Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1893-06-29
SHERlEVALTY CONTEST.
An Emphatic Denial to the Governors
Charges Set Upin Court by
Sheriff COnklin.
An Injunction Against w. P. Cunning.
ham Asked fora Demurrer and
Arguments Thereon.

Arguments lneTeOu.
The second chapter of the custer OF the
duly elected sheriff of Santa Fe county
was opened this morning before Judge
Seeds. Promptly on tho assembling OF
the court Mr.. Catron arose and offered q
bill in equity praying an injunction
against W. P. Cunningham from interior
ing with the duties of the sheriff's Office,
properly exercised by Chas. NJ. Conklin,
duly elected thereto. The bill recites
every fact in the case. 1t sets up oil the
official correspondence, the commission,
oath and bond, Objection was made by
Judge Warren to the reading of Gov.
Thornton's letter of reasons addressed to
Mr.. Conklin, and which appeared in yes
terday's New MEXICAN in full. The
court, however, permitted the reading;
the bill further sets up the illegality and
unconstitutionality of Gov. Thornton's
action in removing Mr.. Conklin on the
grounds alleged, and enters an emphatic
denial OF all charges preferred by the
governor. 1t is too lengthy to publish in
full.
Promptly upon tho conclusion of the
reading of the BILL and before Mr.. Catron
had opportunity to finish the opening
sentence of his argument, Judge Warren
obj ected, on the ground that be wished to
enter demurrer to the bill. The point
was raised that this would be admitting
its allegations providing it was found
proper. Judge Warren admitted that
every prayer that was well pleaded would
lie, unless he could show that the proper
action was at law; and Mr.. Catron
could avail himself of no posi-
bility to prevent the court from exer-
cising Il purely ministerial duty and
approving Mr.. Cunninghan's bond. Judge
Warren was very anxious that he should
have the opening and closing argument
on the bill and in this Mr.. Catron with u
pleasant smile acquiesced.
Judge Warren proceeded to quote at
length from various decisions, some of
which were in manuscript and had not
yet been reported. The principal cita-
ton relied on was from SO, Alabama re-
ports, page Sc, which is a case where a
sheriff had been elected, and under local
law his bonds examined by the grand
jury and found insufficient and new bonds
ordered. Pending this, new bonds were
prepared, but the proper officer to whom
they should be presented hid out, pre-
venting their filing. The limitation
having expired during which the bonds
could be legally presented, the vacancy
occasioned thereby was filed by appoint
ment. Tho appointee filed his bonds,
and they were approved, and he entered
on the discharge of his duty. 1nanda-
mus was sought against him by the
sheriff elect, which was refused, on the
grounds that the sheriff, being legally in
Office, with his bonds approved, could not
be interfered with by an equity proceed
ing, but that the proper remedy was at law.
On another side of the case Judge
Warren proceeded to read from section
1894 of Mcecham on Public Offices as fol-
lows: SIT is well settled also, as has here
tofore been seen, that the writ Tor in
junctlon) can not be made, directly or in
directly, to take the place of quo war
ranto and other similar remedies, in try
ing title to public Office. It will there
fore not be granted to prevent one alleged
to have no legal title from exercising the
functions of an office during a trial to
determine q title, or from qualifying for,
or entering upon the exercise of the Office,
or from receiving the salary or fees at
tached to 1t. Neither will the writ be
granted to prevent the appointment of
one to fill vacancy alleged to have been
created by the unlawful removal of the
former occupant, or to prevent the calling
upon by those to whom the law has dele
gated the power and duty"
The NEW MEXICAN, however, DESTROYS
that its readers should always have the
full benefit of its knowledge, quotes the
remaining paragraph of the section
which Judge Warren did not read, as fol-
lows: "But while the writ will not be
granted to try the title to an Office, it
may be issued to protect the actual in
cumbents in the exercise of it by pre-
venting others from interfering until the
title can be determined by the proper
proceedings"
From the above those familiar with
such cases can CLEAN the substance of
Judge Warren's argument in support of
his demurrer.
Upon its conclusion Judge Seeds ex.
pressed himself az follows:
II have since yesterday examined the
law and facts of this case, and it seems
to me exceedingly queer that in such a
case as this, when sheriff is elected, and
who is present exercising his duties, who
has opened my court this morning, that
I have got to admit tho prima facie evil
dence of any man who chooses to come
before me with certificate or anything
else; and that have then got to pass
upon his bond; and that l have got to
recognize the man presenting that certi-
ficate and bond as sheriff. It seems to
me that whom one man is in Office and
another man comes here with certificate
for the same place that there must be
somelaw ofthat character, giving authority
for the appointment, and that should
have some reasons presented me why
should make up my mind as to the author
ity for such appointment. The point is
not whether | shall pass upon this bond
as to it's sutiicicncy-whethe it is $4,000
or not--but whether the man presenting
it is sheriff of Santa Fe county. / have
got the right to inform myself as to the
right Of that man to be sheriff 1t seems
to me that have got to hear argument
as to whether the governor had the right
to remove"
Judge Warren argued that one CO.
ordinate branch of the government should
pay due respect to the other, and that
when man presented commission
under the great seal of the territory the
district judge should recognize its anthem
ticity.
Judge Seeds, on its conclusion, laconi-
cally Remarked: proceed"
The hour of - NJ. having arrived the
court adjourned until 1:s0 p. N.
The court met according to adjourn