Territory ex rel. Klock v. Mann
| Decision Date | 23 December 1911 |
| Citation | 120 P. 313,16 N.M. 744,1911 -NMSC- 076 |
| Parties | TERRITORY ex rel. KLOCK v. MANN. |
| Court | New Mexico Supreme Court |
Appeal from District Court, Bernalillo County; before Justice Abbott.
Quo warranto by the Territory, on relation of George S. Klock against Edward A. Mann. Decree for relator, and defendant appeals. Affirmed.
E. W Dobson, for appellant.
Summers Burkhart and Julius Staab, for appellee.
The relator, George S. Klock, was appointed district attorney for the Sixth district attorney district of New Mexico on February 18, 1909, by the then Governor of the territory, and was duly confirmed by the Legislative Council, as the law required, for the term of two years and until his successor should be appointed and qualified. On November 18, 1910, the present Governor made an order which assumed to remove him from office, and on the same day another order appointing the respondent, Edward A. Mann, district attorney in his place. In a decision rendered March 4, 1910 (Territory ex rel Klock v. Mann, 114 P. 362), the Supreme Court of the territory held that the Governor had not the power of removal under the circumstances, and therefore that the appointment was invalid. Following the judgment and mandate of the Supreme Court in that case, a judgment of ouster was entered in the district court against the respondent, and the relator, Klock, upon the 24th day of March, 1911, resumed the duties of the office of district attorney without objection on the part of the respondent, and continued to discharge them until about the 6th day of April, 1911, when the respondent appeared, claiming another commission from the Governor, dated March 29, 1911, purporting to appoint him to the office, and the respondent, having duly qualified on April 6, 1911, again entered upon the performance of the duties of the office of district attorney. The relator thereupon brought an information in the nature of quo warranto, in the name of the territory, to try the respondent's title to the office. This matter was heard in the lower court, and judgment entered in favor of the relator, holding that he was entitled to the office. A writ of ouster was issued, based upon such holding, and respondent was again put out of the office of district attorney. No supersedeas was granted by the lower court, and from the judgment in quo warranto the respondent appeals to this court.
Upon the former appeal, the court held that the Governor was without power to remove a district attorney appointed for a fixed term before the expiration of such term. In the opinion of the court, it also held, incidentally, that if there had been a vacancy the Governor would have had the power to fill it, under the provisions of sections 2556 and 2580 of the Compiled Laws of 1897, which sections are quoted in full in the former opinion. In the present case, although the two-year term for which the relator had been originally appointed had expired prior to the appointment of respondent on March 29, 1911, the relator claims that there was no vacancy in the office of district attorney which the Governor could fill, under the provisions of section 2556, as modified and restricted by the provisions of section 2580, Compiled Laws 1897, basing his contention upon two distinct grounds: First, that as by the statute of 1905, c. 33, § 2, in force when he was appointed, and in effect re-enacted in chapter 22, § 1, Laws of 1909, a district attorney holds office for two years and until his successor is appointed (chosen) and qualified, there is no vacancy, even after the expiration of two years, unless and until the Council joins with the Governor in the appointment; and, second, that even if by the statute law of the territory there would have been a vacancy at the end of the term of two years but for the enactment by Congress of the enabling act, approved June 20, 1910, c. 31, 36 Stat. 557, yet by that act the relator was continued in office until the proclamation of the President, declaring New Mexico to be a state.
Section 2, c. 33, of the Session Laws of 1905, provides for the appointment of district attorneys by the Governor, by and with the advice and consent of the Legislative Council, and further provides that such district attorneys, when so appointed, "shall hold their office for a period of two years from the date of such appointment and until their successors may be duly appointed and qualified." This same act was re-enacted in practically the same words by the Legislature of 1909.
Where provision is made by statute for an officer to hold over until his successor is duly elected and qualified, the hold over is regarded as in all respects a de jure officer, and the expiration of his term does...
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