Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-06-08
Of the clerk to adjudicate the question of
their title.
The court sustained every point made
by Mr.. Knaebel in the following opinion
No. 164S.-October Term, 1890.


Pedro Delgado, Appellant,
vs.. Appeal from
Francisco Chavez, Sheriff the Suprem,
OF Santa Fe County, Court Of the
Territory of New Mex Territory of N
leo. M,
May 25, 1871
Mr.. Justice Brewer delivered the opin
ion of the court.
On the 18th OF January, 1891, Abraham
Staab, William H. Nesbitt, and Juan Gar
cia filed in the district court of the Ist ju
dicial district of the territory of New Mex
leo, and presented to the judge thereof
their petition, in which they set forth
certain facts, showing, as they claimed
that they had been elected, at the gen
eral election in November preceding
members Of the board of county commits
sioners of Santa Fe county, in the terri
tory of New Mexico; and further alleged
that on the I'd day Of January 1891, they
had duly qualified as such commissioners
that at the same election Pedro Delgado
had been duly elected probate clerk OF
said county, and had qualified as such
officer; that by virtue thereof he became
and was the acting clerk of the board of
county commissioners, and had possess
sion of the records, books, files, and pa
pers of that Office; that after their quail
fications as such board they demanded of
him to produce the books, and to record
their proceedings as such board and that
he refused so to do or in any manner
recognize them as the board of county
commissioners. They prayed that writ
of mandamus might issue, commanding
him to recognize them as the board OF
county commissioners that he act with
them as such board ). and that he enter
of record their proceedings as board.
Upon this petition an alternative writ was
issued and on the 18th day of January,
in obedience to such writ, appellant ap-
peared and filed his answer, alleging facts,
which, as he claimed, showed that three
other persons were at the November eiec-
ton elected county commissioners, and
that the petitioners were not and further
averring that two 81 those other persons,
on the first of January, 1891, duly quail
fed as members Of the board of county
commissioners, entered into possession
and assumed the duties of such office,
met on that day in the court house of the
county as the board of county commits
sioners, and proceeded to transact the
business of the county; and that they
were still in possession of their offices of
county commissioners. He admitted that
be refused to recognize the petitioners as
q board of county commissioners, and
alleged as his reason therefor that they
were not the legally elected commission
ers, and had never been in possession OF
such Offices. On the same day, January
l5, the matter came on to be heard on
,hese pleadings, and q peremptory man.
Janus was ordered, commanding the ap.
oellant that he record on the records of
he county the proceedings of the peti.
toner's as the board Of county commits
Iioners of the county; and that in all
hings he recognize them as the only |
awful county commissioners of the coun-
y. Disobeying the peremptory writ, he
vas brought up on an attachment for |
contempt, and committed to Jail until he
'hould nnrga hi.@a all. thereof by obeying |
he writ. Instead OF taking steps to re- |
REV this judgment directly, by proceedings
n error in the supreme court of the ter
itory, appellant, on the 23d of January,
lied in that court a petition for writ of
labeas corpus. On January 81 hearing
vas had thereon, and it was denied from
which judgment this appeal has been
AIKEN to this court.
The attack upon the contempt proceed
ngs is in collateral way by habeas cor
Gs, and the inquiry is one of Jurisdiction.
Elk parte Watkins, 8 Peters, 1893, 203
TX parte Parks, SO, U. S. 2S0, 2S5, 1856
TX parte Wilson, 40 U. S. y In Elk
arte Yarbrough one question was as to
he conformity Of the indictment to the
rovisions of the statute; and it was held
hat it "can not be looked into on a writ
f habeas corpus limited to an inquiry in
D the existence of jurisdiction on the part
( that court"
This narrows the range of inquiry. 1t
, objected that the peremptory writ was
old, because ordered in vacation by the
ldge, and not after trial by a jury, in the
ourt, in term time. Section 2O05, Com
lied Laws of the territory, provides:
For the purpose of hearing application
)r and issuing writs of mandamus the
istrict court shall be regarded as open at
IL times wherever the judge ofsuch court
nay be within the territory" This Sec
ion gives full authority for these proceed
ngs. The original application was en-
tiled Gin the court" though addressed to
he judge, as was proper. The hearing
nd judgment were by the court, and the
eremptory mandamus was issued by di-
ection of the court and the power OF the
legislature to provide that the court shall
lways be open for certain purposes, can
ot be doubted. A somewhat similar
revision has been made for the circuit
ourts of the United States in respect to
be supervision of elections. (Rev. stat.
tes, section 2013.) While no jury was
ad, apparently, none was demanded
nd the determination of the facts by a
Try in q mandamus case is not neces-
ary preliminary to valid judgment.
Again, it is objected that the punish
lent is different from that permissible in
eses of mandamus, and section 2OO2 of
he Compiled Laws is cited. That reads
s follows: whenever q peremptory
,andamus is directed to public officer,
ody or board commanding the perform
nee of any public duty specially enjoined
y law, if it appears to the court that
1ch officer or any member of such body
r board, without just excuse, refuses or
eglect to perform the duty 80 enjoined,
le court may impose fine, not exceed
~ $3.50, upon any such officer or men,
er of such body or board; such fine,
hen collected, shall be paid into the I
,rritorial treasury, and the payment Of I