult duty.
1t simply required him to perform his
usual and ordinary duties rs eX-oificio
clerk to the board. Whatever this board
has already done that had not been rec.
orded, was to be recorded and he was to
attend from time to time in the future, to
perform his usual functions in the usual
way.
1t is not pretended that il was not in
his power to obey the leading and all-im-
portant command laid upon him. 1t is
not possible that he could have misappre-
hended the principal purpose OF the writ,
which was to direct him to recognize in
his official capacity, one of the rival sets
OF claimants, and to refuse to recognize the
other. He seems to have misapprehen
entirely, the functions of his Office, He
was not authorized by law to determine
who were, and who were not, the legally
elected commissioners that question had
already been determined; so far at least
as to bring his ministerial duties within
the jurisdiction OF the court.
1t does not follow that because the
court ordered him to do that which in
part he could not do, therefore the writ
was void. In the case OF the
United States, ex rel. vs. Labetto
county, I'd McCrary Reports, 27, writ
of mandamus was issued to compel The
supervisors to levy, collect and pay over
certain taxes. The respondents levied
the tax. but returned that they had no
power, process or authority by which they
could collect it. A writ Of attachment
having been issued. they Were discharged
for the reason that having done oil in
their power to obey the writ they were
not guilty OF contempt.
This question was discussed at some
length in The People ex rel. vs. Nestrsnd,
46N Y, 37S. In that case it was said:
ut was also urged upon the argument
that tho order should be reversed because
the precise amount Is not specified in the
peremptory writ. This position is not
tenable. All that ls necessary is that
the thing to be done should he described
with reasonable certainty, with such GER
tainty that the defendant will know what
is required CT MIN. This rule is peculiar
ly applicable to public officers who are
commanded to perform a public duty and
especially where the facts constituting the
act are within their personal knowledge" "
After citing many authorities in sup.
port OF this view, the Court proceeds to
say.
These and other authorities establish
that it is sufficient to inform public
officers in a general way what their duty
is, and to command its performance, TN
less they can justify or excuse the neglect
They can not shield themselves behinc
technical objections to the descriptive
part of the act to be DONE"
Numerous other authorities might be
cited in support of tile general proposition
that on an application for habeas corpus
to be discharged from commitment foI
contempt, it can not be shown that the
proceedings out OF which the action fOl
contempt proceeded were irregular.
Cooley on Constitutional Limitation
34S, and cases cited.
And in support OF the proposition tha
a proceeding by mandamus is not void
by reason Of mere irregularity, but that i
| may be good as to part, and bad as t
part, we cite,
Ex parte Parkf, 90 U. S., lS,
EA parte Rowland, l04 U. S., GOA,
! Ex parte Clarke, 100 U. s., 39g, and
Ex parte Diebold, 100 U, s., 81.
Assuming, however, for the purpose 0
the argument, that the relator did no
properly comprehend the terms OF tn
mandate addressed to him; Assuming
that in the presence of rival claimant
for the Office, he was at loss to knoN
how he should proceed. Assuming tha
he honestly believed that the petitioner
in the mandamus proceeding had nc
been elected, and were not therefore Ell
titled to exercice the functions OF til
office; what then, was his plain, and VI
mistakable duty? Was it his province t
make an issue with court of competer
jurisdiction, and after having the que
tionsthus presented, decided against hin
to defy the power Of the court? Can t
escape now the rightful consequences {
bis contumscy by pretending that he d
not understand what was required OF him
On this point, the case already referred
in 46th New York, is instructive. It WI
there said, page 37S:
"If he desired in good faith to comp