Delgado v. Chavez

• Citation: 25 P. 948,5 N.M. 646
• Parties: DELGADOv.CHAVEZ, Sheriff.
• Decision Date: 31 January 1891
• Court: New Mexico Supreme Court

5 N.M. 646

25 P. 948

DELGADO

v.CHAVEZ, Sheriff.

Supreme Court of the Territory of New Mexico.

Jan. Term, 1891.

Habeas corpus.

On an application for writ of habeas corpus, by the probate clerk of Santa Fe county and ex officio clerk of the board of county commissioners, to be discharged from commitment for contempt of court, in refusing to obey a peremptory writ of mandamus commanding him, in his official capacity, to recognize one of two rival sets of claimants for the office of county commissioner, and to refuse to recognize the other, on the ground that the writ of mandamus could not be invoked as a means of contesting the right of the rival claimants to the office. Held: The court had jurisdiction of the subject-matter and of the parties to the mandamus proceeding, and the writ was not void because it involved incidentally, if not directly, the title set up by the rival claimants. The objection interposed was no justification for refusal to obey the mandate of the court, and the application must be denied.

N. B. Laughlin, Francis Downs, H. Burns, and Thomas Smith, for petitioner.

John H. Knaebel and E. L. Bartlett, for respondent.

FREEMAN, J.

This is an application for a writ of habeas corpus to be discharged from the custody of the sheriff of Santa Fe county, N. M. The petition is very voluminous, and sets out in full a certain proceeding in mandamus instituted against the relator by Abraham Staab, Juan Garcia, and William H. Nesbitt, on the 13th of January, 1891, seeking to compel the relator, as probate clerk of the county of Santa Fe and ex officio clerk of the board of county commissioners, to perform certain official duties. This is one of the unfortunate proceedings that grew out of the closely-contested election held in the county of Santa Fe on the 4th of November, 1890. Rival sets of county commissioners claim to have been elected. Candidates of both parties held what they claimed to be valid and proper certificates of election. An alternative writ of mandamus was issued against the relator, commanding him to recognize the petitioners to that writ as the legally elected board. In his answer to the writ the relator admitted that he had declined to recognize the petitioners, and sets out at length his views as to who were entitled to exercise the functions of county commissioners. The cause having been heard by the district judge, a peremptory writ was issued. The relator refusing to obey the writ, an attachment was issued, and on the hearing he was committed to jail until he should purge himself of the contempt.

In the case of John H. Sloan and Teodoro Martinez, ante, 930, (heard and determined at the present term of this court,) we have discussed at some length the power of the district judge to issue the writs of mandamus and injunction, and to punish for contempts. Much of what has been said in that case finds appropriate application to this. The case at bar, however, differs from the case of Sloan and Martinez in this: That the latter case involved the right of the district judge to direct the canvassers to canvass the votes cast at the election, while in the present case the question involved is as to the jurisdiction of the court to issue the writ to the probate clerk, directing him which of the two rival boards he should recognize as the lawful body. We have no doubt but that the judge had jurisdiction of the subject-matter and of the parties; and this conclusion settles, as we think, the whole question raised by this proceeding.

The writ of mandamus long since ceased to be a prerogative writ. It is no longer an extraordinary proceeding, except in the sense that an injunction, attachment, or other like process is extraordinary. “It is equally well settled that a mandamus in modern practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ.” Com. v. Dennison, 24 How. 97. It would be a vain and needless exhibition of research to undertake to point out the almost innumerable instances in which this writ has been successfully invoked. The following cases will serve to illustrate the general purposes for which the writ will lie: To compel the allowance of an appeal, (Ex parte Cutting, 94 U. S. 14;) to allow a pension, (Decatur v. Paulding, 14 Pet. 497;) to compel district judge to issue execution, (Postmaster General v. Trigg, 11 Pet. 173;) to compel railroad company to deliver rolling stock, (Ex parte Milwaukee R. Co., 5 Wall. 825;) to compel counties to pay judgments, (Supervisors v. U. S., 4 Wall. 435;) to enforce mandates, (U. S. v. Fossatt, 21 How. 445;) to reinstate cause, (Ex parte Bradstreet, 6 Pet. 774;) to compel levy of tax to pay judgment, (U. S. v. Council of Keokuk, 6 Wall. 514;) to compel court to enter judgment, (Insurance Co. v. Adams, 9 Pet. 573;) to compel court to sign bill of exceptions, (Ex parte Crane, 5 Pet. 190;) to compel postmaster general to perform ministerial duty, (Kendall v. U. S., 12 Pet. 524;) to compel register of land-office to enter application for land, (McCluny v. Silliman, 2 Wheat. 369;) to compel court of claims to entertain motion for new trial, (Ex parte Russell, 13 Wall. 664;) to restore an attorney disbarred by court having no jurisdiction, (Ex parte Bradley, 7 Wall. 364;) to compel town officers to audit charges against the town, (Lower v. U. S., 91 U. S. 536.) In Ohio, Alabama, California, Maryland, North Carolina, Indiana, and Montana the writ will lie to compel the governor of the state to perform a merely ministerial duty. High, Extr. Rem. § 119. It has been also successfully invoked to compel an old officer to deliver records which concern justice to the new one; to compel the clerk of a company to deliver up books, etc.; or the steward of a borough to attend with the books at the next corporate assembly, etc. 5 Com. Dig. 34. In the case of Railway Frog Co. v. Haven, 101 Mass. 403, it was said: “It is well settled that it can be granted, for instance, to compel a town-clerk or clerk of the public corporation, whose office has expired, to deliver over to his successor his common seal, books,” etc. In the case of Conlin v. Aldrich, 98 Mass. 557, the following facts appeared: The town-meeting had been held at which Conlin was chosen as a member of the school committee for the term of three years; but the polls were open and the election was made after sunset. This election was treated as invalid, and another meeting called, at which Burditt was elected to the same office. The town-clerk gave to Conlin a certificate of his election, but Aldrich and Start, who were the two other members of the committee, refused to recognize him as their associate, or to permit him to act as such; they recognizing Burditt as properly elected. The application of Conlin for a writ of mandamus was allowed; HOAR, J., declaring: “It is not very strongly contested by the respondents that the appropriate remedy for the petitioner, if he is entitled to any relief, is the writ of mandamus. That point is substantially settled by the case of In re Strong, 20 Pick. 484.” This case, like the one at bar, presents the condition of rival claimants for the same position. So, also, of the case just cited from 101 Mass., where it was said: “The respondents insist, however, that inasmuch as they are in actual possession of the offices in question under a claim of right, and exercising the functions annexed to them, the only mode of controverting their title is by writ of quo warranto. The fact that the officers are de facto filled and occupied by rival claimants is by no means decisive, and not very material upon this point. It has been so decided in the case of conflicting claims to the office of county commissioner, (In re Strong, 20 Pick. 484;) also in the case of members of a school committee, (Conlin v. Aldrich, 98 Mass. 557.)” In the case of Jennings v. Fisher, 7 Cush. 239, it was said: “This writ, no doubt, is more freely and frequently granted at the present time than it was formerly. It lies to a former town-clerk or clerk of a company to deliver to his successor the common seal, books, papers, and records of the corporation, which belong to his custody. Indeed, it lies to any person who happens to have the books of a corporation in his possession, and refuses to deliver them up. In the case of Kimball v. Lamprey, 19 N. H. 220, GILCHRIST, C. J., said: “There are numerous authorities tending to show in what case a writ of mandamus is the appropriate remedy. In the case of Com. v. Athearn, 3 Mass. 285, it is estimated by PARSONS, C. J., that the proper mode is for the successor of the town-clerk to take the oath of office, and to demand of the former clerk the records, and, if they are refused, then to move for a mandamus to command him to deliver over the records. It was alleged in that case that the defendant was in possession of the office, but was not so legally. In the First Parish in Sudbury v. Stearns, 21 Pick. 148, trover was brought against the defendant for the book of record of the parish. His defense was that he was the clerk, and, as such, had a right to the possession of the records. MORTON, J., says: ‘A mandamus would doubtless be a more appropriate and effectual remedy to compel the delivery of the records to the legal officer;’ and he cites the case of Com. v. Athearn. The rights of persons acting colore officii can be tried only in an information in the nature of a quo warranto or on a writ of mandamus.” To the same effect is the doctrine laid down by the supreme court of Vermont in the case of Stone v. Small, 54 Vt. 498, the syllabus of which is as follows: “(1) Mandamus is the proper remedy to compel the old trustees of an incorporated village, attempting to hold over, to deliver to the new board the books, papers, and articles of personal property in their possession belonging to the village, and to prevent their interfering with the new trustees in the exercise of their...