Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1900-05-08

sist to the possession of the insignie
and appurtenances of an Office one whC
shows clear prima facie right to 1t
and that the only question proper to be
raised in the proceeding Is the question
whether sufficient showing of a prima
facie right has or has not been made
The question of the actual or ultimate
title is not an issue in the case, and nc
rival claimant may be permitted to de.
lay the relief sought by raising that Is.
sue. (Conklin VS.. Cunningham, Z N. M
445) II 1T be argued that this rule
which forbids full consideration of the
legal rights Of the respective parties
and refuses to go behind the prima ia
Gle showing adduced by the relator
may sometimes work injustice by eject
| ing from office one who Is actually and
lawfully in possession of 1t, and induct-
| ing into his place another whose title
thereto is defective and illusory, the an
sWer Is plain the object of the rule Is,
| solely, to secure the systematic and or
derly administration of government
| and not to adjust disputes of individ-
uals. In the great majority Of cases it
Is actually true that he who exhibits
the prima facie right has also the le-
gal title to the Office, and that his oppo-
nent Is an usurper In some cases this
is not true: and yet, even here, the gem
eral rule must be adhered to. tiiss.gh 1t
work temporary Individual hardship;
for were 1t to be departed from in one
case, 1t must be ignored in all; the spe-
cial value of the proceeding by manda-
mus-its rapidity-would be lost; the
relief by mandamus and quo warranto
would become, in all practical aspects,
the same; and there would be no agency
known to the law whereby in a grave
and critical emergency the implements,
paraphernalia and property of a public
office could be speedily delivered over
to the lawful incumbent. Such being
the principles applicable to the case at
bar, the question first presented to this
court for determination Is, Were the
facts, as alleged in the alternative writ
and as found by the court below, suffl-
cient to establish in the relator a prima
facie right to the insignia and appurte-
nances of the Office of territorial treas
urer? The court below found, as mat
ter of fact, that the said relator, ]. H.
Vaughn. was commissioned by the gov
ernor of the territory of New Mexico as
treasurer of the territory of New Mex
leo on the 23d day of June, 1899, and that
said Vaughn, as such treasurer took
the oath Of, office prescribed by law
therefor and filed the same in the Of
flee Of the secretary Of the territory, as
required by law; that the said Vaughn
also made and executed his bond to the
territory of New Mexico in the sum of
100000 as required by law. which bond,
with the sureties thereon, was approved
by the governor of the territory OF New
Mexico, and also filed in the office of
the secretary of said territory as re-
quired by law" Such being the facts,
1t is clear that the relator was prima
facie treasurer of New Mexico, If the
governor was invested with legal power
to make him such. (Conklin vs.. Cum
ningham, supra.)
1t is earnestly and ably contended by
counsel for the plaintiff In error that
the office involved in this controversy,
being a territorial Office the power Of
the governor to fill 1t by appointment.
without the advice and consent Of the
territorial council and during recess
of the council, Is, by section s of the
organic act of 1850, and section 1858 Of
the Revised Statutes of the United
States, limited to cases Of death or res
ignation, and that under no circum-
stances has the governor power to re-
move the treasurer and to appoint his
successor. Several decisions of this
court, besides numerous other authori-
ties, are cited in support of this conten-
ton. The question thus raised Is one,
however, which we do not feel called
upon to decide in the case at bar. Sec
ton 1858, Revised Statutes, United
States, is as follows:
"In any of the territories, whenever a
vacancy happens from resignation or
death, during the recess of the legisla-
tive council, in any Office which, by the
organic act Of any territory, Is to be
filled by appointment of the governor,
by and with the advice and consent Of
the council, the governor shall fill such
vacancy by granting a commission
which shall expire at the end of the
next session of the legislative council"
There are. then, at least two contin-
gencies, the happening of either of
which empowers the governor to fill the
office of treasurer during a recess Of
the council; one Of the death of the in
cumbent, the other Is his resignation.
Admitting, argument gratia, the force
of the suggestion that the respondent
could not be presumed to be dead in
this case. it does not follow that, for
the purposes of this proceeding. he
could not be presumed to have resigned
The facts that he had refused to vacate
the Office upon the demand of the re-
lator, and that he thereafter persisted
in such refusal, do not exclude the pos
sibility that his resignation had been
rendered to and accepted by the gov
ernor before the new appointment was
made. 1t must be borne in mind that we
have to deal with strict and technical
rule established for the public protec-
tion-a rule that is general and not to
be disregarded to suit particular in
stances. The presumption in favor Of