Klock v. Mann.

• Decision Date: 04 March 1911
• Citation: 16 N.M. 211,114 P. 362
• Parties: TERRITORY ex rel. KLOCKv.MANN.
• Court: New Mexico Supreme Court

16 N.M. 211

114 P. 362

TERRITORY ex rel. KLOCK

v.MANN.

Supreme Court of the Territory of New Mexico.

March 4, 1911.

Syllabus by the Court.

The Governor of New Mexico is without power to remove a district attorney appointed for a fixed term before the expiration of such term. Territory v. Ashenfelter, 4 John. (N. M.) 93, 12 Pac. 879, followed.

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Quo warranto by the Territory, on the relation of George S. Klock, against Edward A. Mann. Judgment for defendant, and relator appeals. Reversed.

Mechem and Parker, JJ., dissenting.

The Governor of New Mexico is without power to remove a District Attorney, appointed for a fixed term, before the expiration of such term.

Julius Staab and Summers Burkhart, for appellant. Neill B. Field and E. W. Dobson, for appellee.

POPE, C. J.

The relator, Klock, was appointed and confirmed as district attorney for the Sixth district attorney's district on February 18, 1909, for the term of two years and until his successor be duly appointed and qualified. Laws 1905, c. 33, § 2. On November 18, 1910, the Governor of the territory made an order in which, after reciting that the relator's continuance in office “would be a detriment to the territory,” it is provided that relator's commission as district attorney be vacated, and that he be removed from said office. An order made on the same day recites that a vacancy exists in the office of district attorney for the Sixth district, and appoints the respondent, Mann, to fill such vacancy. Upon the proper showing, leave was granted to file information in the nature of quo warranto, and upon the incoming of an answer to the information judgment was, upon the proper motion, entered pro forma dismissing the information, from which relator has appealed. The record involves but a single question-the right of the Governor to remove. With the latter established, his power to fill the vacancy is clear under Comp. Laws 1897, § 2556, providing as follows: “In all cases wherein the Governor is or may be authorized by law to make appointments, by and with the advice and consent of the council, he is hereby authorized to make temporary appointments during the recess of the legislative assembly, to continue until the meeting of the same.” And under Comp. Laws, § 2580, which reads as follows: “If any vacancy should occur in the office of any district attorney, the same may be filled by an appointment of a qualified person, by the Governor, to expire on the commencement of the next legislature assembly thereafter.” At the threshold we are met by the fact that this court has in Territory v. Ashenfelter, 4 John. (N. M.) 93, 12 Pac. 879, in terms held against the claim of executive power here asserted. In that case Wade was district attorney under an appointment from the Governor duly consented to by the legislative council; his commission being dated March 11, 1884, and running for two years and until the appointment and qualification of his successor. On October 28, 1885, and this before the expiration of Wade's term, the Governor appointed Ashenfelter to the same office. It was held by this court that the Governor had no power to appoint the latter, and that Wade was therefore entitled to the office. Some attempt is made to distinguish that case from the present one in the fact that there no order removing Wade was made by the Governor preliminary to the appointment of Ashenfelter, whereas here Klock was in terms removed before the Governor appointed Mann. We fail, however, to find in this any differentiating ground. The appointment of a successor was in effect the removal of the incumbent. Matter of Hennen, 13 Pet. 230, 10 L. Ed. 138; Blake v. United States, 103 U. S. 237, 26 L. Ed. 462. It is clearly immaterial to the legal question involved whether the removal was accomplished by express terms or by implication. The Governor could appoint only in event of a vacancy, and in Territory v. Ashenfelter the distinct question was his power to create that vacancy by removal. We have thus a decision of this court rendered over 20 years ago distinctly deciding that the Governor had not the power here claimed. Unless that decision is to be overruled, the relator Klock, must prevail.

Courts are and should be slow to brush aside as authority decisions which have stood as the law for decades. This results, of course, not from any pride of opinion, for that would be to relegate to a secondary place the right of the matter. Such hesitancy results rather from the right of the public to have principles of law and rules of property once declared adhered to in the interest of certainty. The rule of stare decisis has been defined to be a canon of public good and a law of self-preservation. Ellison v. Georgia Railroad Co., 87 Ga. 692, 13 S. E. 809. True, it was said by a great jurist in the case last cited that where a grave and palpable error widely affecting the administration of justice must either be solemnly sanctioned or repudiated the maxim which applies is not stare decisis, but fiat justitia, ruat cœlum. But in determining what is the justitia great deference should be paid to what the court has in its previous mature expressions declared to be the law, and the inquiry should be whether such are clearly wrong. Unless such previous declarations be contrary either to controlling authority elsewhere or repugnant to right, they should stand. It is contended by respondent's counsel, however, in his very thorough brief and argument that the Ashenfelter Case is contrary to both authority and reason. It is said that it has been doubted in a subsequent case decided in this court (Territory v. Armijo, 14 N. M. 202, 89 Pac. 275), and that the premises upon which it proceeds have been shown to be clearly untenable in a number of federal cases decided since the decision.

The cases principally relied upon to the latter effect are McAllister v. United States, 141 U. S. 174, 11 Sup. Ct. 949, 35 L. Ed. 693, Parsons v. United States, 167 U. S. 324, 17 Sup. Ct. 880, 42 L. Ed. 185, and Shurtleff v. United States, 189 U. S. 311, 23 Sup. Ct. 535, 47 L. Ed. 828. It is urged that the cases just cited establish, first, that the President has an inherent power flowing from the functions of his office as defined in the Constitution to remove all officers...