Territory ex rel. Hubbell v. Armijo
| Decision Date | 27 February 1907 |
| Citation | 89 P. 267,14 N.M. 205,1907 -NMSC- 013 |
| Parties | TERRITORY ex rel. HUBBELL v. ARMIJO. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
A term of a district court in this territory, begun and held by any judge, as required by law, for a county in the district continues in existence until the day fixed by law for the beginning of another term of that court for the same county unless sooner adjourned without day, although another term of the same court for another county has been held, as required by law, in the meantime, by the same judge.
Anything done by a judge of a district court in a proceeding by information in the nature of quo warranto, so far, at least as it is treated as a civil cause, which would be valid if done in term time, is not invalid, because done outside of a regular term of such court.
The executive power vested in the Governor of New Mexico by the organic act does not include the right to remove an officer elected in accordance with a statute law of the territory.
Appeal from District Court, Bernalillo County; before Justice Ira A Abbott.
Action by the territory, on the relation of Thomas S. Hubbell, against Perfecto Armijo. Judgment for defendant, and the territory appeals. Reversed.
The relator, Thomas S. Hubbell, held the office of sheriff of Bernalillo county, N. M., by election, in November, 1904, when he was re-elected to that office for the term of two years, beginning January 1, 1905. He duly qualified for office and served as sheriff in the term for which he was thus elected, without question as to his right so to do, until August 31, 1905. Prior to that time, in the year 1905, specific charges against him, of misconduct in office, had been filed by the district attorney for said county, with the Governor of the territory. A hearing on the charges had been given and on August 31, 1905, the Governor made an order reciting the charges, the hearing, stating that certain specified charges had been proved, that he could not perform the duty imposed on him to see that the laws were faithfully executed, with the relator in office, and that he did thereby remove him from the office of sheriff of Bernalillo county. On the same day, August 31, 1905, he made an order, reciting that a vacancy existed in the office of sheriff of Bernalillo county, but without stating the cause of such vacancy, and appointing Perfecto Armijo, the defendant, to the office. Before resorting to the course now taken to establish the rights he claims, the relator had attempted to retain or regain the office in question by mandamus, and equity proceedings, but this court held, as it had done in former cases, that an information in the nature of quo warranto was the appropriate and only method open to him, under the circumstances, to try his title to the office. The cause is now before this court on appeal from a judgment of the district court for Bernalillo county, based on a pro forma order, made for the convenience of parties, to facilitate a hearing in this court, sustaining the defendant's demurrer to the information and dismissing the case. The order was made by Associate Justice Abbott, judge of the Second district, and, as it was made pro forma, left him qualified to sit, as he did, for the hearing of the cause, as a member of this court. The defendant, in his demurrer, preserved the right to challenge the jurisdiction of the district court, and exercised it here on grounds stated in the opinion.
W. B. Childers, A. M. McMillen, E. W. Dobson (W. C. Reid, Atty. Gen., on the briefs), for appellant.
N. B. Field, for appellee.
Dealing, first, with the question of jurisdiction, we find the defendant's denial of it is based on two grounds: First, that at the time when action was taken in the cause there was no term of the Second district court for Bernalillo county in existence, for the reason that a term of said court as fixed by law for Sandoval county had begun after the beginning of the next preceding term for Bernalillo county, and before such action was taken; and, second, that an information in the nature of quo warranto is a criminal proceeding, and the court could take no action on it except during a term. That is, it is claimed, in substance, as to the first point, that two terms of the same court for different counties-the same judge being an integral part of the court in each case-are incompatible with each other, and that the beginning of a term at the time prescribed by law in one county necessarily makes an end of a term for another county in the same district at that time in progress. It is true, of course, that, ordinarily at least, the presence of the judge is essential to the validity of any act of the court, of which he is a part; but the court survives the absence, removal, or death of the judge; and, in case of his disqualification for any particular act, another judge may generally perform it in his place. Besides, a term of court is not the same thing as the court itself, and is no more than a period of time within which, and then only, certain functions of the court can be exercised. The beginning of this period is fixed by law in this territory for each county. Its end comes only by adjournment, or by the arrival of the date designated by law for the beginning of another term of the same court for the same county. Section 909, Comp. Laws 1897; People v. Central City Bank, 53 Barb. (N. Y.) 416; Labadie v. Dean, 47 Tex. 100. This court has already held, in substance, in Borrego v. Territory of New Mexico, 8 N. M. 446, 46 P. 349, that merely constructive interference of one term with another does not terminate the existence of either or render anything done in it by the court invalid. That decision was upheld in Gonzales v. Cunningham, 164 U.S. 612, 17 S.Ct. 182, 41 L.Ed. 572. In Territory v. Netherlin (N. M.) 85 P. 1044, a motion for a rehearing in this court, based in part on the claim that one term of court had destroyed another, was denied. No good reason is perceived against holding any number of terms for different counties in the same district on the same day if the public convenience should require it. To hold otherwise would be to assume that by mere words we had laid hold on time itself and cut it up into portions capable, like solid bodies, of jostling and colliding with each other; an assumption which might have been quite in keeping with the technicalities of an early period in the history of English jurisprudence, but would now be out of place. But, assuming that an examination of the records of the Second district court would show that action was taken in the case at bar on one or more occasions after the adjournment without day of a term of that court for Bernalillo county, and before the beginning of another term, we arrive at the second point in the defendant's objection to the jurisdiction, namely, that this is a criminal or quasi criminal cause, and that no valid action could be taken in it out of term.
The term of court is now preserved in this jurisdiction mainly, if not wholly, for jury trials and matters incidental to or connected with them, and, except for such purposes, the district courts are declared to be always open. Subsections 103, 104, § 2685, Comp. Laws 1897. There is nothing in the essential nature of quo warranto proceedings to furnish a reason why they should not be had in vacation. On the contrary, they are peculiarly such as are most advantageously conducted by the courts in chambers, and, while it was recited in Territory v. Ashenfelter, 4 N. M. 134, 12 P. 879, cited by the defendant, that the proceedings referred to were in term, and were regular and valid, it was not said they would not have been equally valid in vacation; and, indeed, the opinion on that point, we think, strongly favors the opposite conclusion. The proceeding by information was never more than incidentally criminal; its main purpose having been in its early history, and its only one in recent times being to try title to office. Whether, if a fine had been imposed, it would have put the cause on the criminal side, so far as to render that action of the court invalid, if not taken in term, we need not now decide, as such action was not attempted; but it should be noticed in this connection that this court, in Re Sloan, 5 N. M. 614, 25 P. 930, held that an order of attachment for contempt, by which a fine was imposed, was valid, although made out of term. See High on Ex. Legal Rem. §§ 737, 741; 23 Am. & En. Enc. of Law, 599; Ames v. Kansas, 111 U.S. 460, 4 S.Ct. 437, 28 L.Ed. 482. We are of the opinion, therefore, that the objections to the jurisdiction are not well taken.
We come now to the question whether the Governor of the territory had the power to remove the relator from office as he attempted and assumed to do. As the court well says, in Territory v Ashenfelter, supra: It is fortunate and gratifying that our way to a conclusion on the highly important question before us has been well lighted from both sides by the able counsel who appeared in the cause, and especially that the full strength of the position against which we decide has, we believe, been presented in the interesting and comprehensive brief and argument for the defendant, so that, if we are in error, it is not from lack of any material which might...
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