Jaramillo v. State Ex Rel.Bd. of County Com'rs of Sandoval County.

• Decision Date: 15 October 1926
• Docket Number: No. 3201.,3201.
• Parties: JARAMILLO, County Clerk, etc.,v.STATE ex rel.BOARD OF COUNTY COM'RS OF SANDOVAL COUNTY.
• Court: New Mexico Supreme Court

32 N.M. 20

250 P. 729

JARAMILLO, County Clerk, etc.,

v.STATE ex rel.BOARD OF COUNTY COM'RS OF SANDOVAL COUNTY.

No. 3201.

Supreme Court of New Mexico.

Oct. 15, 1926.

Syllabus by the Court.

Conklin v. Cunningham, 7 N. M. 445, 38 P. 170, examined, and held that the controlling considerations in the decisions reached were the fact that the Governor possessed the recognized power to remove the sheriff and thus to create a vacancy, behind which executive act the court could not go in mandamus proceedings, and the further fact that the prior incumbent had admitted of record, by institution of proceedings in quo warranto, that he was not a de facto officer.

Eldodt v. Territory ex rel. Vaughn, 10 N. M. 141, 61 P. 105, examined, and held that the controlling consideration in the decision reached is the fact that the term of the prior incumbent, Eldodt, had expired at the time of the appointment of Vaughn, and that the appointment to fill such vacancy by the Governor was supported by that fact.

In granting or refusing a peremptory writ of mandamus in respect of public officers, the court is actuated primarily by the necessity that the office be full, so that the public business may be transacted; hence, if the office is not full, the writ is granted to relator, if he show prima facie title. Such a title concludes the court, since mandamus is not allowable as a remedy to try title to public office.

Where the relator has a certificate of election from a duly constituted canvassing board and has qualified for office, as required by law, and where the term of the prior incumbent has expired, the relator has the prima facie title to the office; the prior incumbent, under these circumstances, not being a de facto officer, but a mere recalcitrant intruder.

Where the Governor has the power to remove an incumbent from office, the exercise of such power in a particular case is not reviewable by the court in mandamus proceedings and must be taken as conclusive of the existence of a vacancy and the end of the term of the prior incumbent. Hence, a commission issued by the Governor to fill a vacancy created by such removal, he having the power to fill such vacancy as well as to create it, constitutes prima facie title to the same extent that a certificate of election does against one whose term has expired by operation of law.

Under the Constitution and laws of the state of New Mexico, the Governor is without power to remove an elective officer, and he may appoint to fill a vacancy only when the vacancy, in fact, exists. Nevertheless, a commission issued by the Governor to fill a vacancy, reciting that a vacancy exists, carries the presumption that the vacancy did, in fact, exist at the time of the appointment and that the commission is therefore valid and legal.

Notwithstanding this presumption in favor of executive acts, where it appears in mandamus proceedings that the office is full by a de facto officer holding under color of right, the writ will be refused for the reasons that the granting of the writ would be against public policy, inasmuch as it would admit a second person to an office already filled de facto by another to the confusion of the public business, the de facto officer not being a party to the suit; resort must still be had to further proceedings to test their disputed titles; the duty sought to be enforced is not clear and unmistakable, and the proper remedy is at law by quo warranto.

Where an office is filled by a de facto officer, claiming under color of right, before the expiration of his term, and he has not been removed by any court or tribunal authorized to remove him, such officer has prima facie title to the office.

Error to District Court, Sandoval County; Helmick, Judge.

Suit by the State, on the relation of the Board of County Commissioners of Sandoval County, for mandamus to be directed to Ramon Jaramillo, County and ex officio Clerk of the Board of County Commissioners of Sandoval County. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with direction.

Under the Constitution and laws of the state of New Mexico, the Governor is without power to remove an elective officer, and he may appoint to fill a vacancy only when the vacancy, in fact, exists. Nevertheless, a commission issued by the Governor to fill a vacancy, reciting that a vacancy exists, carries the presumption that the vacancy did, in fact, exist at the time of the appointment and that the commission is therefore valid and legal.

M. C. Mechem, Geo. S. Klock, and M. J. McGuiness, all of Albuquerque, and Carl H. Gilbert and C. J. Roberts, both of Santa Fé, for plaintiff in error.

Fred E. Wilson, Atty. Gen., and Dennis Chavez, of Albuquerque, for defendant in error.

RYAN, District Judge.

[3] This is a writ of error sued out by Ramon Jaramillo, county clerk and ex officio clerk of the board of county commissioners of Sandoval county, against whom a peremptory writ of mandamus was granted by the district court for that county, commanding him as clerk of the board of county commissioners to record the minutes made at a purported meeting of the board attended by L. C. Mondragon, whose official status as county commissioner is not questioned, and Tomas Montoya, who had been appointed by the Governor to fill the office theretofore held by J. M. Sandoval.

J. M. Sandoval was elected county commissioner at the general election of November, 1924. A certificate of election was issued to him by the canvassing board for the county. He qualified as required by law and proceeded upon the performance of his official duties. On July 2, 1926, there was issued to Tomas Montoya, above referred to, by the Governor a commission appointing him to the office of county commissioner, declared in the commission to have been vacated by J. M. Sandoval. The commission recites:

“Whereas, a vacancy is declared to exist in the office of county commissioner of the Second district of the county of Sandoval by reason of the removal and absence from the county of J. M. Sandoval.”

Under this commission, Montoya undertook to qualify as county commissioner in place of J. M. Sandoval. On the 13th day of September, 1926, he and Mondragon affected to transact certain official business and demanded of the clerk that he enter the same in the minutes of the board of county commissioners. Upon the refusal of the clerk so to do, this action in mandamus was instituted against him in the lower court to compel the entry and recordation of the minutes so made.

In the answer which he filed to the writ, the respondent, the above-mentioned county clerk, denied that Montoya had been appointed a member of the board of county commissioners and that he had qualified as such; he further denied specifically every provision of the statute which defines the conditions under which a vacancy in the office of county commissioner may occur. And he alleged affirmatively the election and quanfication of Sandoval, who, he further alleged, had been present at every meeting of the board, acting as a member thereof; that he was in full possession of the office; that he had never surrendered it; that he acted as commissioner on September 13, 1926, and participated in the meeting of the board at that time, and that he, the clerk of the board, had recorded the minutes made by such board.

The plaintiff in error, herein called the respondent, sets forth 19 assignments of error. We consider, however, only the basic question involved. The argument in the case was presented to us in this manner, and we assume the condition of the record justifies such presentation.

The relator urges, in support of the action of the trial court in granting the peremptory mandate against respondent, that the rule first announced in Conklin v. Cunningham and Eldodt v. Territory, and approved in subsequent decisions, has become the settled law of this state. This rule, he maintains, is to the effect that where the Governor appoints to public office, the commission evidencing such appointment constitutes prima facie title in the appointee, and, in mandamus proceedings, is conclusive of the existence of the fact prerequisite to the appointment; that is to say, if the commission recites that the appointment is made by reason of a vacancy existing in the office, the recital is conclusive, since an issue made upon that point would be a collateral attack upon the validity of the commission and an effort to try title by mandamus proceedings; whereas, such title to public office can be tried only directly by an action at law by quo warranto. This rule thus rather concisely stated so far applies to the facts in this case that, he argues, the commission from the Governor to Montoya confers upon the latter prima facie title; and this is so, notwithstanding it might have been shown by the respondent that Sandoval was elected to the office of county commissioner, had a certificate from the proper canvassing board, had duly qualified as required by law, and was the actual incumbent, engaged in the performance of the duties pertaining to that office at the effective date of the mandate. Stated otherwise, with particular reference to the facts in this case, this rule is that the commission issued to Montoya, reciting that Sandoval had removed and was absent from the county of Sandoval, thereby vacating his office, in mandamus proceedings must be taken as equivalent in force and effect to the fact itself; the conclusion, therefore, being irresistible that the office was, in fact, vacant at the time of appointment, that the commission was prima facie title to the office, and that the prior incumbent, Sandoval, was, upon the qualification of Montoya, not a de facto officer, but a recalcitrant intruder. And we understand, relator concedes that the effect of the application of the rule, as contended for by him, would be, in such cases as this is, to oust an incumbent in the position of Sandoval, and to...