Eldodt v. Vaughn

• Decision Date: 03 May 1900
• Citation: 10 N.M. 141,61 P. 105
• Parties: ELDODTv.TERRITORY ex rel. VAUGHN.
• Court: New Mexico Supreme Court

10 N.M. 141

61 P. 105

ELDODT

v.TERRITORY ex rel. VAUGHN.

Supreme Court of the Territory of New Mexico.

May 3, 1900.

Syllabus by the Court.

1. One who possesses prima facie title to an office may compel delivery to himself of the books, papers, seal, and other property, insignia, and paraphernalia of such office, by a proceeding in mandamus; and the question of the actual or ultimate title to the office may not be raised in such proceeding, but must be reserved for an appropriate proceeding brought directly for the purpose. Conklin v. Cunningham, 38 Pac. 170, 7 N. M. 445, followed.

2. A strong prima facie presumption is indulged in favor of the legality and regularity of the acts of the executive; and where it appears that the governor has undertaken to appoint to an office which, under a certain state of facts, he is empowered to fill, it will be presumed, in the first instance, that the requisite facts existed at the date of the appointment, and that the appointment was regular and valid. Conklin v. Cunningham, supra, followed.

3. On March 2, 1897, E. was appointed treasurer of New Mexico by the governor, by and with the advice and consent of the legislative council, to hold office for two years, and until his successor should be appointed. On June 23, 1899 (the legislature for that year having adjourned without the confirmation by the council of any nominee to the said office), V. was appointed and commissioned by the governor to be territorial treasurer. V. then having qualified in the form prescribed by statute, and E. having, upon demand, refused to deliver to V. the books, papers, seal, insignia, and paraphernalia of the office in question, held, that V. was prima facie treasurer of New Mexico, and entitled to the immediate possession of the aforesaid belongings and appurtenances of the office, and that mandamus against E. was a proper remedy whereby to vest such possession in V. Conklin v. Cunningham, supra, followed.

Error to district court, Santa Fé county; before Justice John R. McFie.

Action by the territory of New Mexico, on the relation of J. H. Vaughn, for a writ of mandamus against Samuel Eldodt. Writ granted, and defendant brings error. Affirmed.

On July 6, 1899, J. H. Vaughn, the relator, filed in the district court for Santa Fé county a petition, alleging his appointment, on June 23, 1899, by the governor of New Mexico, to the office of territorial treasurer, and his due qualification, and praying an alternative writ of mandamus against Samuel Eldodt, the respondent, requiring him to surrender to the relator all the insignia and paraphernalia of the office of treasurer, then in Eldodt's possession. Thereupon the alternative writ issued, and was as follows, omitting formal portions: “The Territory of New Mexico, to Samuel Eldodt, Greeting: Whereas, our said court has been given to understand, upon the information of J. H. Vaughn, that he the said Vaughn was on the 23rd day of June, 1899, duly appointed and commissioned by the governor of the territory of New Mexico as treasurer of said territory, and that the said Vaughn duly took and filed the oath of office required by law, and gave his bond as required by law, which bond was approved by the governor of the territory of New Mexico, and filed with the secretary of the territory, as required by law, on the 28th of June, 1899, whereby he fully and duly qualified himself to act as such treasurer, and as such was entitled to the custody and possession of the books, papers, moneys, seal, safes, bonds, and other insignia and paraphernalia of the said office of treasurer of the territory of New Mexico; and that on the 6th day of July, 1899, the said Vaughn demanded of you, then being the person in charge of such insignia and paraphernalia of the office of treasurer, that you deliver and turn over the same to him, the said Vaughn, as treasurer, to do which you then and there declined and refused, but retained and still retain the exclusive possession thereof in your custody and control, and unlawfully and wrongfully refuse to deliver the same, or any part thereof, to the said Vaughn, the lawfully commissioned and qualified treasurer of said territory, whereby he is unable to discharge his official duties as treasurer in any respect, and the public business is embarrassed and hindered, and that he is without any plain, adequate, and speedy remedy in the ordinary course of law: Now, therefore, we *** do command you *** that, immediately upon receipt of this writ, you deliver and turn over to the said Vaughn, as treasurer of the territory of New Mexico, all the books, papers, moneys, seals, safes, bonds, and other insignia and paraphernalia belonging or pertaining to the said office of treasurer of the territory of New Mexico, or that you show cause before this court at the chambers of the judge in the court house at ten o'clock a. m., on the 11th day of July, 1899, why you have not done so,” etc. On July 11, 1899, the respondent filed an answer or return to the writ, of great length, wherein he denied specifically and generally the several allegations of the writ. This return also contained various allegations, in both negative and affirmative form, the substance and object of which were to avoid the allegations of the alternative writ upon the ground that, the respondent having been duly created treasurer of New Mexico in March, 1897, upon nomination and appointment of the governor, by and with the advice and consent of the legislative council, to hold office for two years, and until his successor should be appointed, and being alive, sui juries, and entirely capable of filling the office, and never having resigned or been removed therefrom, but, on the contrary, being still in exclusive possession thereof, rightfully, and the relator never having been nominated to the council by the governor, that official was without power to confer the office in question upon the relator, as he had attempted to do. In other words, the purport of these allegations was to deny the power of the governor to appoint the relator, under the circumstances, and to assert the rightful possession and title of the office to be still exclusively in the respondent. Finally, the return excepted to the legal sufficiency of the averments of the writ. Upon motion of the relator, the court made an order striking out and quashing the greater part of the return, permitting only such portions as traversed the allegations of the writ touching the appointment and qualification of the relator to stand, the motion being sustained (to quote the language of the order) “in so far as the answer and return denies the right of the governor to appoint the relator to the office of treasurer, and asserts the title to the office in the respondent, and his right as such officer to retain and hold possession of the insignia and paraphernalia of said office.” To this ruling the respondent excepted. A motion by the respondent that the issues raised by the pleadings be submitted to a jury was overruled, and the cause came on for hearing before the court. The relator introduced in evidence a commission issued and signed by the governor, under the seal of the territory, and countersigned by the secretary, dated June 23, 1899, appointing the relator, J. H. Vaughn, treasurer of the territory of New Mexico; a certificate of the secretary of the territory, dated June 28, 1899, certifying to the appointment and commission of the relator, to his having taken and filed his oath of office, and given a bond to the territory as required by law, and to the approval of such bond by the governor, and the filing thereof in the secretary's office; and a copy of the said bond, certified by the secretary. Lastly, the relator put in evidence a written demand upon the respondent, in substance requiring the latter to turn over to the former the office of treasurer, and its appurtenances and belongings, upon which document was written a statement signed, “Samuel Eldodt, Treasurer of the Territory of New Mexico,” acknowledging service of the demand, and refusing compliance therewith. To the introduction of these several documents the respondent objected and excepted. The respondent then offered evidence to sustain the several affirmative allegations of his return concerning his own appointment, qualification, etc., all of which was excluded, over his exception, and the court gave judgment finding the facts to be as stated in the alternative writ, and adjudging the relator to be “prima facie treasurer of said territory, and as such entitled to the immediate possession of the insignia, paraphernalia, books, furniture, and other articles pertaining to said office.” Motions for a new trial and in arrest of judgment having been overruled, the peremptory writ was issued July 14, 1899, and, in compliance with the command thereof, the respondent gave over everything appertaining to the office of treasurer to the relator.

One who possesses prima facie...