Perez v. Barber
| Decision Date | 24 August 1893 |
| Citation | 34 P. 190,7 N.M. 223,1893 -NMSC- 021 |
| Parties | PEREZ, Auditor, v. BARBER. [1] |
| Court | New Mexico Supreme Court |
Error to district court, Santa Fe county; Edward P. Leeds, Judge.
Action by Philip J. Barber against Demetrio Perez, auditor of public accounts, for mandamus. Plaintiff had judgment, and defendant brings error. Affirmed.
Edward L. Bartlett, Sol. Gen., for plaintiff in error.
Francis Downs, for defendant in error.
This was an action by mandamus, on the part of the plaintiff below, to compel the auditor of public accounts of the territory (the plaintiff in error) to draw a warrant on the treasurer of the territory for the sum of $203.38, in payment of an account allowed by the board of penitentiary commissioners in his favor for services rendered as assistant superintendent of the New Mexico penitentiary during the year 1892. An alternative writ was issued, and a return thereto made, which admitted the allowance of said claim by the board of penitentiary commissioners, but denied their right to so allow it, as during the time that he was acting as assistant superintendent of the penitentiary he was the regularly appointed and acting yard master and foreman of the brick yard of said penitentiary at a salary of $720 per annum, all of which had been paid to him; and that E. H. Bergmann was the regularly appointed and acting assistant superintendent of such penitentiary at the time, and was entitled to the pay appertaining to such position; and that J. Francisco Chavez was the duly and regularly employed superintendent of such penitentiary during such time, and had qualified by taking the required oath and giving the necessary bond, and had appointed said Bergmann assistant superintendent, and said Barber (defendant in error) as yard master and foreman of the brick yard, which appointments had been contirmed by the board of penitentiary commissioners; and that no successor to said Chavez as superintendent had been employed by said penitentiary board. That he had been always ready to audit and allow the salary of the assistant superintendent to the person entitled thereto, i. e. E. H. Bergmann, but he had never applied for it, but that he did claim the salary of the superintendent, which was also claimed by said J. Francisco Chavez. That he had, in his report to the thirtieth legislative assembly, recited these facts, and had asked for the consideration of the same by that body, but that it failed to act upon it. That while Bergmann was assistant superintendent, regularly employed and appointed as such, he could only draw the salary provided for that position; and while Barber (the defendant in error) was appointed as and employed in the office of foreman of the brick yard and yard master, he could only draw the pay to which that position entitled him, i. e. $720 per annum, instead of the pay of the assistant superintendent, $1,500 per annum, although he had actually performed the duties of that position as well as those of yard master, as under the law he was required to perform any duties which might be imposed upon him, without any additional compensation. Upon the hearing there were no contested questions of fact, the only question being as to the duty of the auditor, under the facts stated in the petition, answer, and stipulation, to draw the warrant for the balance of the salary of the relator...
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