16 N.M. 335 | N.M. | 1911
OPINION OP THE COURT.
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, New Mexico. The judgment of the lower court was pro-forma. It appears that the appellant, A. J. Welter, was the duty elécted, qualified, commissioned and acting justice of the-peace at and prior to the passage of the Act of Congress of June 20, 1910, 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 co-extensivc 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. Sec, also, C. L. 1897, see. 3232. 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. Sec. 3243, C. L. 1897. Justices of the peace are also required to make quarterly reports to the county commissioners. Sec. 1792, C. L. 1897. It is also unquestioned in New Mexico that a precinct has no corporate existence, but is a mere political sub-division of the county.
Adopting the argument of the court (with necessary changes in phraseology) in the case of Railroad Company v. Rice, 14 Pac. 229, (Kas.) we admit that justices of the peace are, in some sense, justices of the peace in their respective counties and also in the territory, but, with the exceptions mentioned in the statutes, a justice of the peace can perform his official acts only in his own precinct. His court, as a court, has no existence outside of the limits of his own precinct'. It necessarily follows, therefore, that justices of the peace in this territory must be considered, as precinct, and not county officers, within the terms of section 5, of the Act of June 20th, 1910.