Conklin v. Cunningham
| Decision Date | 03 September 1894 |
| Citation | 38 P. 170,7 N.M. 445,1894 -NMSC- 005 |
| Parties | CONKLIN v. CUNNINGHAM. |
| Court | New Mexico Supreme Court |
Error to district court, Santa Fé county; before Justice Seeds.
Mandamus on the relation of William P. Cunningham, against Charles M Conklin, for the books and property pertaining to the office of sheriff of Santa Fé county. From a judgment granting the writ, defendant brings error. Affirmed.
T. B Catron, Charles A. Spiess, and E. L. Bartlett, for plaintiff in error.
H. L Warren, for defendant in error.
This was an action brought in the district court of Santa Fé county by the petitioner, William P. Cunningham, for the writ of mandamus to compel the appellant and plaintiff in error to turn over to the appellee all the books, papers, property, and prisoners pertaining to the office of sheriff and ex officio collector of the county of Santa Fé, the said petitioner alleging that on the 27th day of June, 1893, Charles M. Conklin was summarily removed from the office of sheriff of said county by the governor of the territory, and the said Cunningham appointed sheriff of the said county to fill the vacancy caused by the removal of the said Conklin; that the order of removal was served on said Conklin on the 28th day of June, 1893; that on the 30th day of June, 1893, the said Cunningham duly qualified as such sheriff by filing a bond in the district court of Santa Fé, and taking the oath of office as required by law. The said petitioner further shows that said Conklin refused to deliver to him, and still refuses to deliver to him, the books, property, etc., pertaining to the office of said sheriff, and that he thereupon prayed the district court for the said county for an alternative writ of mandamus, commanding the said Conklin to turn over the said property to him, and that the writ was accordingly allowed by said court, returnable the 7th day of July, 1893, and served upon the said Conklin upon the 5th day of said month. Respondent, Charles M. Conklin, filed his answer to such writ on the 7th day of July, 1893, alleging that he was duly elected sheriff of Santa Fé county November 8, 1892, to serve for two years from January 1, 1893; qualified and acted as such sheriff; denied that he was summarily removed therefrom by an order of the governor of the territory; denied the right of the governor to remove him, and to appoint Cunningham in his place; denied that the said Cunningham was the sheriff of the said county; denied that said Cunningham was entitled to possession of the said office of sheriff, or of the books or any property pertaining to the same, or that it was his duty to deliver the same to the said Cunningham.
It appears from the petition (by the order of the governor, embraced therein) that the governor acted under and pursuant to authority conferred upon him by section 27, c. 25, of the legislative assembly of the territory, passed at the twenty-ninth session thereof, and that it was shown to him, by satisfactory proof, that Charles M. Conklin, sheriff and ex officio collector of the county of Santa Fé, had collected various sums of money belonging to the school fund, and failed to pay over the same, and that thereupon, by virtue of the authority so conferred, and in fulfillment of the duty imposed upon him, he removed the said Conklin from the office of sheriff of said county on the 27th day of June, 1893. It further appears by said petition (from the order of the governor, contained therein) that the said governor, on the 27th day of June, 1893, appointed the said Cunningham sheriff and ex officio collector of the county of Santa Fé, to fill the vacancy occasioned by the removal of Charles M. Conklin from said office; and it is shown by the respondent, in his return, that the said Cunningham gave bond as such official, in the district court of the said county, on the 30th day of June. Respondent denies that said section 27 of chapter 25, before referred to, was in full effect in this territory on the 27th day of June, 1893, or that it was shown by satisfactory proof that he, the said Conklin, had collected any money belonging to the school fund of said county, and failed to pay over the same, within the limitation specified in said section. Respondent alleges that no notice of his alleged default was ever given; that the governor was not authorized to inquire into the same, and that such charges, if made against him, should have been duly investigated in the district court for said county. Respondent further represents that on the 30th of June, 1893, he obtained an injunction from the district court for said county, restraining the said Cunningham from entering or attempting to enter upon the duties of the office of sheriff of said county, or in any manner interfering with him (respondent) in the discharge of the same. Respondent further shows that on the 3d day of July, 1893, he obtained an order upon the said Cunningham from the district court of said county, returnable the 10th day of July, 1893, to show cause why a writ of quo warranto should not be issued against him, to determine the title to the said office of sheriff of said county, as between him (the respondent) and the said Cunningham, the said writ being declared by the respondent "the proper and legal mode for determining the same," and that the said order was duly served upon the said Cunningham. Respondent thereupon declines to comply with the requirements of the said alternative writ of mandamus, except to show cause, and submits that the said writ should not be made peremptory against him.
It appears from the record in the injunction proceeding that the injunction therein granted was dissolved on the 8th day of July, 1893. The information in the nature of quo warranto referred to by respondent is now pending and undetermined in the district court of the first judicial district. On the 7th day of July the motion of respondent to quash the service and return of said alternative writ upon him was overruled, to which order respondent excepted. On the 8th day of July, 1893, respondent moved the court for a jury to try the issues of fact joined in the cause, upon the allegations contained in the writ and the answer thereto, which said motion the court overruled, and the respondent then and there excepted to such judgment. On the 8th day of July, 1893, the relator, Cunningham, moved for a peremptory writ of mandamus upon the alternative writ, for the reason that no material issues of fact were joined, and only questions of law were raised, which said motion was resisted by respondent; but the court granted the same, ordering the said respondent to turn over to the said petitioner all books and papers pertaining to the office of said sheriff of said county, and also the jail thereof, by July 12, 1893, to which action of the court the respondent excepted. Respondent, then and there, on the said 8th day of July, 1893, moved the court for a new trial, and also for an arrest of judgment, which motion the court overruled, and to which judgment respondent then and there objected and excepted, and took an appeal to this court. On the 11th day of July, 1893, the peremptory writ of mandamus was issued, commanding said Conklin to surrender and deliver to said Cunningham all books, papers, and property pertaining to the sheriffalty of the county of Santa Fé, on or before the 12th day of July, 1893, which order was duly complied with on the said 12th day of July, 1893.
The plaintiff in error assigns the following as error in the court below: First. In denying the motion of plaintiff in error to quash the return and service of the alternative writ of mandamus, upon the several grounds in said motion stated. Second. In denying the motion of plaintiff in error for a jury, upon the several grounds in said motion stated. Third. In granting the motion of defendant in error for a peremptory writ of mandamus, upon the several grounds therein stated. Fourth. In granting a peremptory writ of mandamus. Fifth. In granting said peremptory writ of mandamus, it appearing from the record that no demand had been made upon said Charles M. Conklin for the office in question. Sixth. In denying the motion of plaintiff in error for a new trial and arrest of judgment, upon the several grounds therein stated.
Before considering these alleged errors, we will present the attitude in which the plaintiff in error appears by the repugnant allegations of his return. Respondent denied in his answer that he was summarily removed from the office of sheriff of said county on the 27th day of June, 1893; denied that the relator, Cunningham, was appointed to the said office on the 27th day of June, 1893, and was in possession of said office with any right or title, and claims that he (the respondent) was in possession of said office, and discharging the duties thereof, on the 7th day of July, 1893 in disregard of the order of the executive of the territory removing him, and appointing W. P. Cunningham. Respondent thereafter, in said answer, shows that on the 3d day of July, 1893, he obtained from the district court for the county of Santa Fé an order in the nature of quo warranto upon the petitioner, Cunningham, to determine the title to the office of sheriff of said county as between him and the said Cunningham. It is conclusive that this respondent, by recourse to the writ of quo warranto on the 3d day of July, 1893, to establish the title to the office of sheriff, as against Cunningham, admitted that he had been deprived of the possession of said office by the order of the governor removing him, and that it was in Cunningham, by the appointment of the governor, at the date of the institution of the proceedings in quo warranto. Quo warranto, in its nature, involves a possession...
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