Albuquerque evening citizen., 1905-09-27


plaintiff.
The claim for the defense is that
the governors commission held and
presented in court by the defendant
Armijo appointing him sheriff, under
which he had qualified as provided by
Jaw, entities him to recognition by the
courts of the territory until his title
shall be declared invalid in an appro-
pirate proceeding in court, and that in
these cases the court should not go be.
hind the governors commission. II is
conceded on both sides that the title
to the Office in question cannot be
/ tried in either of the cases at bar and
! that an action of quo warranto is the
! proper one in which to try it.
Before the beginning of these ac-
tons it had become necessary for the
| court in order to the seasonable SER
vice of the jury venires for the term
| of court for Bernalilo county begin
| ming September IS, to determine to
which of the two claiming to hold the
Office of sheriff, the venires should be
issued for service. Counsel represent
ing them were invited to address the
court on the question and did so. The
conclusion reached by the court was
that the governors commission was
| prima facie entitled to full faith and
credit, as the act of one of the three
coordinate branches of the govern
ment of the territory. And the venires
were according issued to Perfecto Ar
| milo, the holder of the commission.
In re. Parsons, $50 u. S. Reports
! 15O; 81 Federal Rep. 293 appears to
be conclusive authority for the course
there taken.
II was not intended by that action
to PREJUDICE the ultimate rights of the
parties, but only to provide that the
necessary business of the court be not
hindered or delayed.
In the orderly consideration of the
cases at bar the first inquiry is wheth-
er the court can or should pass on
the validity of the governors action in
creating or attempting to create a va
cancy in the Office of sheriff, by re-
moving the plaintiff, Hubbell. AS it
was claimed by his counsel that this
court should so act in order to a prop
er decision of the cases at bar very
able and exhaustive arguments were
made by them against the validity of
the executive action. Counsel for the
defendants claiming that the court
should not, in either of these cases in
quiIe into the authority of the COVER
nor in the premises. directed their ar
guments mainly to that point. No de-
cision can be made on that question in
these cases, which would be binding,
even on this court in a quo warranto
proceeding to try the title to office. 1t
would be Idle therefore to make such
a decision unless it is the duty of the
court to do so. After very careful
consideration, am of the opinion that
this court should take no opposite
course in conformity to the authority
of Conklin VS.. Cunningham, New
Mexico Reports, AS, and Eldodt VS..
Territory of New Mexico. 10 n. NJ,
141, and that the defendant, PerfectO
Armiio, is by virtue of the governors
commission and his due qualification
Hereunder entitled to act as sheriff
until his title shall have been directly
and successfully assailed in a quo
warranto proceeding.
In Eldodt VS.. Territory, supra. the
court says: But the evidences of title
referred to, If which a commission in
! proper form issued by competent ap-
pointing power is one, are conclusive
| for every purpose, except when direct
| ly assailed in the special mode provid-
| ed by law. The act of the
governor in appointing to Office
where the appointment is within the
| scope of the gubernatorial power, may
be reviewed only in some appropriate
proceeding brought for the purpose"
This the court declares to be a rule
of procedure, which ii has adopted on
grounds of public policy and in ac-
cordance with established principles
of law. 1t is urged in behalf of the
plaintiff that this rule is subversive
of the right of the incumbent of an Of
| fee to retain possession of it, and Of
| any public property pertaining to or
/ in use by him in connection with it,,
and be protected by the court in such
| possession until the one elected or ap-
| pointed to succeed him shall have es-
/ tablished his title in court. The rule
! laid down by our supreme court may
well be thought better founded in rea-
son than the one which it is claimed
ii subverts. The Office of sheriff does
not now, however, it may have been
in former times, consist in or depend
on the possession of any particular
insignia, buildings, room, books, or
other material things whatsoever. The
moment the governors act of removal
was complete, Thomas S. Hubbell
ceased TO be sheriff, If that act was
valid, and when the governors com
mission had been issued to PerfectC
Armijo and he had qualified as requir
ed law, then, If the the executive ac
tion was valid, ne was sheriff in pos
session of the Office itself, and in thai
sense de facto sheriff. On the theor,
! of the plaintiff and relator, any Off
Ger, once in, could remain in office in
definitely through the delays inciden
= to judicial proceedings, disregardeC
elections or appointments to the Offic,
e he had determined to hold. The powe
I OF summary removal for malfeasanc,
in Cthce, so essential to executive ei
g tciency, would thus be made of no ei
n feet. Such in substance is the rea
d sonlng of the court in the Eldodt case
II In principle it. is not, in my opinio
8 uistinguishable from the cases at bal
and remains a controlling authorit
T. on this court for the disposition {
ID these cases. In so deciding as befor
IL minated, ! do not pass upon tn
W question Of the governors power {
removal in such cases or undertake {
Is determine whether the charges @
which he based his action are we
founded, but only that the cOmmissiC
IN of the executive creates a presumptiC
IN in favor OF its holder. which can I
n overcome only in an action in whiC
Is the title TO tGe Office he claims can
81 tried