State Ex Rel. Holloman v. Leib.

• Decision Date: 17 June 1912
• Citation: 17 N.M. 270,125 P. 601
• Parties: STATE ex rel. HOLLOMANv.LEIB.
• Court: New Mexico Supreme Court

17 N.M. 270

125 P. 601

STATE ex rel. HOLLOMAN

v.LEIB.

Supreme Court of New Mexico.

June 17, 1912.

Syllabus by the Court.

A proceeding by information in the nature of quo warranto to try title to a public office is not a proceeding against the officer as such, but is confined in its scope to an inquiry as to whether the person is lawfully holding the office.

Under the provisions of section 15 of article 6 of the Constitution, the Chief Justice of this court has power to designate any district judge in the state to hold court in any district whenever the public business may require, whether the requirement arises out of an undue accumulation of business, or by reason of the disqualification of the district judge to sit in any one or more cases.

The provision of the section for trials before a member of the bar as judge pro tempore is permissive merely, and does not control the other provisions of the section.

Quo Warranto by the State, on the relation of Reed Holloman, against Thomas D. Leib. Petition dismissed.

A proceeding by information in the nature of quo warranto to try title to a public office is not a proceeding against the officer as such, but is confined in its scope to an inquiry as to whether the person is lawfully holding the office.

The Attorney General, for the State. Renehan & Wright, of Santa Fé, for relator. Jesse G. Northcutt, of Trinidad, Colo., A. A. Jones, of East Las Vegas, and John Morrow, of Raton, for respondent.

PARKER, J.

This is an original petition in this court for leave to file information in the nature of quo wartanto. The relator was a candidate for the office of district judge of the Eighth judicial district against the respondent at the recent first state election. The respondent received the certificate of election from the canvassing board, and has entered upon the discharge of his duties. Relator alleges in his affidavit accompanying the petition that, while respondent on the face of the returns received the larger number of votes, in fact relator received the larger number of legal votes; the discrepancy occurring by reason of certain alleged irregularities or misconduct in conducting the election in precincts 1, 3, and 16 in Union county. A rule to show cause why leave should not be had to file the information was issued and served, and upon the return day respondent moved to discharge the rule. Several considerations are presented by counsel, some of which will be considered.

1. Counsel for respondent rely upon State ex rel. Owen v. Van Stone, 121 Pac. 611, decided January 20, 1912. In that case, after pointing out that this court, as well as the district courts, has original jurisdiction in these cases in all instances, we said: “This court, in the absence of some controlling necessity therefor, of the existence of which this court is the sole judge in each instance, should decline such jurisdiction, and will do so in all cases brought at the instance of a private suitor. What will be considered by this court as a controlling necessity, it will be impossible, and indeed improper, to attempt to define in advance.”

It is urged by relator that a “controlling necessity” exists for this court to assume jurisdiction, for the reason that respondent is in the possession of and exercising the functions of the office of district judge, and, consequently, no other district judge or court has jurisdiction to entertain the proceeding. The proposition is based upon the proviso contained in section 13 of article 6 of our Constitution, which is as follows: “The district courts, or any judge thereof, shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, prohibition, and all other writs, remedial or otherwise, in the exercise of their jurisdiction, provided that no such writs shall issue directed to judges or courts of equal or superior jurisdiction.”

[1] The argument proceeds upon the theory that a proceeding of this kind against a man holding the office of district judge is a proceeding against him in his official character, and that this is expressly forbidden by the proviso, supra. At first view it would seem that the argument is sound. While the proceeding is not intended to control judicial action in any particular matter, it may seem to be designed to control judicial action by forbidding any such action at all in any case. But this view is superficial and erroneous. The...