Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1893-07-17
Chief Justice O'Brien Decides Il Jury
to Be Necessary OIL Ques-
tons of Fact.
Cunningham Attorney Sets up That
Questions of Fact Are at Issue,
Which is Denied and De-
INJURED to by Conklin's
Attorneys.


ham, by his council Judge Warren, APP
peared specially with melton to quash
the writ, based on precisely the same
grounds on which they had resisted its
issuance The reason being that the writ
was not made returnable on day within
the term for which it had issued. The
court held that there was continuous
session for this purpose and overruled
the motion. Thereupon Mr.. Cunningham,
by his counsel appeared and filed plea
to the information. Judge Warren stated
that the plea raised questions Of facts.
The court going on the supposition
that this statement was true rendered an
opinion, after reciting the history of the
case substantially as follows
''How shall the issues of fact involving
the existence or non-existence of such
delinquency, be tried, by the court or by
a jury! This question ought to be
answered before proceeding further.
"The territorial statutes are silent upon
the point, except that Sec. 1928, Com
piled Laws 1884, declares that, "In all the
courts of this territory tho common law,
America, shall be the rule of practice and
decision
"This is an action at law, extraor-
binary, it is trae, but plainly not of chan
Gerry or admiralty cognizance. If it is
not such action, it should be dismissed,
as there is no positive enactment recog-
nizing its existence"
GAS territory, our courts must act in
conformity with the requirements of the
constitution and laws of the United
States. Article of the amendments of
the federal constitution provides: "In
suits at common law, where the value in
controversy shall exceed 500, the right of
trial by jury shall be preserved, and no
fact tried by jury shall be otherwise
re-examined in any court of the United
States, than according to the rules of the
common law"
The court then goes on to consider the
general right to a jury trial in all cases
in which the money value involved is over
500; and decides concerning the sheriff's
office after considering the question of
fees and emoluments, that "the right to
such fees and emoluments is the real mat
ter in controversy"
Various decisions are quoted in line
with the above. Some of them being
English and many American. The act Of
9th Anne, ITO, regulating the proceed
ings in mandamus and informations in
the nature of quo warranto is also fully
analysed, from which the court determined
that "the right to have disputed facts
determined by jury in mandamus pro.
lie 0lo ri +hn NJ
verdict is the finding of Jury. II
such mode of determining issues in man.
damus proceedlngs-is a matter of course
why not in informations in the nature OF
quo warrantof No valid reason can be
assigned. That act is part of our com.
mon law"
Judge O'Brien then quoted at length
from decision of the supreme court OF
Idaho, rendered March IL, 1889, in the
case of the People, ex. rel. German ap.
pelant, VS.. Havird respondent, an action
under local statute to try the title to an
| office to which there were several claim
ants.
Judge Berry, delivering the opinion Of
the court said: "this action is under an act
of the territorial legislature of Idaho
|
534-542 inclusive, of the code of civil pro.
cedure, and its purpose is to try the title
Of the respondent to the Office of sheriff Of
Boise county. 1t has the usual provi
sions for obtaining jurisdiction of the
parties, the formation of issues by plead.
ing, the trial of the issues, and the rendi-
zion of judgment, with the further priv
lege of appeal to this court. The pro.
ceeding is called by the act, an action
and it is SO treated by both parties, and
it must be SO considered for the purpose
of this appeal
| "Its purpose, however, is to attain the
end reached by writ of quo warranto at
common law, or writ of right for the King
against him who Improperly claimed OF
usurped an Office. Such writ is not suited
to our form of government, and in Amer
lea it has fallen into disuse, and statutory
proceedings in the nature of writ Of quo
warranto have in most of the states il
not in all, taken its place." Il y
"In our territory our Legislature has
gone much further, and includes within
its act the full scope of an information il
the nature of writ of quo warranto, in
GLIDING its criminal features and power tC
punish. Such information in the nature
of writ of quo warranto, was properly {
criminal method of prosecution, as vel
to punish the usurper by fine for thu
usurpation of the franchise as to ous
him, or seize the office for this crown.
Paine, elections, no. This law moi
only provides for supervision of elections
and the correction of errros, but it goes
further, and places in the court unmistak
able judicial powers x y.
| After citing section $50 of the obno1
ious act, the court proceeds: If that part
of the act is void, the objection may bt
made at any time, even on appeal. The
grounds on which it is urged that this
provision is unconstitutional are, 1st, that
it denies the right of trial by jury; I'd
that it creates tribunal unknown and
unauthorized by the laws.
"After citing the several provisions Of
the constitution of the United States and
the congressional act of April 2, 1874
guaranteeing the right of trial by jury
the court continues; "there seems to have
! been disposition in some States, unde,
their own constitutions, to evade these
provisions, whether of the United States
or state constitutions, or such of them az
clearly affect this case. Some courts have
gone so far as to deny squarely that pro.
ceedings of this nature are of legal, in.
stead Of, equitable cognizance. A Mis-.
souri, case, Estate VS. Lupton, "a, Mo. 416)
so holds. But this case is met by the
New York court of appeals in People VI
Albany & Susquehanna R. r. Co., 81, N.
Y. 16l, id which case the court holds that
an action in the nature of a quo warranto
brought by the attorney general, in the
name of the people of the state, to try
the title to a corporate office to which
there are several claimants, is one OF
legal and not equitable cognizance; that