State Ex Rel. Sanchez v. Stapleton.

• Decision Date: 04 November 1944
• Docket Number: No. 4845.,4845.
• Parties: STATE ex rel. SANCHEZ et al.v.STAPLETON.
• Court: New Mexico Supreme Court

48 N.M. 463

152 P.2d 877

STATE ex rel. SANCHEZ et al.

v.STAPLETON.

No. 4845.

Supreme Court of New Mexico.

Nov. 4, 1944.

Appeal from District Court, Socorro County; James B. McGhee, Judge.

Quo warranto proceeding by the State of New Mexico, on the relation of Herman A. Sanchez and another, against Lisandro Stapleton, to try legal right of the respondent to hold the office of County Assessor of Socorro County, N.M. From a judgment in favor of respondent, discharging the writ and dismissing the cause, the relators appeal.

Affirmed.

The appointment by county assessor of his wife as deputy assessor while he was serving in armed forces, together with an assignment of all salaries and emoluments of office of county assessor, without approval of board of county commissioners, was void. 1941 Comp. §§ 10-110, 10-111, 15-3602, 15-4103.

Mechem & Hannett, of Albuquerque, and Claron E. Waggoner, of Socorro, for appellants.

Wilson, Brophy & Whitehouse and Louis C. Lujan, all of Albuquerque, for appellee.

THREET, Justice.

This is a proceeding in quo warranto brought by the District Attorney within and for the Seventh Judicial District of the State of New Mexico, upon the relation of Herman A. Sanchez and Helen P. Sanchez, his wife, against respondent, Lisandro Stapleton, to try the legal right of the respondent to hold the office of County Assessor of Socorro County, New Mexico. From a judgment in favor of respondent, discharging the writ and dismissing the cause, relators appeal.

Facts, as found by the trial court, necessary to a decision are:

That the relator, Herman A. Sanchez, was duly elected Assessor of Socorro County in the 1942 election and, on or about January, 1943, he qualified and took possession of the office. On or about the 15th of August, 1943, he was inducted into the Naval Service of the United States, and left the County of Socorro, and since that time he has been in the Naval Service performing services therein as a sailor, and has been absent from Socorro County, New Mexico. By reason of his induction into the service of the United States Navy and by reason of the duties imposed upon him in such service, he, since the 15th day of August, 1943, has failed to devote his time to the performance, in person, to the duties of such office.

Upon the 16th of August, 1943, at a duly called meeting of the Board of County Commissioners of Socorro County, the following resolution was duly made and adopted by the Board:

“Mr. Chairman, in accordance with Section 2 of Chapter 123 of Laws of 1943 of the State of New Mexico, we are empowered and directed to fill vacancies when a County Officer enters Military, Naval, United States Merchant Marine, or other armed service of the United States of America. The records show that the County Assessor, Herman A. Sanchez, of Socorro County has entered the armed services of the United States, therefore, a vacancy exists at this time and that he has abandoned such said office as County Assessor as shown by Sec. 1, Chapter 123 of Laws of 1943 of the State of New Mexico. Therefore, I move that Mr. Lisandro Stapleton be appointed to fill said vacancy until the said Assessor has been relieved from active duty in the armed services and has resumed the personal discharge of the duties of such public office. The appointee shall receive the salary and emolument with all power and authority granted by law to such assessors, and shall perform the duties in accordance with Section 2, Chapter 123 of Laws of 1943 of the State of New Mexico.”

The respondent Lisandro Stapleton took the oath of office and filed a good and sufficient bond, as required by law, and accepted the appointment as assessor made by the board of county commissioners and, on the 23rd day of August, 1943, he took possession and entered upon the discharge of the duties of the office and since that time has been in possession of the office of Assessor of Socorro County under his appointment. After the appointment of the respondent, to-wit: August 21, 1943, the Board of County Commissioners and respondent demanded of one Torres, who had been employed by the relator Herman A. Sanchez, as a deputy in the office, and in possession of the keys of the office, to deliver the keys to respondent so that he might take over the performance of the duties of the office. Torres refused to surrender the keys and the board of county commissioners, pursuant to advice of Claron E. Waggoner, District Attorney, and H. L. Bigbee, Assistant Attorney General, ordered that the lock on the door be broken and a new one be placed thereon. Upon the execution of this order the key to the new lock was delivered to respondent who, on August 23, 1943, took possession of the office without force or disturbance. That relator, Herman A. Sanchez, appointed Torres as a deputy in his office on the 25th day of January, 1943, where he served, drawing the entire allowance made by deputy hire for the Assessor of Socorro County, until the 15th day of August, 1943. Torres took no oath of office and filed no bond. He did not have a contract with the relator, Herman A. Sanchez, to serve for any definite time, but understood his employment was to be at the pleasure of the relator, Herman A. Sanchez.

The relator, Helen P. Sanchez, is the wife of Herman A. Sanchez and prior to August 14, 1943, she had, on a few occasions, done clerical work in the assessor's office, but had received no pay therefor. On August 14, 1943, prior to his induction into the Naval Service, the relator, Herman A. Sanchez, by an instrument in writing, appointed Helen P. Sanchez, Deputy Assessor, and assigned to her the salary and emoluments of the office. Her appointment was not approved by the Board of County Commissioners of Socorro County, but the intrument in writing was recorded in the office of the County Clerk of Socorro County.

Upon these findings, the trial court coneluded that the respondent is entitled to the office of Assessor of Socorro County, New Mexico, with full power to perform the duties and functions thereof and to the fees and emoluments thereof, since the day upon which he filed his oath of office and bond and qualified as such officer. That the writ should be discharged and the cause dismissed.

Relators challenge the constitutionality of Chapter 123, of the 1943 New Mexico Session Laws, and assign the following errors:

“1. The trial court erred in refusing to hold that Chapter 123, Laws of 1943, violates the Supreme Law of the land because it penalizes a citizen for obeying that law in joining the armed forces of the United States when the country is at war.

“2. The trial court erred in refusing to find that Chapter 123, Laws of 1943, violates Article 20, Section 2, of the Constitution of New Mexico.

“3. The trial court erred in refusing to find that Chapter 123, Laws of 1943, violates Article 4, Section 27, of the Constitution of New Mexico.

“4. The trial court erred in refusing to find that Chapter 123, Laws of 1943, violates Article 7, Section 2, of the Constitution of New Mexico.

“5. The trial court erred in refusing to find that Chapter 123, Laws of 1943, forfeits the office of the appellant without due process of law.

“6. The trial court erred in finding that Chapter 123, Laws of 1943, repeals Sections 10-301 to 10-303, New Mexico Statutes Annotated, 1941.”

We consider first the preliminary question, the right of the relators to maintain this suit. As to the relator, Herman A. Sanchez: First, because it is obvious that the act he challenges, as being unconstitutional, was passed primarily to preserve to him his office, the benefits to him outweighing the temporary suspension of his salary; second, because, without the saving clause in the act, he is in the attitude of violating 1941 Comp., Secs. 10-301 and 10-304.

As to the relator, Helen P. Sanchez, unless she is either injured or jeopardized by the operation of the statute, its constitutionality cannot be challenged by her. It is manifest that she must rely on her status as the legally appointed Deputy Assessor of Socorro County, and the operation of the statute would deprive her of that office, before she would be in a position to challenge its constitutionality. If her appointment, as deputy assessor, is void she cannot be heard to say that the act offends against her rights as no injury to her would flow from its operation. State ex rel. Davidson, State Highway Engineer v. Sedillo, County Treasurer, 34 N.M. 1, 275 P. 765.

To the latter proposition we direct our first discussion. She was appointed deputy assessor by her husband, Herman A. Sanchez, on the 14th day of August, 1943, who assigned to her the salary and emoluments of the office. This appointment is governed by the 1941 Comp., Secs. 10-110 and 10-111.

Section 10-110, provides:

“It shall hereafter he unlawful for any person elected or appointed to any public office or position under the laws of this state or by virtue of any ordinance of any municipality thereof, to employ as clerk, deputy or assistant, in such office or position, whose compensation is to be paid out of public funds, any person related by consanguinity or affinity within the third degree to the person giving such employment, unless such employment shall first be approved by the officer, board, council or commission, whose duty it is to approve the bond of the person giving such employment: Provided, that this act *** shall not apply where the compensation of such clerk, deputy or assistant shall be at the rate of $600 or less a year, nor shall it apply to persons employed as teachers in the public schools.”

Section 10-111, provides:

“No person so unlawfully employed shall be paid or receive any compensation from public funds, and such employment shall be null and void, and the person or persons giving such employment, together with his or their bondsmen, shall be liable for any and all moneys so unlawfully paid out.”

[1] The appointment of the relator, Helen P....