Bd. of Com'rs of Guadalupe County v. Dist. Court of Fourth Judicial Dist.

• Decision Date: 17 January 1924
• Docket Number: No. 2911.,2911.
• Citation: 29 N.M. 244,223 P. 516
• Parties: BOARD OF COM'RS OF GUADALUPE COUNTY, SITTING AS COUNTY BOARD OF FINANCE,v.DISTRICT COURT OF FOURTH JUDICIAL DIST. ET AL.
• Court: New Mexico Supreme Court

29 N.M. 244

223 P. 516

BOARD OF COM'RS OF GUADALUPE COUNTY, SITTING AS COUNTY BOARD OF FINANCE,

v.DISTRICT COURT OF FOURTH JUDICIAL DIST. ET AL.

No. 2911.

Supreme Court of New Mexico.

Jan. 17, 1924.

Syllabus by the Court.

A writ of prohibition is available, ordinarily, only in case an inferior court is proceeding without jurisdiction, or in excess of jurisdiction.

Section 3416, Code 1915, authorizing a peremptory writ of mandamus in the first instance, and ex parte, against a board or officer under the circumstances enumerated in the section, does not violate the constitutional provisions for due process of law, and a district court, proceeding under this statute, has jurisdiction to decide whether the case is one in which a peremptory writ is authorized or not.

Section 19, c. 43, Laws 1917, furnishes an adequate remedy for an erroneous judgment in mandamus, and a writ of prohibition will not ordinarily be issued to a district court for that reason.

Where the jurisdiction of the district court has been challenged by a proper motion, and such motion remains undetermined in that court, a writ of prohibition will not ordinarily be issued by this court.

A voluntary appearance in a mandamus proceeding after the issuance of a peremptory writ, setting up a defense on the merits, is a general appearance, and places the party in the same position as if he had been served with process and had defaulted.

Section 2 of article 7 of the state Constitution merely enumerates the personal qualifications and characteristics of persons who are entitled to hold public office, and does not prohibit the Legislature from requiring bonds of officers as a condition of their being inducted into office and exercising the functions thereof.

Additional Syllabus by Editorial Staff.

The word “qualified,” as used in section 2, art. 7, of the Constitution, providing that every citizen who is a legal resident and elector shall be qualified to hold any office in the state except as otherwise provided, is equivalent to the word “eligible,” and is designed to point out the class of persons who are eligible to be chosen to hold office, and does not attempt to deal with the manner in which these officers shall qualify before entering upon the discharge of their duties.

Proceedings by the Board of County Commissioners of Guadalupe County, sitting as the County Board of Finance, against the District Court of the Fourth Judicial District, and another, as Judge thereof, for a writ of prohibition. Writ discharged.

Bratton, J., dissenting.

A writ of prohibition is available, ordinarily, only in case an inferior court is proceeding without jurisdiction, or in excess of jurisdiction.

Fleming & Neal, of Santa Rosa, for petitioner.

O. O. Askren, of East Las Vegas, for respondents.Mechem & Vellacott, of Albuquerque, F. Faircloth, of Santa Rosa, and E. D. Tittman, of El Paso, Tex., amicus curiæ.

PARKER, C. J.

On December 12th a petition for a writ of prohibition was filed in this court, seeking to prohibit the district court of the Fourth judicial district, and D. J. Leahy, as judge of said court, from further action in a mandamus proceeding hereinafter to be noticed. We issued an alternative writ of prohibition as prayed, returnable on December 20th. On said day there was filed and presented a demurrer to the petition for the writ, setting up four grounds of alleged insufficiency, as follows:

“(1) That the petition does not state facts sufficient to warrant the issuing of the writ of prohibition, for the reason that it appears from the petition that the respondents have jurisdiction both of the subject-matter of the proceedings complained of and the parties thereto.

(2) That said petition fails to state facts which show that the petitioners have no other plain, speedy, and adequate remedy in the ordinary course of law for the protection of their rights.

(3) That said petition shows that an objection to the jurisdiction of the trial court was made and remained pending and undetermined.

(4) That said petition fails to state that an application to the trial court for a decision that it has no jurisdiction had been refused.”

The proceeding in which action was sought to be prohibited was a mandamus proceeding, brought by the state on the relation of one Simon Serrano, treasurer of Guadalupe county, against J. W. Melaven, J. L. Ambercrombie, and Vic Segura, as members of the board of county commissioners and ex officio board of finance of Guadalupe county. It appears from the petition that the National Surety Company, which had theretofore furnished bond for the relator, had notified him of the cancellation of his official bond within 30 days after November 3, 1923, and that on December 3, 1923, he filed an official bond with the county clerk of Guadalupe county in the sum of $75,000 as required by law, with personal sureties thereon. On December 4, 1923, the board of county commissioners of Guadalupe county met as a board of finance for the purpose of examining and approving said bond. Upon said examination of said bond by said board of county commissioners, sitting as such board of finance, they objected to the financial statement of several of the sureties on said bond, and gave the relator until 9 o'clock the next day to bring in all of said named persons and to correct their respective financial statements; that at 9 o'clock the next day, in accordance with the order of said board, the relator had all of said persons present to make the corrections in their respective financial statements, as required by said board; that said board at that time refused to allow the said named persons to make the corrections previously required by said board; that all of said corrections requested of said named persons by said board were of minor importance; and that all of said sureties on said bond were the owners of real estate in New Mexico, and taxpayers for more than double the amount for which they had qualified on said bond, over and above all of their debts and liabilities. The board thereupon refused to approve said bond, and entered a resolution reciting that the relator was without bond, and that it was necessary that some person under bond and responsible should be at all times in charge of the office, and that said J. W. Melaven, a member of said board of finance, was appointed until the further order of the board to supervise the office of relator as treasurer of Guadalupe county, and that each depository bank where public funds were deposited was instructed not to honor or pay any checks drawn after December 2, 1923, until further notice from said board of finance.

It was further alleged that the action of said board of county commissioners, sitting as said board of finance, was arbitrary in refusing to approve said bond and allow the corrections to be made that were requested by said board, and that, by the action of said board in refusing to approve said bond, the said board was endeavoring to remove the relator from his said office for the purpose of appointing another person in his place as said treasurer of Guadalupe county. The resolution of the board of county commissioners further provided that the relator should have twenty days from the 4th of December within which to perfect his bond.

A peremptory writ of mandamus was issued upon this petition, commanding said board to approve the said bond, and directing said board to make known before the court at chambers at Las Vegas on the 10th day of December, 1923, how they had executed the writ.

On the 8th day of December the board of county commissioners appeared in the mandamus proceeding, and filed therein a motion to quash the writ, or to modify the same so as to permit the respondents to answer and be heard on the merits. The motion set up that the said district court was wholly without jurisdiction to issue a writ of mandamus requiring the approval of the bond of the said treasurer; that the said district court and judge had no power to issue a mandamus against said board, for the reason that both the said judge and the said board were required by statute to approve the same bond (this objection seems to have been abandoned, as it is not argued before us); that the said board had a valid and legal defense to the petition of the relator, in that in truth and in fact the bond referred to was wholly insufficient, in that the signers and makers thereof are not as a matter of security worth the sum of $75,000 but, as the said board honestly believed, and, if given oportunity, was ready to offer proof, they were not worth to exceed the sum of $50,000; that many of the sureties on said bond did not justify or qualify, as is by law required, and did not make true and correct answers to the questionaires submitted as to their true worth, as is by law required; and that said bond was signed by a county officer of Guadalupe county as one of the sureties, contrary to the laws of the state.

The board thereupon asserted their honest belief in all of the foregoing facts, and offered, if given opportunity, to make and furnish proof thereof. They further alleged in said motion that said writ of mandamus was issued without notice to them, and that they learned the previous day of the issuance of said writ, and had had no opportunity to be present, or to present a defense before the issuing of said writ.

Upon the presentation of the motion it is alleged that the district judge asserted from the bench that the court had jurisdiction of the cause, but that he did not make any order either sustaining or overruling said motion, but notified the said board to be present in obedience to said writ of mandamus at 2 o'clock on Monday, December 10, 1923.

[1] 1. It is to be conceded that a writ of prohibition is available, ordinarily, only in case an inferior court is proceeding without jurisdiction, or in excess of jurisdiction. In State v. Medler, 17 N. M. 644, 131 Pac. 976, Ann. Cas. 1915B,...