Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1892-04-11

1t was admitted by the relator that the
answer to the writ substantially stated
the facts. There were no exceptions
taken to the answer, nor effort by proof to
deny the facts, therefore they must be
taken as true and this decision founded
upon the pleadings solely.
Sec. 1899, Compiled Laws, 1884.
Upon the coming in OF the answer the
relator moved for the issuing OF peremp-
tory writ notwithstanding the answer,
for the reason that the respondent was
not the occupant of the office OF superin-
hence this respondent could not raise the
question of title. The question then is,
was E. II. Bergman occupying the
position Of superintendent go as to entit!e
him to insist that MIR. DeMier had no
title to the office and require an inquiry
into that issue by this court. II he did
occupy such Q position and could raise
the question then the iaw is too plain for
argument that ono swananto and not
mandamus is the proper proceeding to try
that issue, and the writ herein asked
must be refused.
See authorities supra.
Our statute says "it'--the writ-"may
be issded TO any inferior xxx per-
son, to compel the performance OF any
act which the law specially enjoins as
duty resulting from an Office, trust and
station"
Section 1893, Compiled Laws, 1884.
The writ requires the performance of a
particular duty, which duty results from
the official station of the party to whom
the writ is addressed.
High on extraordinary legal remedies,
secs. and 5.
What trust, station or office does f. H.
Bergman hold which carries with it duty
specially epjoined by law which requires
an act to he performed in relation to this
relator which he refuses to perform and
can be coerced to do by mandsmus? 1t
is certain that if he holds no office, trust
or station that this action will not apply,
for If he is obstructlng the rightful officer
in taking possession of the Office lie can
only be dealt with by injunction. That he
was assistant superintendent and is now
is conceded. But under the law for the
government of the penitentiary the as
sistant superintendent has not the legal
possession Of single thing demanded by
tIlo wiz uO udo Ao Auty pPOItnhy VA-
joined upon him by law in regard to them
upon which an act such as is required
here as necessary in order that he may
be compelled to its performance by the
writ. BY the law governing the peniten.
tiary the superintendent alone has the
legal possession OF the buildings, prison
ers, books, tools material, etc.
Sec. 81, Chapter 76, Laws OF 1889.
How can the assistant superintendent
be required to give up the legal possession
of things to a successor, if he is not in the
Office to which successor is appointed
If he is not the acting superintendent,
and therefore de facto superintendent,
he has no rights whatever to the Office OF
superintendent and to the things which
belong to that office, and he can not pass
them to this relator for he has no legal
power over them. If he illegally holds
them he can be compelled to relinquish
them by injunction, but not by mands-
mus. But conceding that Mr.. j. Fran
cisco Chavez lad resigned and that no
successor had been chosen, then ass1redly
the assistant superintendent must by the
logical necessities of the case occupy bis
vacant place ad interim as the dc facto
superintendent. Now it appears by the
record Of the proceedings Of the board Of
that that board by it's legal
officers placed the responsibilities of su-
upon Mr.. Bergman after
the resignation OF Chavez, and that he in
fact had the same authority over the peni.
tentiary as the superintendent. That
board had the legal right under the law
to do this, hence Mr.. Bergman is in the
office Of superintendent under color Of
right, and is de facto superintendent. |
What is more, by the alternative writ,
this relator in so many words admits that
the respondent is the de facto sGperin.
tendent. As such an officer then, he has
the right to the place against all the
world except the legal and lawfully chosen
unless removed by quo
" warranto proceedings. As the color OF
title in this case is absolutely legal, the
office can only be taken away from the
respondent by the assertion Of title su-
perior to his own and emanatlng from the
same authority. His color Of title is so
strong that it gives him authority to hold
the things entrusted to his care against
every one but the legal superintendent,
and casts an imperative duty upon him
not to deliver those things to any one but
the legal superintendent. This logically
involves the right to question the title of
any party claiming the Office Of superin-
tendent, and hence of bringing up that
title for trial. This be has done. He
makes the specific challenge to that title.
This court in this proceeding has no
to try that title.
The relator has presented but one au-
thority as to this question, and that the
case of In re. Delgado, 40 U. g., 5S6.
But the cases are not parallel. In that
case board of county commissioners,
which the court recognized as the legal
and de facto board, and as actually in the
possession of the office, attempted by I
to compel it's clerk to perform
his duty. He refused, alleging as q rea-
son that the board was not the legal
board. The court said that under those
the clerk 4 could not
raise the question as to the legal title of
he beard. The court says: "This
brings US to the principal question in the
case; and that is, that the real import Of
his proceeding was to try the title of
office; that. QUO warranto is q plain,
speedy and adequate as well as the recog-
nized remedy for trying the title to office;
and that the familiar law in respect to
reinforced by statutory pro-
visions in New Mexico, is that mandamus
shall not issue in any case where there is