Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1893-07-10
THE SHRIEVALTY.
Judge Fall Oycrrules Decisions Ca
lore and Recognizes Cum
ningham.
Judge O'Brien Hears Argument on
Writ of Quo Warrante and to
Compel Cunningham to
Show Legal Title-The
End Not Yet.

The case of Chas. NJ. Conklin VS.. VIM.
P. Cunningham came up before Judge
Fall, of Las Cruces, acting in this district
in the absence of Judge Seeds. Judge
Warren made motion to set aside the
temporary injunction granted by Judge
Seeds preventing Cunningham from in
terfering with the Sheriff's duty; and also
praying for an alternative writ of man
damus requiring Mr.. Conklin to turn
over the Office of sheriff. The motion
was promptly allowed by Judge Fall in
spite of the strenuous opposition of
Messrs Catron and Bartlett who appeared
for Conklin. The gist of the argument
on the mandamus suit was, that in the
| first place jury was necessary to try the
| issues Joined on the alternative writ
of mandamus and the return of 1t, for
which there is authority in nearly all the
| states of the Union. Next, that manda-
mus would not lie when the party has any
| other plain, adequate remedy, it being
an extraordinary writ and only issued
when there is not plain remedy rs quo
| warranto, and that in no event should it
issue when there is an actual de facto in
| cumbent of the Office. The United States
| supreme court in all its reports from the
| last volume, lat, back to 5 Howard sus-
| tains this position. Messrs Catron and
Bartlett cited the following authorities in
| support of their position:
Taking oath not sufficient user of Office
| to give jurisdiction.
Meacham public officers, Sec. 432.
People ex rel Callaghan, SO HIS, p 1879
135. ~ Ills. p 1873.
The King VS.. Tate, East 1877.
The King VS.. HARDWOOD, East IT.
7 Lowson r and R, SEQ. 4O4O.
There must be trial on issues made
by jury unless jury is waived.
People vs. John Gillen, 50 Ills, p SO.
Information in the nature of the writ
of quo warranto is sufficient under our
practice. Il proper.
Territory e1 rel Wade VS.. Ashenfelter,
New Mexico, p 1891.
| And it may issue in vacation; same au.
thority, page So.
State VS.. Buchanan, Wright tOhio) r
239.
State VS.. Smith, 4S vt. 281.
Linsley VS.. attorney general SO Miss
523.
The executive power of the governo,
does not include power of removal. Snme
authority, page 101.
Field VS.. people, Scamon Ills, p 81.
Where there is fixed tenure of office
there is no power to appoint in the gov.
ernor or to remove the incumbent with.
out giving him due notice and an oppor-
tunity to be heard. Same authority. page
l04, los and cases cited.
Collins VS.. Tacy, Sc Texas SAT.
Dullam VS.. Wilson, So Michigan 1872 (51
| Am. Repts. 1881.
Page vs.. Hardin, 8 b. B. Msnroe Ky
672.
State Va. Prichard, Sc New Jersey law
p ia.
E1 parte Garland, 4 Wallace 37s-S3s.
Armijo VS.. Board, 3 N. NJ, 291-30l.
Foster rs. Kas.. 112 U. S., p 2O5.
| pleading and burden of proof Z, Law.
son R. e. H., Sec. 4045. 10 Am. aud Eng
Encyclopedia of law, p $50.
Judge Warren, for MIR. Cunningham
commended that no issues had been joined
that the question was purely of law. He
admitted that mandamus would not lie
when there was de facto officer, but
claimed that Cunningham was such dc
facto officer under the commission of the
governor and the approval of his bond
and oath, and that what he required waf
possession of the books and papers
necessary to his Office; that he was net
trying to get into Office but to get thu
>bar poti re h o433
the writ would lie. On this Judge
Fall decided that "the court being nov
fully advised and informed in the prem
ises, it is hereby ordered and adiudgei
| by the court here that said motion b,
and the same is hereby sustained and tn,
} said temporary injunction heretofore is
sued in this case against the said defend
ant is hereby vacated, set aside and dis
solved; and it is hereby further ordered and
adjudged and decreed by the court, upo1
motion of the said defendant, that com
plainants bill of complaint herein be ant
the same is hereby finally dissolved a
the costs of said complainant"
Mr.. Cunningham's bond, filed June %
is in the sum of $4,000, in which Chas. b
Gildersleeve and Napoleon B. Laughlil
justify in the sums of $4,000. The col
lector's bond has not yet been fled.
Mr.. Conklin prayed bill of exceptions
which was Immediately prepared by hi
counsel and signed by Judge Fall.
Last night Judge OBrien came dow,
, from Las Vegas and to-day at 10 a. N
opened court here to hear the proceed
ings in que warranto brought by Nj
! Conklin to compel Mr.. Cunningham {
show legal title to his Office. Under thi
proceeding the constitutionality of tn
' governors action and all other matter
: which Judge Fall refused to hear will b
gone into. The decision in this case wi
be on the merits of the matter and not .
parte on some or few of its aspects.
The court only held short session /
the morning and adjourned until 2 p. n
At that hour Solicitor General Bartlett
filed an information on which he Request
cd writ of quo warranto, returnabl
: next Monday, directed to VIM. P. Cur
$ ningham to show cause why he was OF
q titled to exercise the duties of sheriff.
Judge Warren as amicus curiP, objsc
ed to the return of the writ at said dat
= and quoted extensively from Wade v
+ Ashenfelter in support Of his side. H
i. objection was based on the ground th,
j: the writ should be made returnable to Il
court in term or in session and should nj
be made returnable at another term.
oil At O'Clock this afternoon Jude
O'Brien granted Solicitor General Bar
i, lett's motion for writ of quo warrant
a returnable before himself at 10 a. n
Is Monday, the 18th inst.
The Timely showers.
"a Anent the rain of tho last few days Il