Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1900-05-08
VAUGHN-ELDODT.
Continued from First Page.)

proceeding in the nature of a quo war
ranto We should be governed by quite
different principles; for that proceed
ing, las remarked by Bronson, j., in
People VS.. Vail, 2 Wend., II, reaches
beyond those evidences of title which
are conclusive for every other purpose,
and inquiries into and ascertains the alb
stract question of right" But the evil
dences of title referred to, of which a
commission in proper form issued by a
competent power is one, are conclusive
for every purpose, except when directly
assailed in the special mode provided by
law. Such a commission may not be at
tackled collaterally in a proceeding like
the present, the prime n only object
of which is to deliver the insignia and
belongings of an office to the person
prima facie entitled. The act of the
act of a ~canvassing board in issuing a
certificate of election, is judicial, or
quasi judicial, in character, and where
the appointment is within the scope of
he gubernatorial power, may he re-
viewed only in some appropriate pro-
ceeding brought for the purpose. Wood
vs. Peake, s Johns, 50; Wildly VS.. Wash
burn, 16 i'd, 40; The People ex rel. VS..
Seaman, 5 DEMO, 1897 Wood VS.. Peake,
supra, was an action of trespass
brought against Wood for the seizure
Of horses belonging to the plaintiff. The
defendant justified the seizure under an
execution and an appointment of him.
sell to be one of the constables Of the
county by three justices of the peace,
who had acted under a statute confer
ring upon them the power to make such
an appointment in case any constable
elected by the town should refuse to
serve, and his successor should not be
chosen at a special town meeting within
fifteen days after such refusal. Defend
ants warrant of appointment stated as
the ground of its issuance that one Lau-
renee, one of the constables Of the our
ty, had for more than fifteen days re-
fused to serve in his Office, and that the
town had not filled the vacancy. The
plaintiff proved that the said Laurence
had not refused to serve as constable,
as recited by the justices. and obtained
a judgment in the court below. The SUI
preme court, upon appeal, held that the
admission of this evidence Of the plant
if was error, and in reversing the judg-
ment said (p. ~:
This appointment Is a judicial act,
for the justices must first determine
and adjudge that there is a vacancy in
the office, and that the town has neg
lected to fill it. 1t is not traversable in
such a collateral action. The appoint
ment remains valid until it is set aside
or quashed in the regular course Upon
certiorari. y If two justices should
appoint him (the constable) it would be
a case in which no jurisdiction existed,
and the appointment would be null and
void. The distinction in the books is be-
tween the cases where the authority (of
the constable) proceeds from a source
having jurisdiction owe the subject
matter, and from one that does not. The
ministerial officer car justify in the n
case and not in the other"
In the People VS.. Seaman, supra,
which was a quo warranto proceeding
to determine election to office. the same
court remarked (p. 112): ut was held
in Wood VS.. Peake e John. Rep, 69),
sanctioned by Wildly VS.. Washburn GIG
ID, 49,, that such appointments by JUS
tices were judicial acts, which were not
to be questioned in any collateral pro-
ceeding between individuals. This is
sound doctrine, and is equally appllca-
BILE to the decision Of a board of can
vassers declaring the results of an cleo
ton to Office" In fact, we incline to the
opinion that an appointment may often
involve much more Of h judicial ele-
ment thar does the act Of adding up
election returns, which is "a mere me-
ty," as observed by the court in People
VS.. Head (25 ILL.,, 29O), or "a simple mat
ter of arithmetic" as remarked in Nor
gan VS.. Quackenbuch, % Barb, 70. See
generally: High OF FIX. Legal Rene
dies. sections 1875; Crowell VS.. Lam
bert, 10 Mimi, 369; Comm. VS.. Athern,
3 Mass, 1856; re Strong, petitioner, 20
Pick, 495; Ewing VS.. Turner, IS Pac.
Rep, 951; State ex rel. VS.. Churchill, Is
Mimi, ass; State ex rel. vs.. Sherwood,
Is Mimi, 221; People vs.. Head, rs ILL.,,
287.
1t follows that the action of the court
below in q%uashing those portions of the
respondents return which alleged the
possession and title of the Office to be
in him, and denied the power Of the
governor to make the appointment of
the r%elator, and in excluding the evil
dence offered by the respondent In sup
port of those allegations was proper
AS to the assignment of error based
upon the overruling of the respondents
motion for a trial by jury, we are con-
strained to the conclusion that the ac-
ton of the court below must be sus-
tanned. The same point was made with
out avail before this court, under cir
cumstances almost Identical in this re-
spect with those of the case at bar.
Conklin vs.. Cunningham, supra: 1.-THE
determination of the facts by a jury in
a mandamus case is not necessarily
preliminary to a valid judgment" In re
Delgado, $40 U. s., $50, 5S8.
There being no error in the record, the
Judgment of the court below Is affirmed.
Open day and night at the Bon-Ton.
carry the largest assert.
mRnf of CarnHfS. rims. art.