State Ex Rel.Hannett v. Dist. Court of First Judicial Dist.In

• Decision Date: 13 February 1925
• Docket Number: No. 3029.,3029.
• Citation: 30 N.M. 300,233 P. 1002
• Parties: STATE ex rel.HANNETTv.DISTRICT COURT OF FIRST JUDICIAL DIST.IN AND FOR SANTA FÉ COUNTY et al.
• Court: New Mexico Supreme Court

30 N.M. 300

233 P. 1002

STATE ex rel.HANNETT

v.DISTRICT COURT OF FIRST JUDICIAL DIST.IN AND FOR SANTA FÉ COUNTY et al.

No. 3029.

Supreme Court of New Mexico.

Feb. 13, 1925.

Syllabus by the Court.

Under the provisions of chapter 28, Laws 1919, an action must, in any event, be brought in the name of the state. A private person, desiring to contest for a state office, must apply to the Attorney General for his concurrence in the filing of his complaint, and the Attorney General must either concur or refuse to act, in which latter event the private person may proceed independently. There is no authority under such statute to file a complaint in the name of such contestant, and, unless all of the foregoing requirements are complied with, there is no jurisdiction of the subject-matter in the court in which such a proceeding is filed.

Petition by the State of New Mexico, on the relation of Arthur T. Hannett, for prohibition to be directed to the District Court of the First Judicial District of the State of New Mexico within and for the County of Santa Fé and Reed Holloman as Judge thereof. Peremptory writ awarded.

Under Laws 1919, c. 28, private person wishing to contest for state office must apply to Attorney General for concurrence in filing complaint, who must either concur or refuse, in which latter event such person may proceed independently.

Summers Burkhart, of Albuquerque, and James A. Hall, of Clovis, for relator.

A. B. Renehan, of Santa Fé, and F. E. Wood, of Albuquerque, for Manuel B. Otero and against writ.

PARKER, C. J.

A motion for leave to file a complaint in the nature of quo warranto was filed in the district court of Santa Fé county by Manuel B. Otero, charging Arthur T. Hannett with usurpation of and unlawful intrusion into the office of Governor of the state, to which office the said Otero claimed to have been elected at the November, 1924, election. The motion sets up that A. B. Renehan, Esq., attorney for Mr. Otero, wrote John W. Armstrong, Attorney General, as follows:

“Santa Fé, N. M., January 2, 1925.

Hon. John W. Armstrong, Attorney General, Santa Fé, N. M.-Dear Sir: I herewith present to you in person the complaints of Manuel B. Otero, candidate on the Republican ticket at the last election for the Governorship of this state, John W. Chapman, candidate on the said ticket for the Attorney Generalship of this state, at the last election, Thomas McGrath, candidate on the said ticket at said election for the office of member of the state Corporation Commission, Antonio T. Chaves, candidate on said ticket at said election for the office of state auditor, and Prager Miller, candidate on the said ticket at said election for the office of state commissioner of public lands, all defeated on the face of the returns and on the face of the certificates of election issued by the state canvassing board to their respective opponents on the Democratic ticket as successful in their candidacies for the respective offices, to wit: Arthur T. Hannett for the office of Governor, John W. Armstrong, yourself, for the office of Attorney General, Ed. Tafoya for the office of member of the Corporation Commission, Juan N. Vigil, for the office of state auditor, and Justiniano Baca for the office of commissioner of public lands, the said complaints being verified.

Assuming that among other reasons, on account of the fact that you yourself are respondent in the complaint so submitted, you will not undertake to handle these cases on the part of the state, I ask that you make known to me at the earliest reasonable moment, the attitude which you will assume upon these matters. At the bottom of my retained copy of this communication I have prepared a form, which I will ask you to execute.

These complaints give in detail the bases, general and particular, upon which the complainants base their charge of wrong, the general purport thereof being that the said respondents respectively are in law intruders upon and usurpers of the respective offices of Governor, Attorney General, member of the Corporation Commission, state auditor, and commissioner of public lands of the state of New Mexico.

Very respectfully,

[Signed] A. B. Renehan,

Attorney for Respective Complainants.

For good and sufficient reasons, I, as Attorney General of this state, refuse to act in these matters.

Dated at Santa Fé, N. M., this ------- day of January, 1925.

---------, Attorney General.”

The complaints of the five state officers referred to in the letter were not submitted to the Attorney General with the letter. In reply to this letter, the Attorney General wrote Mr. Renehan as follows:

“January 3, 1925.

Hon. A. B. Renehan, Attorney at Law, Santa Fé, N. M.-Dear Sir: Replying formally to your request of to-day with regard to instituting certain proceedings in the nature of quo warranto against Governor A. T. Hannett and others, so far as to proposed proceedings against me is concerned, inasmuch as the statute requires my express refusal before such a proceeding may be instituted by my opponent and in order that you may have full power to proceed, I expressly refuse to institute such a proceeding, but this refusal is limited to the case proposed to be filed against me. As to the others, I expressly decline to refuse to institute them, but on the contrary shall be glad to consider anything you may have to submit concerning the good faith of such proceedings and the facts upon which you rely to support them, and, if I become satisfied that proceedings of such nature should in good faith be filed, and that there is merit in the claims of the persons desiring to institute them, I shall promptly act by instituting and prosecuting the same.

My reason for assuming this attitude is that such proceedings will necessarily entail a great deal of expense to those instituting them as well as to those against whom they are filed. People from all parts of the state will be inconvenienced and put to expense in connection therewith, and the same will have a very disturbing effect upon business conditions throughout the state, and a great deal of time will needs be consumed in their prosecution.

I have received a similar request from Hon. Felipe Sanchez y Baca for permission to institute a proceeding of the same nature against Hon. Edward Sargent involving the office of Lieutenant Governor, and I have assumed the same position with reference to his request that I am taking herein.

As soon as you are prepared to submit the nature of the suit you desire filed together with a summary of the evidence you rely upon to sustain the same, I shall give the subject my careful consideration and act in accordance with what I have hereinbefore said.

Respectfully,

[Signed] John W. Armstrong,

Attorney General.”

On January 6, 1925, Mr. Renehan held a personal interview with the Attorney General, in which the Attorney General was asked what he would require to cause him to act in the proposed proceeding of Mr. Otero against Mr. Hannett, and he agreed to examine the proposed verified complaint of Mr. Otero and confer with Mr. Renehan later. On the same day, Mr. Renehan wrote the Attorney General as follows:

“Santa Fé, N. M., January 6, 1925.

Hon. John W. Armstrong, Attorney General, Santa Fé, N. M.-My Dear Attorney General: Herewith I submit the sworn complaint of Mr. Otero, and a copy thereof, in conformity with my conversation with you to-day, in which you stated that you thought I ought to submit to you affidavits supporting the allegations of the complaint, but later stated that you would look at the complaint, under oath, to which I referred, and which I transmit to you herewith.

I also ask you to keep it intact for me, both in the event that you refuse to file it or the others, and in the event that you do determine to file the information or complaint as Attorney General, and so that you will have a complete copy I send you herewith an extra copy which you may retain on the return to me of the original, which is signed and sworn to and which is backed.

You will notice that the first page is largely blank. It was so left in order that I might accommodate myself to your refusal or consent, as the case might be.

In order that your file may be complete, I return herewith to you my original letter to you dated January 2d, and which my messenger brought back to me, somewhat inappropriately, and which you answered on January 3d.

Very truly yours,

[Signed] A. B. Renehan.”

This letter, with the proposed complaint, was delivered to the Attorney General on January 8, 1925, which complaint was verified by Mr. Otero and signed by Mr. Renehan as attorney for Mr. Otero. The Attorney General, instead of conferring further with Mr. Renehan, struck out the name of Mr. Renehan as attorney for Mr. Otero, and signed his own name as Attorney General, and filed the complaint in the district court of Bernalillo county. (We assume from the argument that the complaint was entitled in the district court for Santa Fé county, although that fact does not directly...