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

took the oath of Office subscribed there
on, but AYERS, in effect, that he did not
acquire any title to the Office or any right
to the possession of the property per-
tanning to the same; does not deny that
Cunningham received from the governor
a commission as sheriff Of said county,
but argues that it was not legal NUM-
ment comforting any rights upon the said
Cunningham. Respondent denies that it
was ever shown by satisfactory proof to
the governor that he had ever collected
various sums of money belonging to the
school fund and failed to pay over the
same within the time prescribed by the
section of the statute under which his
said pretended removal was attempted,
and alleges that he has never, at any
time, held or kept back any money be-
longing to the school fund, beyond the
time that the same was due and payable.
Respondent alleges that no charge was
made against him that he had so collected
and failed to turn over any school fund;
that no demand was made upon him for the
Office, and the books and property of the
Office of sheriff of the county of Santa Fe,
and that for the reasons recited in his re-
turn, he declines to comply with the re-
quirements of the alternative writ to de-
liver the said property to the said Gun
ningham.
The foregoing allegations of the re-
spondent are, in effect, though not in
terms, more affirmative than negative in
that they admit substantially the acts of
the executive and petitioner alleged in
the writ, and dispute their legal opera
ton, their effect by construction of law.
They are argumentative and consequently
faulty. To affirm that the governor was
without authority under the statute is to
argue that the statute is not in esse now;
to affirm that Cunningham is not prima
facie entitled to the Office of sheriff 10 to
argue that
HIS APPOINTMENT BY THE GOVERNOR WAS
INVALID.
Admissions accompanied with sugges-
tions that the petitioner derives no spe-
ciic rights from the facts are arguments
with traverses.
Whether the governor was empowered
by section ~, of chapter XIV, of the
acts of the legislative assembly, passed at
the Goth session thereof, to remove the
respondent, Conklin, from, and appoint
the petitioner to, the Office of sheriff of
the county of Santa Fe, involves con-
struction of said section and, it may be,
of other statutes. Whether the effect o.
the said executive orders was to create a
vacancy and substitute Cunningham for
Conklin; whether Cunningham became
the sheriff of said county upon giving his
bond and taking the oath of Office as such;
whether it became the duty of Conklln to
deliver the property of the sheriffalty of
Santa Fe county to Cunningham; whether
the said Cunningham was entitled to the
possession of the said books and other
property; whether Csnklin was entitled
to notice of the alleged deficiency and the
contemplated purpose of the governor to
investigate his accounts whether demand
should have been made by Cunningham
upon Conklin for the books and other
property incident to the said sheriffalty;
whether Cunningham possessed the quail
fcations for said sheriffalty, are
PROBLEMS FOR JUDICIAL DISCUSSION,
not issues of fact for the consideration OF
jury; and further they involve the legal
title and are not germane exception pro.
ceeding by quo warranto; and whether
the said Conklin did in fact collect school
funds and fail to turn them over in ac-
cordance with the statutory provisions,
is an issue, the adjudication of which
would determine the title to the Office in
question, and must therefore be remand
ed for consideration to the proceedings
in nm warranto 0tho Onlv lAua1 m ekhOd