Territory v. Clancy

• Citation: 37 P. 1108,7 N.M. 580
• Parties: TERRITORYv.CLANCY, Clerk.SAMEv.KENDALL et al., County Commissioners.
• Decision Date: 05 September 1894
• Court: New Mexico Supreme Court

7 N.M. 580

37 P. 1108

TERRITORY

v.CLANCY, Clerk.SAME

v.KENDALL et al., County Commissioners.

Supreme Court of the Territory of New Mexico.

Sept. 5, 1894.

Action under rules to show cause, by the territory of New Mexico against H. S. Clancy, clerk of the supreme court, A. L. Kendall. Charles W. Dudrow, and Victor Ortega. county commissioners, for contempt of the supreme court. Charles A. Spiess, an attorney in the cause, was, with the parties respondent, found guilty.

The opinions of the court in the foregoing two proceedings appear together, as they are practically the same case. The opinion in regard to Charles A. Spiess also appears. although there was no rule upon him to show cause. It, however, belongs to the proceeding.

H. L. Warren, W. B. Childers, and H. B. Fergusson, appointed by court to prosecute. Neill B. Field, for respondent Clancy. T. B. Catron and Charles A. Spiess, for other respondents.

In the Matter of the Contempt Proceedings against A. L. Kendall, C. W. Dudrow, and Victor Ortega, Commissioners for the County of Santa Fé.

Where the board of county commissioners of Santa Fe county, knowing that the court had initiated a process restraining them from proceeding to declare forfeited and vacant the office of sheriff and ex officio collector of said county, disregarded its order, by thereupon declaring said office forfeited and vacant, they were guilty of contempt; and the fact that they acted upon the advice of their attorney, who advised them that they were not bound to take cognizance of the order unless it was duly directed to and served upon them, and that it could not operate to suspend their proceedings against the said sheriff, did not protect them.

PER CURIAM.

The respondents answer that they were in the afternoon of the 13th day of November, 1893, at their meeting, and that one H. L. Warren appeared before them while they were holding t heir session. examining the accounts of W. P. Cunningham, sheriff and ex officio collector of the county of Santa Fé and exhibited a paper which he stated was an order from the Honorable NEEDHAM C. COLLIER, associate justice of the supreme court, ordering the issuance of a writ of prohibition out of the supreme court, prohibiting and restraining the said board from proceeding in any manner to declare forfeited and vacant the said office of sheriff and ex officio collector of said county, and stated that they did not read it, or hear it read. It is shown, however, that it was tendered to them for their inspection, and the offer was made to have it read to them, and that they refused either to receive or hear it. Respondents further state that they became cognizant in the forenoon of said 13th day of November, 1893, that H. L. Warren had presented the order of the said associate justice to the clerk of the supreme court, and that the said clerk had declined to issue the writ of prohibition therein directed, and that they thereupon submitted the situation to Charles A. Spiess for advice in the premises, and that the said attorney gave them the opinion that they were not bound to take cognizance of said order unless it was duly directed to and served upon them, and that it could not operate to suspend their proceedings upon the notice and citation by them to the said Cunningham; that they thereupon declared forfeited and vacant the said office of sheriff and ex officio collector for the county of Santa Fé, for the cause alleged in the said citation, and that in so acting, and disregarding the suggestion of H. L. Warren that the said order was as obligatory upon them as though formulated into a writ with the seal of the supreme court, they intended no disrespect to this court, or any member thereof. This court is impressed that these commissioners, in ignoring their official legal adviser, the district attorney, and in seeking other counsel, disclosed an animus in the premises to avoid the possibility of an opinion adverse to their disposition to proceed in the execution of the purpose indicated in their notice to Cunningham, and that they must take the consequence of the ill advice they received, and upon which they acted. Cognizant that the supreme court of this territory had, through one of its members, declared doubtful their right to continue their proceedings against the said sheriff, they should have forborne to exercise further jurisdiction, no matter whether this action of the court was communicated formally, by writ duly served, or by notice of the existence of the order of the court for a writ against them. The material inquiry is whether they knew that the court had initiated the process to restrain them; and that they were so apprised, they confess. They cannot protect themselves by the fact that before their action a professional opinion was given them that they had the right to act. “The fact that before publication a professional opinion was given that the publication would not be a contempt does not change the character of the defendant's defamatory article, or relieve the defendant of liability for its origin and dissemination.” Myers v. State (Ohio Sup.) 22 N. E. 43. We will, however, pay due regard to the extenuating fact that the commissioners proceeded under the advice of counsel of their own selection, and accordingly will limit the punishment for their contempt proportionately to their offense. The judgment of the court is that A. L. Kendall and C. W. Dudrow shall be confined in the county jail for 20 days. It appearing to the court that Victor Ortega, being unacquainted with the English language, did not understand the proceedings by his associates, the writ against him will be dismissed.

In the Matter of the Contempt Proceeding against C. A. Spiess.

PER CURIAM.

This attorney and officer of this court confesses that he advised the county commissioners of Santa Fé county-against whom Hon. NEEDHAM C. COLLIER, an associate...