Welter v. Witt.

• Decision Date: 31 August 1911
• Citation: 117 P. 860,16 N.M. 335
• Parties: TERRITORY ex rel. WELTERv.WITT.
• Court: New Mexico Supreme Court

16 N.M. 335

117 P. 860

TERRITORY ex rel. WELTER

v.WITT.

Supreme Court of the Territory of New Mexico.

Aug. 31, 1911.

Appeal from District Court, Chaves County; before Chief Justice Pope.

Mandamus by the Territory, on the relation of A. J. Welter, against M. W. Witt. From a proforma judgment for respondent, relator appeals. Affirmed.

The enabling act, Act June 20, 1910, c. 310, 36 Stat. 561, § 5, provides that the county and territorial officers shall hold over until the admission of the territory. Comp.Laws 1897, §§ 3230, 3232, 3243, 3337, recognize the jurisdiction of the justices of the peace to be coextensive with the limits of the county in which they have been elected; but section 3224 provides that justices of the peace shall be elected in odd-numbered years, while section 1698 provides for the election of county officers in even-numbered years. Const. art. 6, § 26, provides for the office of justices of the peace, but declares them to be precinct officers. Held that, while a precinct has no corporate existence, a justice of the peace was not a “county officer” within the purview of the enabling act, and did not hold over until the admission of the territory.

W. C. Reid, J. M. Hervey, and J. M. O'Brien, for appellant. Dye & Dunn, for appellee.

WRIGHT, J.

This is a proceeding by information, in the nature of quo warranto, to try the title of appellee to the office of justice of the peace in precinct No. 1, Chaves county, N. M. The judgment of the lower court was pro forma.

It appears that the appellant, A. J. Welter, was the duly elected, qualified, commissioned, and acting justice of the peace at and prior to the passage of the act of Congress of June 20, 1910, c. 310, 36 Stat. 557, known as the ““Enabling Act.” The appellee claims and now holds the said office as a result of an election held in January, 1911. The title of appellee to the office depends upon the validity of the election held in January, 1911. This election was called and held under the provisions of the statute of New Mexico, upon the regularly appointed day for such election.

The contention of the appellant is that the act of Congress to enable New Mexico and Arizona to form a state government, approved June 20, 1910, in section 5 thereof, continues in office until the admission of the commonwealth into the Union as a state all territorial and county officers, and that a justice of the peace is a county officer within the terms of said section 5.

Section 5 of the act of Congress of June 20, 1910, after providing for the first election under the new state government to be formed under the provisions of said act, provides: “Until the issuance of said proclamation by the President of the United States and until the said state is so admitted into the Union and said officers are elected and qualified under the provisions of the Constitution, the county and territorial officers of said territory, including the delegate in Congress thereof, elected at the general election in 1908, shall continue to discharge the duties of their respective offices in and for said territory; provided that no session of the territorial legislative assembly shall be held in 1911.”

The contention of the appellant that a justice of the peace in New Mexico must be considered as a county officer is based upon various provisions of the statute regulating the conduct and jurisdiction of justices of the peace. Section 3230, C. L. 1897, provides that the jurisdiction of the justices of the peace shall be coextensive with the limits of the county in which they shall be elected, with a proviso that they shall reside and hold their office in the precinct for which they may be elected. See, also, section 3232, C. L. 1897. This jurisdiction as to civil cases is apparently circumscribed in another section-section 3337, C. L. 1897. All process by a justice of the peace is directed to the “sheriff or any constable of the proper county,” and may be executed anywhere in the county. Section 3243, C. L. 1897. Justices of the peace are also required to make quarterly reports to the county commissioners. Section 1792, C. L. 1897. It is also unquestioned in New Mexico that a precinct has no corporate existence, but is a mere political subdivision of the county.

Arguing from the foregoing, counsel for appellant contend that a justice of the peace is a county officer. With this contention we cannot agree. There are numerous other provisions of the statutes which clearly recognize a distinction between county and precinct officers. Section 1698, C. L. 1897, establishes the Tuesday after the first Monday in November, of the even-numbered years, as the day of election of the delegate to Congress, all the county officers required by law to be elected in this territory, and for members of the Legislative Assembly. Section 3224, C. L. 1897, provides for the election of justices of the peace in January of each...