10 N.M. 141 | N.M. | 1900
Tt is earnestly and ably contended by counsel for the plaintiff in error, that, the office involved in this controversy being a territorial office, the power of the Governor to fill it by appointment without the advice and consent of the Territorial council and during a recess of the council, is, by section 8 of the Organic Act of 1850, and section 1858 of the Revised Statutes of the United States, limited to cases of death or resignation, and that under no circumstances has the Governor power to remove the treasurer and to appoint his successor. Several decisions of this court, besides numerous other authorities, are cited in support of this contention. The question thus raised is one, however, which we do not feel called upon to decide in the case at bar. Section 1858, R. S. U. S., is as follows:
“In any of the territories, whenever a vacancy happens from resignation, or death, during the recess of the legislative council, in any office which by the organic act of any territory, is to be filled by appointment of the governor, by and with the advice and consent of the council, the governor shall fill such vacancy by granting a commission which shall expire at the end of the next session of the legislative council.”
“This appointment is a judicial act, for the justices must first determine and adjudge that there is a vacancy in the office, and that the town has neglected to fill it. It is not traversable in such a collateral action. The appointment remains valid until it is set aside or quashed in the regular course upon certiorari. If two justices should appoint him (the constable) it would be a case in which no jurisdiction existed, and the appointment would be null and void. The distinction in the books is between the cases where the authority (of the constable) proceeds from • a source having jurisdiction over the subject matter, and from one that does not; the ministerial officer can justify in the one case and not in the other.”
In People v. Seaman, supra,, which was a quo war-ranto proceeding to determine election to office, the same court remarked (p. 112) : “It was held in Wood v. Peake (8 John. Rep. 69) sanctioned by Wildy v. Washburn (16 id., 49) that such appointments by justices were judicial acts, which were not to be questioned in any collateral proceeding between -individuals. This is sound doctrine and is equally applicable to the decision of a board of canvassers declaring the results of an election to office.” In fact, we incline to the opinion that an appointment may often involve much more of the judicial element than does the act of adding up election returns, which is “a mere mechanical, or rather, mathematical, duty,” as observed by the court in People v. Head, 25 Ill. 290, or, “a simple matter of arithmetic,” as remarked in Morgan v. Quackenbach, 22 Barb. 79. See generally: High on Ex. Legal Remedies, sections 73-75; Corwell v. Lambert, 10 Minn. 369; Comm. v. Athern, 3 Mass. 286; Re Strong petitioner, 20 Pick. 495; Ewing v. Turner, 35 Pac. Rep. 951; State ex rel. v. Churchill, 15 Minn. 455; State ex rel. v. Sherwood, 15 Minn. 221; People v. Head, 25 Ill. 287.
It follows that the action of the court below in quashing those portions of the respondent’s return which alleged the possession and title of the office to be in him and denied the power of the Governor to make the appointment of the relator, and in excluding the evidence offered by the respondent in support of those allegations was proper.
As to the assignment of error based upon the overruling of the respondent’s motion for a trial by jury, we are constrained to the conclusion that the action of the court below must be sustained. The same point was made without avail before this court, under circumstances almost identical in this respect with those of the case at bar. Conklin v. Cunningham, supra. “The determination of the facts by a jury in a mandamus case is not necessarily preliminary to a valid judgment.” In re Delgado, 140 U. S. 586, 588.
There being no error in the record, the judgment of the court below is affirmed.