Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1894-09-12
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within its purview to determine the
LEGALITY of such claim. 1t affords the
proper remedy against an e1-official by
de facto officer having prima facie right
to obtain possession of the books, papers,
ETC., the property of the Office and
PRETENDED, RETENTION OF THE OFF ICE
by the late occupant will not Justify him
in Withholding such property with view
to compel resort to information in the
nature of quo warranto by a party pos
sessing the prima facie title. Rex v.
Chaplain, Wilson, 3O5. People v. Kill
duff, Is ILL.,, 1872. People v. Head, 25 ILL.,,
1876. Grow v. Lambert, 10 MINI. 1863.
1t is the inadequacy, and not the mere
absence of all other legal remedies and
the danger of a failure of justice without
it, that must unusually determine the
propriety of this writ. and it is not ex-
cluded by other legal remedies which are
not adequate to secure the specific relief
needed, nor by the existence of a specific
remedy in equity. IA Amer. & Eng. Ency.
clause 6, p. 1902 an authorities recited In
note 4.
In Attorney General vs.. Boston, 1873
Mass. AGO, it is said that when the officers
against whom the writ is sought have
clearly manifested a determination to
disregard their duty by refusing to per-
form the acts in question, the court is
not obliged to delay until the evil is doue
before granting the relief. See also
Brunswick VS.. Dave, So Ga. 8O3.
AS the legal title to the Office is not in
vo1vod ~, tho octiop NJ an1omua iaauna
of law upon which the title to Office de-
ponds can not be adjudicated in such
proceedings. The apparent right sub
sisting in the petitioner, determined by
the court in the issuance of the alterna-
tive WRIT the return of the respondent
must be restricted to the denial of the
statements of alleged facts contained in
the alternative writ, and traverses in
pleadings can not legitimately create
other issues than those of fact. A trav-
erse Of the law, being an exception to
the sufficiency of the law, is vicious, nor
can conclusions of law resulting from
statements of alleged facts in the alterna-
tive mandamus
BE DENIED OR ooNTRovERTED
by respondent in his answer. Facts, not
differences from facts, or arguments
thereon, should be alleged in the return
with distinctness and precision, and fail
ure to meet this requirement so i'm
peaches such pleading that it should be
abated for insuficiency.
By section 1000 of the Compiled Laws of
New Mexico, the pleadings in the pro-
ceedings by mandamus are limited to the
writ (alternative) and answer, and they
should be construed as pleadings in a
civil action, and the issues thereby Joined
shall be tried and further proceedings
had in the same manner as in civil ac-
ton. 1t is shown by the writ that the
governor of the territory of New Mexico,
on the 9th day of June, 1893, issued an
order removing Charles M. Conklin from
the Office Of, sheriff of the county of Santa
Fe, by virtue of authority vested in him
by statute duly enacted by the Legislature
of the territory, for cause shown by
proof satisfactory to him; that on the
same day he appointed and commissioned
William P. Cunningham to fill the va.
cancy occasioned by such removal; that
on June 80, 1898, the said Cunningham
executed bond as sheriff of said county
which was approved by the district court
of said county and duly filed; that he then
and there took the oath of Office and that
the said oath was incorporated in the
bond. 1t is alleged in said writ that
Cunningham by virtue of his appoint
ment by the governor became the sheriff
of the county of Santa Fe, entitled to the
Office and the books and property per-
tanning to the same; that it was the duty
| of Charles M. Oonklin to surrender and
deliver to Cunningham, as his successor,
the said property, of which he, the said
Conklin, had possession, and which he
had omitted and refused, and continued
to o.rit and refuse, to surrender to the
said Cunningham.
Respondent does not deny that the Or
ders Of removal and appointment were
issued by the executive as alleged, but
affirms substantially that the authority
for such action
DID NOT EXIST,
and that it was imperative to create a
vacancy or to fill it; does not deny that