Wade v. Ashenfelter.

• Decision Date: 21 January 1887
• Citation: 4 N.M. 93,12 P. 879
• Parties: TERRITORY ex rel. WADEv.ASHENFELTER.
• Court: New Mexico Supreme Court

4 N.M. 93

12 P. 879

TERRITORY ex rel. WADE

v.ASHENFELTER.

Supreme Court of the Territory of New Mexico.

January 21, 1887.

Appeal from district court, Sierra county.

Quo warranto to try title to the office of district attorney for the Third judicial district. Judgment against the defendant, who appeals.

Section 19 of the act of February 28, 1862, entitled “An act * * * to authorize the governor to appoint a district attorney for the Third district,” provides “that the governor * * * shall appoint some person learned in law as attorney general for the Third judicial district.” Held, as a literal construction would render the act nugatory, to provide for the appointment of a district attorney who should hold for a fixed term of two years.

G. G. Posey, Idus L. Felder, and W. T. Thornton, for appellant.

Wm. Breeden, Atty. Gen., for appellee.

LONG, C. J.

This is a proceeding brought by the territory of New Mexico, on the relation of Edward C. Wade, against Singleton M. Ashenfelter, who is appellant. On the tenth day of November, A. D. 1885, the relator, Edward C. Wade, filed in the office of the clerk of the district court of the Third judicial district, sitting in the county of Sierra, an affidavit of which the following is a copy:

“ Territory of New Mexico, County of Sierra. Edward C. Wade, of lawful age, being duly sworn, upon his oath states that heretofore, to-wit, in the month of March, A. D. 1884, he was, by the governor of the territory of New Mexico, in due form of law, nominated for the office of district attorney for the Third judicial district of said territory; that such nomination was transmitted and submitted to the legislative council of said territory, and by said council confirmed, advised, and consented to, and that thereafter, on the eleventh day of March, A. D. 1884, the said governor, by and with the advice and consent of said legislative council, then in session at the capitol of said territory, said advice and consent being given upon said nomination as aforesaid, appointed and commissioned him as such district attorney of said Third judicial district in due form of law; that he thereupon and thereafter took the oath of office, and entered upon his duties as such district attorney, and was legally possessed of an performed the duties of said office, and exercised the powers and received the emoluments thereof, from the time of his said appointment to and induction into said office, as aforesaid, until the ninth day of November, A. D. 1885; that from and after his induction into said office, as aforesaid, he never resigned, abandoned, or forfeited the same, nor was he ever removed or displaced from said office by the judgment of any court, nor has the said office, since his appointment thereto, been abolished, or its tenure in anywise changed or altered, nor has his term expired; that, by virtue of his said appointment, he was (as he is advised and believes) legally entitled to hold said office, perform the duties and receive the emoluments thereof, for the full term of two years, and thereafter until his successor to said office should be lawfully appointed and qualified. He further states that on the ninth day of November, A. D. 1885, one Singleton M. Ashenfelter, illegally claiming said office under color of an unauthorized, illegal, and void appointment, (as affiant is advised and believes,) made long after the date of affiant's appointment, by the governor of the territory of New Mexico, without the advice and consent of the legislative council of said territory, and at a time when said council was not in session, usurped, intruded into, and unlawfully (as affiant is advised and believes) held said office of district attorney for the said Third judicial district of the territory of New Mexico, and still does unlawfully (as affiant is advised and believes) hold said office, perform and execute the powers and duties thereof, and claim the emoluments of the same; and that since the said ninth day of November, A. D. 1885, the said Singleton M. Ashenfelter unlawfully (as affiant is advised and believes) excluded, and still excludes, this affiant from said office, and has refused, and still refuses, to allow this affiant to hold and execute the said office or to receive the emoluments thereof. Affiant further says that he is desirous that the title of this affiant and of said Ashenfelter to said office, and the right to exercise its functions, and receive its emoluments, should be judicially inquired into and determined, and that to that end a rule may be made upon the facts herein stated, upon motion of the attorney general of the territory of New Mexico, for said territory, upon the said Singleton M. Ashenfelter to show cause, if any he hath, why leave should not be given to file an information in the nature of a quo warranto in behalf of said territory, upon the relation of this affiant, the said Edward C. Wade, against the said Singleton M. Ashenfelter for usurping, intruding into, and unlawfully holding and exercising said office as aforesaid.

[Signed] “EDWARD C. WADE.

Subscribed and sworn to before me this tenth day of November, A. D. 1885.

GEORGE R. BOWMAN, Clerk.”

And thereupon William Breeden, attorney general, appeared in open court, and moved for a rule upon Singleton M. Ashenfelter, predicated on said affidavit, to show cause, if any he had, why the said attorney general should not have leave to file an information in the nature of a quo warranto in said court on behalf of the territory of New Mexico, on relation of said Wade, and against said Ashenfelter, for having illegally usurped and intruded into the office of district attorney for the Third judicial district of said territory. On the same day the court granted said rule, requiring the respondent to so appear in said court on the 12th. On that day, Ashenfelter being in court in person, and it having been shown that the rule to appear had been served upon him as ordered, and no cause being shown, on motion of the attorney general leave was given to file such information, and the same was then and there in open court on such leave filed. On the thirteenth day of November the attorney general appeared in open court, and moved for an order directing process to issue upon said information, which process was on the seventeenth day of said month ordered by the court, and which thereupon issued in the following words:

“ The Territory of New Mexico to Singleton M. Ashenfelter, Greeting: Whereas, Wm. Breeden, attorney general for the territory of New Mexico, on the relation of Edward C. Wade, hath filed in the district court for the Third judicial district of the territory of New Mexico, sitting within and for the county of Sierra, by leave of the court, an information in the nature of a quo warranto alleging and charging that you, the said Singleton M. Ashenfelter, have unlawfully usurped, intruded into, and held the office of district attorney for the Third judicial district of the territory of New Mexico, and unlawfully exercised the powers and functions thereof, and that you, the said Singleton M. Ashenfelter, still unlawfully hold said office, and exercise the powers and functions thereof, without any authority of law, and to the exclusion of the said Edward C. Wade, who, it is alleged, is the legally appointed district attorney for said district, and lawfully entitled to the possession of said office, and to hold and enjoy and to exercise the powers and functions thereof, therefore you, the said Singleton M. Ashenfelter, are hereby commanded that, laying all other matters and things aside, you do appear, at 10 o'clock A. M., on Wednesday, November 18, 1885, before the said district court, now sitting in said county of Sierra, at the court-house of said county, then and there to answer unto said information concerning the matters therein alleged and charged against you, and observe what the said court shall direct in this behalf. And this you do under penalty of the law, and on pain of such judgment and other process as said court shall award.

“Witness the Hon. WM. F. HENDERSON, associate justice of the supreme court of the territory of New Mexico, and judge of the Third judicial district court thereof, and the seal of said court, this seventeenth day of November, A. D. 1885.

[Seal] “GEORGE R. BOWMAN, Clerk.”

On which said writ the sheriff of Sierra county, New Mexico, on the seventeenth day of November, 1885, made the following return, and filed said writ, with said return, with the clerk:

“I certify that I served the within writ upon the within-named Singleton M. Ashenfelter at the county of Sierra, this, the seventeenth, day of November, A. D. 1885, at 10 o'clock A. M.

THOMAS MURPHY, Sheriff of Sierra County.”

This process was served on the day it issued, and the next day, the 18th, the following stipulation was filed in court:

“THE TERRITORY OF NEW MEXICO, COUNTY OF SIERRA, SS.-IN THE DISTRICT COURT FOR THE THIRD JUDICIAL DISTRICT. November Term, 1885.

“The Territory of New Mexico, on the Relation of Edward C. Wade, vs. Singleton M. Ashenfelter.

“In order to expedite and obtain a speedy determination of this cause, and to save the defendant all of the rights that he may have touching the jurisdiction of the court over his person herein, and that none of them may be waived, it is hereby agreed that the plea to jurisdiction and the answer may be filed and considered at the same time, without the general appearance, which may be entered for the purpose of such answer, being considered as giving jurisdiction over the person of the defendant, but that the question as to whether the court acquired jurisdiction over the person of the defendant by reason of a process of summons issued by the court during the present term of this court, and made returnable to the present term of this court, may be considered the same as if no general answer had been made, but only a special appearance for that...