Albuquerque weekly citizen. (Albuquerque, N.M.) 1891-19??, 1905-09-30

necessary business Of The court be not
numbered or delayed.
In the orderly consideration ot thc
cases n, bar the nfst Inquiry "a whcih.
ar the court can or should pass On
the validity o. the governors action -
creating or attempting "a create va
cancy IN the ONCE % sheriff. BY r.
moving The plalntln. Hubbeli - n
was claimed by his counsel thar THIS
court should 20 act IN order 10 props
er decision Of the cascs a, bar. very
able and exhaustive arguments we're
made by Thorn against the validity %
the executive action. Counsel for the
defendants claiming that the court
should not. IN either Of these cases in
quli into the authority of the COVER
noe IN the premises, difett1i tAair ar
rnments mainly TO that point. No de-
clsl0n can be- made on thRt question In
tboee cases. which would be hitdlng,
even ON this court IN a ouo warranio
proceeding 20 try the title 10 Office. L
would be- idle Therefore 20 make such
n dociaion unless II Is the duty Of the
court 10 do 10. After very careful
consideration. I am 81 the opinion that
this court should take no opposite
course IN conformity so the authority
Of COnklin vs.. Cunningham, 7 New
Mexico Reports. iit. and Eldodt ~.
Territory ~ New Mexico. 10 n. NJ.
tti. and that the deicn' ant, Perfecto
Armlio. a by virtue of ,Ao governor
commission and his due qualification
Hereunder entitled 20 act az sherln
until hla title shall have beer directly
and successfully assailed IN a quo
warranto proceoding.
IN EldOdi Va Territory, supra, the
court says. hut the evidences OF title
referred 10. II which a commission IN
proper form issued BY competent ap-
pointing power Is ono. are conclusive
for every purpose. except when direct.
~ assailcd IN the special mode provid'
ed by law. The act Of the
governor In appointing 10 ONCE
where the appointment IL within the
scope OF the guhernatorlal power, may
b0 reviewed only IN aome appropriate
proceeding brought for the purpose
This the court declares to be . rule
OF procedure. which Il has adopted on
grounds OF public policy and In &C
cordaDce with established principles
OF law. I, "a urged In behalf Of the
plalntiif that this rule n subversiye
OF tho right OF the incumbent Of an OF
Gee TO retain possession OF H. and Of
any public property pertaining 20 oi
In use hy him In connection with n
and ba protected by the court In suci
possession until the one elected or AZ
pointed 10 succeed him shall have es
tablshed his title IN court The rul'
laid down by our supreme court ma
well be thought better founded IN rea
son than tho one which il Is claimed
II subverts. The once of sheriff doe
not now, however, it may have beef
IN former times. consist In or depcnl
on the posHesHicH of any particula
insignia, buildings, room. books, o
other material things whatsoever. tn
moment the governors act Of remova
was complete. Thomas y. Hubbe
ceased 10 be sheriff, n that act wa
valid, and when the governors con
mssston had been issued 20 Perfect
; Armlio aud he had qualified ~ rcquii
cd law, then, Il the the executive az
3 ton was valid. hv was sheriff In POI
session Of the ofllco itself. and IN tn
! sense do facto sheriff. On the theoI
OF the plaintlff and rclator. any on
cct. once In, could remain In Office Il
: definitely through the delays incideI
20 judicial proceedings, disregarde
, elections or appointments 20 the oilic
I he had determined TO hold. Tho pOws
! OF SUMMARY removal for malfoaaane
! Ia CfIlce, 80 essential 10 executive 9
! fclency, would thus be- made OF no q
4 feet. Such In substance u the re
r soning OF the court In the EldOdi cas-
!. In principle n ls not. In my opinlr
digtlnguishable from the cases az ba
!. and remains a controlling authorli
A on THE court Tor the disposition
4. these cases. IN 80 deciding as befo
I minated. I DO not pass upon q
question OF the governors power
q removal Ia such cases or undertake
determine whether the charges (
which he based his action are w
=, founded, bur only that the commlssi,
: of the executive creates n presumpti'
IN favor Of itE holder. which can
! overcome only In an action In Whit
4 the title 10 the Office he claims can
= triod.
:. There Is another ground on whit
4. the writ Of nnnCnmus should, IN n
y opinion. be Quaehec. namely the la
II OF a propc- party defendant. The
"a sEondeni " thp recording officer
!. this court; he has no authority 70
A. sue or withhold the processes IN Gus
u tlon 70 save as directed by the cou
n ana no responsibility FOR WL4t he
3. does BY direction Of the court. A W
a. Of mandamus 10 him In this ca
4. would. therefore IN effect, be dire
"a Cd 20 the court Itself