Albuquerque evening citizen., 1905-09-27
APPEALS CASE TO
SUPREME COURT
Counsel for HubbeII Not to
Abide by Lower Courts
Decision.
FULL TEXT OF OPINION

Late yesterday afternoon after
hearing the decision of the court
quashing the motion of counsel for 7.
S. Hubbeli for a peremptory writ of
mandamus to compel the district clerk
TO recognize Hubbell as sheriff and to
compel him to return to Hubbell the
jury venires which had been turned
over to Perfecto Armiio for service,
counsel for Hubbell filed motion for
appeal to the territorial supreme
court. The motion was granted.
The decision lust handed down rec
oguiZes Perfecto Armijo as prima IA
Gle sheriff of Bernalillo county and
entities him to perform all the duties
of the office, possession of the ofhce,
etc, until the title to the office shall
have been tried and determined at
proper proceeding at law. The courts
order, the appeal and opinion are as
follows:
The Courts Order.
Territory of New Mexico, County OF
Bernalillo, In the district court, t.
s. Hubbell, VS.. w. E. Dame. No.
6S75.
This cause coming on to be heard
on the alternative writ of mandamus
heretofore issued herein and the re-
turn of the defendant thereto, after
hearing arguments of counsel Messrs.
A. McMillen, w. B. Childers and E.
w. Dobson appearing for the plaintin
and Mr.. +. w. Clancy as amicus curiae
in opposition to the plaintiff, the court
taking judicial notice of the fact that
Perfecto Armiio has presented TO this
court the commission under the great
seal OF the territory of New Mexico,
signed by the governor Of the terri
tory of New Mexico attested by the
sigizture of the secretary of the terri
tory of New Mexico and dated Aug
ust 81, 1905, which recites that va
cancy exists in the office of sheriff Of
Bernaliilo county and states that the
governor appoints Perfecto Armijo as
the sheriff of said county and the
court being informed by the pleadings
that the said Perfecto Armijo has duly
qualified under said commission, doth
ind that the said Perfecto Armiio is
prima facie sheriff of said county in
possession of said Office entitled to dis
charge the duties thereof and to the
custody of all public property pertain
ing to said Office and that he is so en-.
titled until his right to said Office be
successfully assailed in a quo warran
20 or other appropriate proceedings in
court.
And the court also finds that the de
fendant in this case to whom the al
tentative writ is directed in his Off
cial capacity with reference to tht
subject of this proceeding derives hi
authority from the court alone. AM
therefore the said plaintiff Is not en-
titled to a peremptory writ of manda
mus herein
Whereof IL is considered by III
court that the said alternative writ G
mandamus be and the same is hereb
quashed and that defendant go henc
without delay and recover his costs
this behalf expended, to be taxed, an
that he may have execution thereto
against the relatOr herein, Thomas
Hubbel.
To which action of the court the T
lator by his counsel duly excepted al
prayed an appeal to the honorable S
preme court of the territory Of Ne
Mexico which is granted.
Judge Abbott's opinion in full is
follows:
Opinion.
These cases were heard together {
the pleadings. The principal questi'
involved is the same in each. The co
tentiOn of the plaintln and relator
that the executive order OF Augu
31st, 1905. referred to in the plea
ings, by which Miguel A. Otero, COVE
nor of New Mexico, undertook to
move him from the office of sheriff
Bernalillo county is invalid, tn
therefore there was no vacancy in u
Office and the appointment by the 90
ernOr Of Perfecto Armiio, the defen
ant, as his successor was of no fort
or effect. Further, he claims that ev,
II the governor had the power Of 7
moyal, he is the sheriff de facto in pc
session Of the Office and of the room
books and other property used In az
about the duties of the Office which
alleges he is discharging, and that
is the duty OF the courts TO prOte
him in such possession and in the
charge Of such duties until the defen
ant, ArmijO, shall have established h
title 10 the Office in a proper procee
ing in court. He asks, in substanS
that the respondent in the mandam
proceeding, the clerk OF this court.
ordered TO deliver 10 him for servi
all processes of the court viii
should be served by the sheriff Of {