De Vigil v. Stroup

Citations

• 15 N.M. 544
• 110 P. 830

Syllabus

<p>SYLLABUS.</p> <p>1. A de jure officer may recover from a de facto officer, fees and emoluments of the office which, the de facto officer had wrongfully intruded upon and held. Albright v. Sandoval, 14 N. M. 345.</p> <p>2. In this Territory the writ of quo warranto is a writ of grace and not of right and can only be obtained by permission of the attorney general, and a private person cannot have the writ to adjudicate his title to an office. The proceeding in the nature of a quo warranto goes only to removing the intruder.</p> <p>3.A de jure officer may maintain an action to recover from a de facto officer the fees and emoluments of the office without having first his title established by a proceeding in guo warranto.</p> <p>4. The effect of a judgment of ouster in guo warranto would only have put the intruder out of office and would not have put plaintiff in.</p> <p>5. If the commission of the governor reciting a vacancy and appointing defendant to fill it, was a nullity, it should not he permitted to stand unless grave public interests reguire it, and certainly not as between individuals. No such public reasons exist why' the title of the defendant should stand unimpeachable.</p>