Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1892-04-11
BERGMAN WINS.
The Mandamus Proceeding Involving
the Management of the New
Mexico Penitentiary.
Mr.. DeMier's Application for Per-
emptOry Writ Denied-FulI Text
of Judge Seeds Opinion.

In the mandamus proceedings brought
by John r. DeMier to compel Col. Berg.
mann to transfer to him the management
of the penitentlary, Judge Seeds to-day
rendered the following opinion:
| This Is mandamus proceeding brought
by the relator to compel the respondent
to deliver up to him the territorial peni-
tentiary and all things belonging to it, he
claiming to be rightfully entitled thereto
by reason of his appointment to the Of
| flee OF superintendent OF the institution.
The alternative writ alleges that MIR. De
Mier was duly elected superintendent Of
the peniteptiary by the board Of commits
sioners at its regular meeting in March
1892; that he has taken the oath pre-
scribed by law; and given the official
bond which has been approved by the
proper officer; that he has demanded
possession Of the office and the things
pertaining thereto of the respondent
Bergman who, he alleges, is the assistant
superintendent and now acting superin-
tendent, and who refused and continues
to refuse him the government and control
of the penitentiary; and that he, there.
fore, sues on this writ to obtain the pos
session OF the Office.
To this writ the respondent makes an
swer in which he denies that the relator
is the duly qualified and elected superin-
tendent of the penitentiary; and further
alleges that he-the respondent-is the
de facto superintendent and de jure as
sistant superintendent that one J.. Fran
cisco Chaves is the de jure superintend-
ant; that the relator is now a member of
the board OF commissioners of the peni-
tentiary for the management thereof,
and when he was elected such superin-
tendent that he voted for himself as such
superintendent, and if he had not done
SO there would have been no election,
the vote standing three to four IN his
favor that he was never elected superin-
tendent, because the board of commits
sioners has no legal authority to elect a
superintendent; and that the title to an
office was put in issue and required to be
tried by this proceeding which could not
be done, and that, therefore, this court
had no jurisdiction of the case.
The respondent urged upon the hearing
the following objections to the demand Of
the relator:
First. That he was occupying an office
that Of commissioner of the penlten-
tiary-under the authority of the territory
at the present time, and that so doing,
by specific statute of the territory he
could not bold the position of superinten
dent of the penitentiary.
Second. That he had voted for himself
for the position of superintendent, and
that by so doing he had rendered his elec-
tion invalid.
Third. That under the organic act of
the territory-which is its constitution
no one but the governor, by and with the
advice and consent OF the council, could
appoint territorial officers and hence, that
any appointment by the board of commits
was illegal and void.
Fourth. That the pleadings in the case
raised the question of the title to an Office
which can only be tried by QUO wal ranto
proceedings, and hence the court was
without jurisdiction.
1t will be noticed that the first, second
and third positions taken by the respon-
dent specifically raise the question OF the