Albuquerque weekly citizen. (Albuquerque, N.M.) 1891-19??, 1903-06-13

nature bI quo WdIHHtp, lustlluttu ID!
the attorney general through special
counsel. upon the relation of w. x.
Waterman, governor OF the State of
California, against A. G Freeman. to
test his right 20 hold the Office Of
trustee of the state library under and
by virtue Of Pol. Code Cal. section
2292." II was contended upon the part
Of the relator. that the appointing to
Office was intrlnsically, essentially and
exclusively an executive function. and
therefore that II could not be eXer.
cised by the Legislature On the part
OF respondent II was contended that
there Is a specific provision in the con
stltution permitting the legislature to
thus appoint. citing section Of ar
tlcle 20 Of said constitution. when
reads as follows: "All Off Ii.ers or
commissioners whose election or ap-
polntment is not provided for by this
constitution. and all officers or com
missioners whose Offices or duties may
hereafter he created by law shall be
elected by the people or appointed.
as the legislature may direct" The
supreme court In passing upon this
had not only been decided in other
states OF the union under constitutions
containing provisions substantially
equivalent to the sections above ouot.
ed from our own. that the LEGISLATURE
could fll offices by itself created but
N
Identical provisions OF our own con
stitution had come 10 the same con
cluslon." From a careful perusal Of
this California case. II will he seen
that the court clearly and distinctly
sets ont the three departments Of gov
ernment and discusses whether or not
section 4 OF Art. 90 OF the constitution
lnfringed upon the executive depart.
ment. After holding that It did not
II then finds that the legislature may
nll offices by itself created. This
seems TO have a very close resemb-
lance TO the case under consideration.
Section 1857 supra. has the same re-
lation to New Mexico as section 4. ar.
ticle 20 Of the constitution of Califor-
MIA has to the State OF California, and
II will be observed that said section
provides, that all officers or commis-
sioners whose election or appoint
ment Is not provided for by this con.
stitution and all officers or commits
sioners whose Offices and duties may
hereafter be created by law. shall he
elected by the people or appointed as
the legislature may dinrect." You will
observe that section 1857. II. s.. supra
provides THAT all county officers shall
be appointed or elected in such man.
ner as may be provided by the COVER.
nor and legislative assembly of each
territory" They are strikingly simi-
lar. there being no provision in all the
laws establishing the Territory of New
Mexico or acts of congress since then,
that provides for a single county Of
fcer or the filling of single county
Office, but leaves II to the legislative
power to appoint or elect, In Cali.
fornia. under the said section of their
constitution, such officers as under the
provision may he created shall be
elected by the people. or appointed,
as the Legislature may direct; and
there II is held that officers elected
or appointed by the legislature itself
under such a provision were not elect
ed or appointed In conflict with the
constitution In all the law hereinbe-
fore cited there Is no express provis.
ion for filling vacancies in county Of
fees. In the power to create an Of
fee. is implied the power to fll the
office. II would be mere folly to grant
the power to create with no means pro-
vlded for the filling OF such offices
that no one will contend but what
there Is a power somewhere 70 NIL a
vacancy in an office that has been ere
ated by the legislative power of the
territory. II certainly cannot be con
tended that there is any power except
first instance to provide the manner
and means OF filling all Offices OF the
kind and character in question here.
We have cited authority for the Gre
atlng OF new counties in the territory.
This. OF course. implies the authority
10 change the old counties. So. when
SandOval county was created the act
creating II interfered with Bernalillo
county. both as TO territory and as 10
It's officers. II created the vacancies
of county commissioners In Bernalillo
county. The contention and issue In
this case is. how. or by whom shall
the said vacancies be filled; or. more
tersely expressed had the legislative
power OF the territory authority to
MI these vacancies? II the authority
to MI county offices was vested in the
Legislative power OF the territory by
congress. as expressed in said section
1887 n. s., supra, II was the duty OF
the Legislative power comprising the
governor and the legislative assembly,
10 al said vacancies. or II must dele
gate that power either To the people
TO elect, or to the governor, or to some
one else. 10 appoint. or such vacancies
must continue. Neither the governor
nor the people have inherent mower. or