Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1894-09-12

such proceedings are not ordinary actions
at common law, and that the relator is
not entitled as a matter Of right to trial
by jury, and that it rests in the sound
discretion of the court to award such
trial.
In 6S Mich. 1923, Frey v. Niche, it is
declared that trial by jury is An absolute
right in quo warranto case and may be
granted in mandamus proceedings, yet
the trial, in many respects, Is not like a
common law jury trial on an issue upon
the information and regular pleadings.
That the executive
ACTED WITHIN THE LIMITS OF HIS AU-
THoRITY
is conclusive presumption in this pro-
ceeding; that he was authorized by the
statute to remove for causes specified in
the section under which he acted and to
appoint to the vacancy and issue his
commission, are not less indisputable
legal conclusions in this action; and that
Conklin ceased to be sheriff by the one
executive ordor, aud Cunningham bocamo,
prima facie, such official, by the other, is
the laws operation, SO pronounced that
it can not be controverted, except in an
action contesting the legal title to the
Office. The three departments of our
60 'ernment, legislative, executive and
Judicial, though coordinate, are distinct,
and within their respective lines, separate
and independent, and within their pre-
scribed scope, absolute. In the exercise
of the powers confded to his discretion
and in the performance of the duties i'm
posed upon him, the executive is in
dependent of the judiciary, and presump-
lively his acts are within the limitations
of his authority and must be recognized
| by the judicial tribunals. Prima facie,
legal exercise of executive authority, and
the appointment of Cunningham consti
tuted commission that was evidence,
prima facie, that he was lawfully entitled
to the sheriffalty, and imposed upon the
contestant the burden of showing better
title by an action in the nature of quo
warranto. rs ILL.,, 1926. Al Mo-, 247. 8
Pac. Rep, 1877. 50 Ala, 500. IA Amer. &
Eng. ENJOY, clause 8, p. 143 and citations
there made.
An appointment to Office by the ex-
ecutive is complete upon the delivery of
the commission. Cranch U. s., Mar
bury Y. Madison. Wetherbee v. Cazneau,
20 COL, SOB.
We think that when the governor APP
pointed and commissioned the plaintiff
he gave him prima facie title to the Of
fee. rs ILL.,, 1926.
The commission of the governor when
issued must be taken at least as prima
facie evidence that the person holding it
is lawfully entitled to the Office. Al Mo-,
247.
The powers of a governor are executive,
not judicial, and they must be
EXERCISED PROMPTLY TO BE EFFEcT1vE.
Notice to defaulter Is invitation to re-
pair deficiency with view to retention
of Office. To afford opportunity to make
good delinquency is to protect the vio-
lator of trust and to supplant summary
action by Judicial investigation. The
impending penalty of removal is to deter
breach in Office and to encourage fidelity
and promptness in the discharge of
its duties. Trial is not an exc
cutive function and its assumption would |
be the emasculation of executive efficiency. |
The section under which the governor |
proceeded is mandatory and directs sum-
mary action, quick execution, and that it
is impracticable to attain such result |
by the dilatory process of charges and
defenses is manifest. A summary end by |
prolix means is an impossible achieve !
ment; so inconceivabls is the rapidity in |
tho redress of wrongs, by tedious and |
vexatious remedies, that it is not legiti-
mate to impute such contradiction to the
unless it shall appear in ex-
press terms, and the omission of any
requirement of notice from the provi-
sions of section ~ must be regarded as
the expression of an intention that notice
should not be an essential to its enforce
ment. The examination of
THE ACCOUNTS OF THE SHERIFF
and the finding that he has not accounted
for monies of the county as required by
law and that he was in arrears with the
county and removing him from Office 10
not isdicial action aud does not require
due process of law. But whether notice
to the respondent was legal require
ment is essentially an issue for judicial
inquiry and determination. Donahue vs..
County of Well, 100 Illinois pcs.