Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1900-05-08
YAUGHN-BLDODT
Opinion Of the Supreme Court Up
holding Writ Of Mandamus
Granted.
JUDGE M'FIE IS SUSTAINED
Decision In Re Oonklin Versus Cunning
ham Governs Here-An Able and
Strong Opinion Delivered By
Judge Orumpaoker.

territorial supreme court, delivered
through Associate Justice ]. w. Crum
packer in the case of Samuel Eldodt
plaintiff in error, VS.. the Territory e2
rel. John H. Vaughn, defendant in err
ror, the judgment of the lower court be-
ing affirmed:
SYLLABUS.
One who possesses prima facie title tt
an office may compel delivery to him
self Of the books, papers, seal and othel
property, insignia and paraphernalia Of
such office, by a proceeding in manda.
mus; and the question of the actual OF
ultimate title to the office may not be
raised in such proceeding, but must be
reserved for an appropriate proceed
ing brought directly for the purpose
(Conklin VS.. Cunningham, N. NJ, 445
followed.)
strong prima facie presumption is
indulged in favor of the legality and
regularity of the acts of the executive
and, where it appears that the govern
or has undertaken to appoint to an Of
flee which, under a certain state OF
facts, he is empowered to fill, it will be
presumed, in the first instance, that the
requisite facts existed at the date of the
appointment, and that the appointment
was regular and valid. Following
Conklin VS.. Cunningham, supra.
On March g. 1897, Eldodt was appoint
ed treasurer of New Mexico by the gov
ernor, by and with the advice and con-
sent of the legislative council, to hold
Office for two years and until his sue
cessor should be appointed. On June %,
1899 (the legislature for that year hav-
ing adjourned without the confirmation
by the council Of any nominee to the
said off1ce), Vaughn was appointed and
commissioned by the governor to be ter
ritorial treasurer. Vaughn then having
qualified in the form prescribed by stat
ute, and Eldodt having, upon demand,
refused to deliver to Vaughn the books,
papers, seal, insignia and parapherna-
liza Of the Office in question, held that
Vaughn was, prima facie, treasurer Of
New Mexico, and entitled to the imme-
diate possession Of the aforesaid be-
longings and appurtenances Of the Of
fee, and that mandamus against Ell
dodt was a proper remedy whereby to
vest such possession in Vaughn. Fol-
lowing Conklin VS.. Cunningham, supra.
STATEMENT OF THE FACTS.
On July 6, 1899, ]. H. Vaughn the re-
lator, filed In the district court for San
ia Fe county petition, alleging his ap-
pointment, on June %, 1899, by the gov
ernor of New Mexico, to the Office of
territorial treasurer, and his due quail
fication, and praying for an alternative
writ of mandamus against Samuel Ell
dodt, the respondent, requiring him to
surrender to the relator all the insignia
and paraphernalia of the Office Of treas
urer, then in Eldodt's possession. There
upon the alternative writ issued.
On July II, 1899, the respondent filed
an answer or return to the writ, of great
length, wherein he denied specifically
and generally the several allegations of
the writ.
Upon motion of the relator the court
made an order striking out and quash-
ing the greater part of the return, per-
mitting only such portions as traversed
the allegations of the writ touching the
appointment and qualification of the
relator to stand. To this ruling the re-
spondent excepted. A motion by the re-
spondent that the issues raised by the
pleadings be submitted to a jury was
overruled. and the cause came on for
hearing before the court. The respond
ent then offered evidence to sustain the
several affirmative allegations of his re-
turn concerning his own appointment,
qualification, ETC., all of which was ex-
cluded, over his exception. and the
court gave Judgment, finding the facts
to be as stated in the alternative writ,
and adjudging the relator to be "prima
facie treasurer of said territory, and, as
such, entitled to the immediate possess
sion of the insignia, paraphernalia
books, furniture and other articles per-
tanning to said office" Motions for a
new trial and in arrest of judgment
having been overruled, the peremptory
writ issued, July IA, 1899. and, in COM
pliance with the command thereof, the
respondent gave over everything apper-
tanning to the Office of treasurer to the
relator.
OPINION. ".
Where one has received an appoint
ment to public Office from the author
ity invested with power to make such
an appointment, and has duly qualified
in accordance with statutory require.
ments, the law will presume, in the first
instance. that the appointment was le'
gal, and that the appointee Is the right
full incumbent of the Office designated
in the appointment; and 1t will, upor
his application, assist him to the pos
session of the insignia, paraphernalia
and everything appertaining to the Of
fee. The functions Of the writ in sucf
cases are narrow, but they are of vas
Importance in the orderly admintstra
ton Of government; and 1t is in thi
very narrowness that the peculiar pow
er and efficacy Of the remedy are found
ed. There must be some means afford
ed by the law whereby officials, legal!
created and qualified, may be enabled
to enter. without delay, upon the per
formance Of the duties which the lay
requires and the welfare Of society de
mands that they fulfill; otherwise, tn
course Of public administration must b
constantly obstructed and Its regulari
ty and usefulness greatly impaired.
is, therefore, the established rule In thi
Jurisdiction that mandamus lies to as