Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-06-08

penalty incurred by such officer or mem
Der OF such body or board, by reason Of
his refusal or neglect to perform the duty
30 enjoined." But that section provides
for the wrong done by the party, in fail.
ing to discharge the duty imposed; and
does not exclude the power of the court
to punish for disobedience of the writ.
or to compel obedience to the writ by i'm.
prisonment until compliance. The sec
ton quoted was taken from the lepisla.
ton of the state of New York, 2 N. Y.
Rev. statutes, 5S7, section co. and the
scope Of that section was considered bv
the New York court of appeals in people,
vs.. Railroad company, (76 N. Y. 294. J
In that case the court thus interpreted
the section: "We do not think that this
provision was intended to prescribe the
punishment tor disobeying the writ, but
that its object Was to authorize the court
to whom application should be made for
a writ OF mandamus against public off.
Ger, body or board to compel the perform
ance OF public duty specially enioined
by law, to impose fine upon the officer,
ETC., for past neglect of his duty, in addi.
ton to awarding peremptory mandamus
compelling it's performance, providing no
just excuse is shown for such past neg.
lect. This power of the court granting
the mandamus, to fine for past neglect
was intended to obviste the necessity of
criminal prosecution under the statute
which constitutes such neglect mis-
demeanor, and to enable the court
81 afTtahrang Az ngEo,a the ,mIeandamps o dispose
The offence for which the fine is author
lied to be imposed, is not disobedience of
the writ, but the unexcused neglect of
duty of which the officer was guilty before
the writ issued and which rendered
the application necessary, and the fine
may be imposed at the time of issuing
the peremptory writ. This is the clear
import of the language of the section, and
in the revisers' notes it is stated to be
new provision, intended for the purpose
above indicated"
This brings us to the principal question
in the case; and that is, that the real i'm
port of this proceeding was to try the
title to Office; that quo warranto is a
plain, speedy and adequate, as well as
the recognized remedy for trying the title
to office; and that the familiar law in
respect to maHdamus, reinforced by
provisions in New Mexico, is
that mandamus shall not issue in any
case where there is plain, speedy and
adequate remedy at law. On this, the
lnvalidity Of the proceedings is asserted.
But the obvious reply is, that this was
not proceeding to try the title to office.
The direct purpose aud object was to
compel the defendant to discharge his
duties as clerk, and to forbid him to as.
sumo to determine any contest between
rival commissioners. 1t was enough in
this case for the court to determine, and
it must be assumed that the evidence
placed before it was sufficient to authorize
an adjudication, that the petitioners
were commissioners de facto. As such,
the clerk was bound to obey their COM
mands and record their proceedings. 1t
is true, the pleadings disclose the exist
ence of contest between these petition
ers and other parties, and it is true that
the answer would tend to show that the
others were the commissioners de facto
but that was question of fact to be de.
by the court hearing this appli-
cation, and it, as must be assumed from
the decision, found that these petitioners
rather than their contestants were the
commissioners de facto. 1t was proper
for it then to issue mandamus to COM
pei the defendant to recognize them as
The commissioners of the county, and |
this irrespective of the question
whether or no the petitioners were
also the commissioners de jure.
Nc one would for moment contend that
This adjudication could be pleaded as an
estoppel in quo warranto proceedings be-
tween the several contestants. If that
has not already been determined in suit |
TO which all the contestants are parties,
It is still matter open for judicial inquiry
and determination, Who would doubt,
i these petitioners we're the unauestioned |
commissioners of the county, that man
damus would lie to compel the clerk to