Eldodt v. Territory of New Mexico ex rel. Vaughn

Citations

• 10 N.M. 141
• 10 Gild. 141

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Officer — Right to Possession of Books and Other Property — Mandamus.—One who possesses prima facie title to an office, may compel delivery to himself of the books, papers, seal and other property, insignia and paraphernalia of such office, by a proceeding in mandamus; and the question of the 'actual or ultimate title to the office may not be raised in such proceeding, but must be reserved for an appropriate proceeding brought directly for the purpose.</p> <p>Conklin v. Cunningham, 7 N. M. 44s, followed.</p> <p>2. Public Officer — Appointment by Governor — Presumption Arising Therefrom. — A strong, prima facie presumption is indulged in favor of the legality and regularity of the acts of the Executive and, where it appears that the Governor has undertaken to appoint to an office which, under a certain state of facts, he is empowered to fill, it will be presumed, in the first instance, that the requisite facts existed at the date of the appointment, and that the appointment was regular and valid.</p> <p>Following Conklin v. Cunningham, supra.</p> <p>3. Public Officer — Appointment by Governor — Appointee’s Prima Facie Title and Right to Possession of Belongings in Office— Mandamus. — On March 2, 1897, E was appointed Treasurer of New Mexico, by the Governor, by and with the advice and consent of the legislative council, to hold office for two years and until his successor should be appointed. On June 23, 1899, (the Legislature for that year having adjourned, without the confirmation by the-council of any nominee to the said office), V was appointed and commissioned by the Governor to be Territorial Treasurer. V then having qualified in the form prescribed by statute, and E having, upon demand, refused to deliver to V the books, papers, seal,, insignia and paraphernalia of the office in question. Held: that V was, prima facie, Treasurer of New Mexico, and entitled to the immediate possession of the aforesaid belongings, and a