Delgado v. Chavez ( 1891 )

Freeman, J.

This is an application for writ of habeas corpus to be discharged from the custody of the sheriff of Santa Fe county, New Mexico. The petition is very voluminous, and sets out in full a certain proceeding in mandamus instituted against the relator by Abraham Staab, Juan Garcia, and William H. Nesbitt, on the thirteenth day of January, 1891, seeking to^ compel the relator, as probate clerk of the county of' Santa Fe and ex officio clerk of the board of county commissioners, to perform certain official duties. This is one of the unfortunate proceedings that grew out of the closely contested election held in the county of Santa Fe on the fourth of November, 1890. Rival sets of county commissioners claim to have been elected. Candidates of both parties held what they claimed to be valid and proper certificates of election. An alternative writ of mandamus was issued against the relator, commanding him to recognize the petitioners to that writ as the legally elected board. In his answer to the writ the relator admitted that he had declined to recognize the petitioners, and sets out at length his views as to who were entitled to exercise the functions of county commissioners. The cause having been heard by the district judge, a peremptory writ was issued. The relator refusing to obey the writ, an attachment was issued, and on the hearing he was committed to jail until he should purge himself of the contempt.

habeas corpus: t”mpt?”u”isdcic“' tlon' In the case of John H. Sloan' and Teodoro Martinez (heard and determined at the present term of this court), we have discussed at some length the power of the district judge to issue the writs of mandamus and injunction, and to punish for contempts. Much of what has been said in that case finds appropriate application to this. The case at bar, however, differs from the case of Sloan and Martinez in this: that the latter case involved the right of the district judge to direct the canvassers to canvass the votes east at the election, while m the present case the question involved is as to the jurisdiction of the court to issue the writ to the probate clerk, directing him which of the two rival boards he should recognize as the lawful body. We have no doubt but that the judge had jurisdiction of the subject-matter and of the parties; and this conclusion settles, as we think, the whole question raised by this proceeding.

The writ of mandamus long since ceased to be a prerogative writ. It is no longer an extraordinary proceeding, except in the sense that an injunction, attachment, or other like process is extraordinary. “It is equally well settled that a mandamus in modern practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ.” Com. of Ky. v. Dennison, 24 How. 97. It would be a vain and useless exhibition of research to undertake to point out the almost innumerable instances in which this writ has been successfully invoked. The following instances will serve to illustrate the general purposes for which the writ will lie: To compel the allowance of an appeal, Ex parte Cutting, 4 Otto, 14; to allow a pension, Decatur v. Paulding, 14 Pet. 497; to compel district judge to issue execution, Postmaster Gen. v. Trigg, 11 Pet. 173; to compel railroad company to deliver rolling stock, Ex parte Milwaukee R. Co., 5 Wall. 825; to compel counties to pay judgments, Supervisors v. U. S., 4 Wall. 435; to enforce mandates, U. S. v. Fossatt, 21 How. 445; to reinstate cause, Ex parte Bradstreet, 6 Pet. 774; to compel levy of tax to pay judgment, U. S. v. Council of Keokuk, 6 Wall. 514; to compel court to enter judgment, Insurance Co. v. Adams, 9 Pet. 573; to compel court to sign bill of exceptions, Ex parte Crane, 5 Pet. 190; to compel postmaster general to perform ministerial duty, Kendall v. U. S., 12 Pet. 524; to compel register of land office to enter application for land, McCluney v. Silliman, 2 Wheat. 369; to compel court of claims to entertain motion for new trial, Ex parte Russell, 13 Wall. 664; to restore an attorney disbarred by court having no jurisdiction, Ex parte Bradley, 7 Wall. 364; to compel town officers to audit charges against the town, Lower v. U. S., 91 U. S. 536. In Ohio, Alabama, California, Maryland, North Carolina, Indiana, and Montana the writ will lie to compel the governor of the state to perform a merely ministerial duty. High Extr. Rem., sec. 119. It has been also successfully invoked to compel an old officer to deliver records which concern justice to the new one; to compel the clerk of a company to deliver up books, etc.; or the steward of a borough to attend with the books at the next corporate assembly, etc., 5 Com. Dig. 34. In the case of Railway Frog Co. v. Haven et al., 101 Mass. 403, it was said: “It is well settled that it can be granted, for instance, to compel a town clerk or clerk of the public corporation, whose office has expired, to deliver over to his successor his common seal, books,” etc. In the case of Conlin v. Aldrich, 98 Mass. 557, the following facts appeared. The town meeting had been held at which Conlin was chosen as a member of the school committee for the term- of three years; but the polls were open and the election was made after sunset. This election was treated as invalid, and another meeting called, at which Burditt was elected to the same office. The town clerk gave to Conlin a certificate of his election, but Aldrich and Start, who were the two other members of the committee, refused to recognize him as their associate, or to permit him to act as such; they recognizing Burditt as properly elected. The application of Conlin for a writ of mandamus was allowed; Hoak, J., declaring: “It is not very strongly contested by the respondents that the appropriate remedy for the petitioner, if he is entitled to any relief, is the writ of mandamus. That point is substantially settled by the case of In re Strong, 20 Pick. 484.”

This ease, like the one at bar, presents the condition of rival claimants for the same position. So, also, of the case just cited from 101 Mass., where it was said: “The respondents insist, however, that inasmuch as they are actually in possession of the offices in question under a claim of right, and exercising the functions annexed to them, the only mode of controverting their title is by writ of quo warranto. The fact that the offices are de facto filled and occupied by rival claimants is by no means decisive, and not very material upon this point. It has been so decided in the case of conflicting claims to the office of county commissioner (In re Strong, 20 Pick. 484), also in the case of members of a school committee (Conlin v. Aldrich, 98 Mass. 557).” In the case of Jennings v. Fisher et al., 61 Mass. 239, it was said: “This writ, no doubt, is more freely and frequently granted at the present time than it was formerly. It lies to a former town clerk or clerk of a company to deliver to his successor the common seal, books, papers, and records of the corporation, which belong to his custody. Indeed, it lies to any person who happens to have the books of a corporation in his possession, and refuses to deliver them up. In the case of Kimball v. Lamprey, 19 N. H. 220, Gilchrist, C. J., said: “There are numerous authorities tending to show in what case a writ of mandamus is the appropriate remedy. In the case of Com. v. Athearn, 3 Mass. 285, it is estimated by Pabsons, C. J., that the proper mode is for the successor of the town clerk to take the oath of office, and to demand of the former clerk the records, and, if they are refused, then to move for a mandamus to command him to deliver over the records. It was alleged in that case that the defendant was in possession of the office, but was not so legally. In the First Parish in Sudbury v. Stearns, 21 Pick. 148, trover was brought against the defendant for the book of record of the parish. His defense was that he was the clerk, and, as such, had a right to the possession of the records. Mobton, J., says: ‘A mandamus would doubtless be a more appropriate and effectual remedy to compel the delivery of the records to the legal officer; ’ and he cites the case of Com. v. Athearn. The rights of persons acting colore officii can be tried only in an information in the nature of a quo warranto or on a writ of mandamus.” To the same effect is the doctrine laid down by the supreme court of Vermont in the case of Allen Stone et al. v. Small et al., the syllabus of which is as follows: “(1) Mandamus, is the proper remedy to compel the old trustees of an incorporated village, attempting to hold over, to deliver to the new board the books, papers, and articles of personal property in their possession belonging to the village, and to prevent their interfering with the new trustees in the exercise of their office. (2) When an act incorporating a village imperatively declares that its trustees shall be annually elected on a certain day, the majority of a meeting called for the purpose of electing such officers has no power to adjourn the meeting without day, in fraud of the law and the minority; and if a legal minority, immediately following such adjournment, reorganizes the meeting and elects trustees, they are entitled to hold their office.

These authorities, we think, demonstrate the fact that although the proceeding by mandamus against the relator involved incidentally, if not directly, the title set up by the rival set of commissioners, the mandamus was not for that reason void. It was resisted, however, by the relator on the ground that it could not be used as a means of contesting the right of the rival claimants to the office. There might be much force in the reasons assigned in support of this doctrine if alleged against the propriety of the proceedings by mandamus; but the mistake of the relator lay in supposing that this objection could be successfully interposed .as a justification for a refusal to obey the mandate of the court. There is a marked difference between the utter want of jurisdiction and an erroneous exercise thereof. The former may be pleaded as a justification for a refusal to obey the order of the court, but the latter can not. Cohen v. Jones, 5 Cal. 495; Church Hab. Corp., sec. 317. In the case of People ex rel. Garbrett v. R. & S. L. Railroad Co., 76 N. Y. 298, it was said: “The question of the propriety of that order is not now before us; the present appeal being only from the order adjudging the appellants guilty of contempt in not having obeyed the writ.” “It is insisted, however, that the mandamus was void for the reason that it was vague and uncertain in its command; that it required the relator, not only to recognize certain parties as entitled to exercise the functions of the office, but that he was also commanded, among other impracticable things, to enter all of the past, as well as the future, orders of said board; that the writ, in effect, commanded him to do what was not then, and might never become, this duty.” This writ did not, as we understand it, seek to impose on the relator any impracticable or difficult duty. It simply required him to perform his usual and ordinary duties as ex officio clerk to the board. Whatever this board had already done that had not been recorded was to be recorded, and he was to attend from time to time, in the future, to perform his usual functions in the usual way. It is not pretended that it was not in his power to obey the leading and all-important command laid upon him. It is not possible that he could have misapprehended the principal purpose of the writ, which was to direct him to recognize in his official capacity one of the rival sets of claimants, and to refuse to recognize the other. He seems to have misapprehended entirely the functions of his office. He was not authorized by law to determine who were, and who were not, the legally elected commissioners. That question had already been determined, so far, at least, as to bring his ministerial duties within the jurisdiction of the court. It does not follow, because the court ordered him to do that which in part he could not do, that, therefore, the writ was void. In the ease of U. S. ex rel. v. Labette Co., 2 McCrary, 27, a writ of mandamus was issued to compel the supervisors to levy, collect, and pay over certain taxes. The respondents levied the tax, but returned that they had no power, process, or authority by which they could collect it. A writ of attachment having been issued, they were discharged for the reason that, having done all in their power to obey the writ, they were not guilty of contempt. This question was discussed at some length in People ex rel. v. Nostrand, 46 N. Y. 378. In that case it was said: “It was also urged upon the argument that the order should be reversed because the precise amount is not specified in the peremptory writ. This position is not tenable. All that is necessary is that the thing to be done should be described with reasonable certainty— with such certainty that the defendant will know what is required of him. This rule is peculiarly applicable to-public officers who are commanded to perform a public-duty, and especially where the facts constituting the-act are within their personal knowledge.” After citing many authorities in support of this view, the court proceeds to say: “These and other authorities establish that it is sufficient to inform public officers in a general way what their duty is, and to command its performance, unless they can justify or excuse the neglect. They can not shield themselves behind technical objections to the descriptive part of the act to be done.”

Numerous other authorities might be cited in support of the general proposition that on an application for writ of habeas corpus to be discharged from commitment for contempt, it can not be shown that the proceedings out of which the action for contempt proceeded were irregular. Cooley Const. Lim. 348, and cases cited. And in support of the proposition that a proceeding by mandamus is not void by reason of mere irregularity, but that it may be good as to part, and bad as to part, we cite: Ex parte Parks, 93 U. S. 18; Ex parte Rowland, 104 U. S. 604; Ex parte Clark, 100 U. S. 399; and Ex parte Diebold, 100 U. S. 37. Assuming, however, for the purpose of the argument, that the relator did not properly comprehend the terms of the mandate addressed to him; assuming that, in the presence of rival claimants for the office, he was at a loss to know how he should proceed; assuming that he honestly believed that the petitioners in the mandamus proceeding had not been elected, and were not, therefore, entitled to exercise the functions of the office— what, then, was his plain and unmistakable duty? Was it his province to make an issue with a court of competent jurisdiction, and, after having the questions thus presented decided against him, to defy the power of the court? Can he escape now the rightful consequences of his contumacy by pretending that he did not understand what was required of him? On this point the case already referred to in 46 N. Y. is instructive. It was there said (page 378): “If he desired in good faith to comply with the writ, but was unable to do so from the uncertainty of the mandate, the court would doubtless relieve him. But in this case there was no room for doubt. The act to be performed was specifically described, and there is no pretense that the appellant did not know what was required, or that he was unable to perform it.” In view of these considerations, and in view of the opinion of this court already expressed in the case referred to of Sloan and Martinez, we are of the opinion that the writ must be dismissed, and the relator remanded to the custody of the sheriff to be confined in the county jail until he purges himself of the contempt for which he was committed ; and it is so ordered.

Lee and McEie, JJ., concur.