Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1894-09-05
1t was suggested to the court that the

|
penitentiary be named az the place of i'm
| prisonment instead Of the jail, on account
of the condition of the latter. This
came in the nature of request from Mr.
N. B. Field, representing Mr.. Clancy,
and Mr.. Catron, representing Mr.. Spices
and the county commissioners. The
court announced that the matter would
be taken under advisement and decis-
ion rendered to-day. While this question
was under consideration sentence was Or
dered suspended. Messrs. Spiess and
others spent their. time in winding up
their private matters last evening, and
the night was quietly passed beneath the
roofs that have. sheltered them for many
months. This morning they were in the
custody of Sheriff Cunningham pending
the decision of the court as to the place
of confinement. At the meeting of the
supreme court this morning there was no
action taken upon the matter as none of
the defendants were present. Court ad
iourned over to this afternoon when
the orders heretofore made were so m obi
fled as to commit the defendants to the
penitentiary, the cost of imprisonment
to be paid by the territory.
Much desire has been expressed to see
the opinion of the court in rendering a
decision in these cases, and accordingly a
syllabus is given below:
IN CLERK oLANoY's CASE
the decision first recites the facts as fol-
| lows:
at appears that Hon. N. G. Collier,
! subscribing his name as an associate us
tice of the supreme court of the territory
of New Mexico, issued an order on the
18th day of November, 1898, to H. s.
Clancy for a writ of prohibition against
the county commissioners, of the county
of Santa Fe, and that the said clerk de-
clined to obey said order upon the ground
that the said associate justice had not
filed his commission and oath of office
with said clerk and that said clerk was
not officially advised that the said as
sociate justice had duly qualified SO as to
entite him to act in said ca pacity. 1t is
not recognized by this court that the
clerk was authorized to make any in
quirY into the authority of the associate
justice to exercise the authority assumed
by him nor can it regard the action of the
clerk as less than grave imputation
upon said justice, as it can not be con-
ceived that the associate justice was
capable of exercising the powers of his
high office without com pliance with all
the conditions requisite to acquire due
authority"
The court then goes on to refer to the
indsputable presumption which always
exists that person acting in an official
capacity is the officer he assumes to be
aud that Mr.. Clapcys action had the
effect of "imp eaching the good faith of
LAWYER OF HoNoRED PROMINENCE"
as he knew Judge Collier to be. The
court further says that the clerks refusal
to issue the writ after receiving a tele-
gram from the chief justice that he would
be fully protected, was an aggravation of
the offense. The clerks contention that
Judge Collier should have filed with him
his commission and oath of Office is not
borne out by the facts. 1t appears that
Judge Lee, Judge Golfers predecessor
in Office, did not do SO; neither did Judge
Reeves, nor Judge Fall, of the present
bench.
The court then adds that it does not
fail to attach due consideration to the
clerks denial of any intended disrespect.
Judge Blatchford, late distinguished
member of the United States supreme
court, says, however, in Federal Report
err, page 366, "what they did is not the less
legally a contempt because they did not
think they wereinfringing or were advised
they we're not. Any question of animus can
bear only on the extent of punishment"
The court then proceeded to announce the
penalty as published yesterday. The
OPINION AS TO MR.. sPIEss,
after reciting the facts, states that it can
not be tolerated that a person enjoying
the privilege of practicing law before
| this court can disregard its order be-
cause the clerk has not gone through the
technical act of issuing writ; as he
knew that member of the court had
taken action on the subject it was his
duty to have advised obedience to tho
order, even in the absence of the formal
writ. The case of King VS.. Barnes, N. Y,
2 Northeastern, 1872, is cited to show that
the taking advantage of delay in the
formal completion of the order through
the improper conduct of the ministerial
officer" is contempt. In passing sentence,
| takes into consideration Mr.. Spiess dis
claimer of disrespect.
In the
CASE OF THE COUNTY COMMISSIONERS,
the court called attention to the fact that
the commissioners ignored their legal
adviser, District Attorney Crist, and the
statement of Judge Warren as to the pur-
port of the order; and preferred instead
to take the advice of Mr.. Spices for the
purpose of avoiding the possibility of an
opinion adverse to their disposition to
proceed Myers VS.. State (Ohio) 2 N. E. 43
is cited to show that professional
opinion to the effect that the act is not
contempt does not change tho character
of the defendants act or relieve them
from the penalty therefor.
| 1t was further announced that the
declaration of the commissioners that
they did not intend contempt was
duly considered by the court in passing
| -.