1. The institution of proceedings in quo warranto by one previously in possession of the office of sheriff, against one claiming under appointment by the governor, is an admission of the possession and use of such office by the latter, precluding a denial thereof in a subsequent proceeding in mandamus by the latter for the possession of the books and property pertaining to the office.

2. Issues of law, upon which the legal title to an office depends, cannot be adjudicated in mandamus.

3. In mandamus by one appointed to the office of sheriff by the governor in the place of one removed for cause specified by statute, the presumption that the executive acted within the limits of his authority is conclusive.

4. An appointment of sheriff by the executive is complete on delivery of the commission. 5. The appointment and commission as sheriff by the executive gives the appointee prima facie title to the office.

6. A prior notice of default is not necessary to the removal by the governor of an officer for shortage in his accounts. Freeman, J., dissenting.

7. In mandamus for the books and property of the office of sheriff, where it appears conclusively from the conduct of defendant that there would have been a refusal to comply if i a demand had been made, no previous demand is necessary.

Error to district court, Santa Fé county; before Justice Seeds.

Mandamus, on the relation of William P. Cunningham, against Charles M. Conklin, for the books and property pertaining to the office of sheriff of Santa Fé county. From a judgment granting the writ, defendant brings error. Affirmed.

T. B. Catron, Charles A. Spiess, and E. L. Bartlett, for plaintiff in error. H. L. Warren, for defendant in error.

SMITH, C. J. This was an action brought in the district court of Santa Fé county by the petitioner, William P. Cunningham, for the writ of mandamus to compel the appellant and plaintiff in error to turn over to the appellee all the books, papers, property, and prisoners pertaining to the office of sheriff and ex officio collector of the county of Santa Fé, the said petitioner alleging that on the 27th day of June, 1893, Charles M. Conklin was summarily removed from the oflice of sheriff of said county by the governor of the territory, and the said Cunningham appointed sheriff of the said county to fill the vacancy caused by the removal of the said Conklin; that the order of removal was served on said Conklin on the 28th day of June, 1893; that on the 30th day of June, 1893, the said Cunningham duly qualified as such sheriff by filing a bond in the district court of Santa Fé, and taking the oath of office as required by law. The said petitioner further shows that said Conklin refused to deliver to him, and still refuses to deliver to

him, the books, property, etc., pertaining to the office of said sheriff, and that he thereupon prayed the district court for the said county for an alternative writ of mandamus, commanding the said Conklin to turn over the said property to him, and that the writ was accordingly allowed by said court, returnable the 7th day of July, 1893, and served upon the said Conklin upon the 5th day of said month. Respondent, Charles M. Conklin, filed his answer to such writ on the 7th day of July, 1893, alleging that he was duly elected sheriff of Santa Fé county November 8, 1892, to serve for two years from January 1, 1893; qualified and acted as such sheriff; denied that he was summarily removed therefrom by an order of the governor of the territory; denied the right of the governor to remove him, and to appoint Cunningham in his place; denied that the said Cunningham was the sheriff of the said county; denied that said Cunningham was entitled to possession of the said office of sheriff, or of the books or any property pertaining to the same, or that it was his duty to deliver the same to the said Cunningham.

It appears from the petition (by the order of the governor, embraced therein) that the governor acted under and pursuant to authority conferred upon him by section 27, c. 25, of the legislative assembly of the territory, passed at the twenty-ninth session thereof, and that it was shown to him, by satisfactory proof, that Charles M. Conklin, sheriff and ex officio collector of the county of Santa Fé, had collected various sums of money belonging to the school fund, and failed to pay over the same, and that thereupon, by virtue of the authority so conferred, and in fulfillment of the duty imposed upon him, he removed the said Conklin from the office of sheriff of said county on the 27th day of June, 1893. It further appears by said petition (from the order of the governor, contained therein) that the said governor, on the 27th day of June, 1893, appointed the said Cunningham sheriff and ex officio collector of the county of Santa Fé, to fill the vacancy occasioned by the removal of Charles M. Conklin from said office; and it is shown by the respondent, in his return, that the said Cunningham gave bond as such official, in the district court of the said county, on the 30th day of June. Respondent denies that said section 27 of chapter 25, before referred to, was in full effect in this territory on the 27th day of June, 1893, or that it was shown by satisfactory proof that he, the said Conklin, had collected any money belonging to the school fund of said county, and failed to pay over the same, within the limitation specified in said section. Respondent alleges that no notice of his alleged default was ever given; that the governor was not authorized to inquire into the same; and that such charges, if made against him, should have been duly investigated in the district court for said county. Respondent

further represents that on the 30th of June, 1893, he obtained an injunction from the district court for said county, restraining the said Cunningham from entering or attempting to enter upon the duties of the office of sheriff of said county, or in any manner interfering with him (respondent) in the discharge of the same. Respondent further shows that on the 3d day of July, 1893, he obtained an order upon the said Cunningham from the district court of said county, returnable the 10th day of July, 1893, to show cause why a writ of quo warranto should not be issued against him, to determine the title to the said office of sheriff of said county, as between him (the respondent) and the said Cunningham, the said writ being declared by the respondent "the proper and legal mode for determining the same," and that the said order was duly served upon the said Cunningham. Respondent thereupon declines to comply with the requirements of the said alternative writ of mandamus, except to show cause, and submits that the said writ should not be made peremptory against him. It appears from the record in the injunction proceeding that the injunction therein granted was dissolved on the 8th day of July, 1893. The information in the nature of quo warranto referred to by respondent is now pending and undetermined in the district court of the first judicial district. On the 7th day of July the motion of respondent to quash the service and return of said alternative writ upon him was overruled, to which order respondent excepted. On the 8th day of July, 1893, respondent moved the court for a jury to try the issues of fact joined in the cause, upon the allegations contained in the writ and the answer thereto, which said motion the court overruled, and the respondent then and there excepted to such judgment. On the 8th day of July, 1893, the relator, Cunningham, moved for a peremptory writ of mandamus upon the alternative writ, for the reason that no material issues of fact were joined, and only questions of law were raised, which said motion was resisted by respondent; but the court granted the same, ordering the said respondent to turn over to the said petitioner all books and papers pertaining to the office of said sheriff of said county, and also the jail thereof, by July 12, 1893, to which action of the court the respondent excepted. Respondent, then and there, on the said 8th day of July, 1893, moved the court for a new trial, and also for an arrest of judgment, which motion the court overruled, and to which judgment respondent then and there objected and excepted, and took an appeal to this court. On the 11th day of July, 1893, the peremptory writ of mandamus was issued, commanding said Conklin to surrender and deliver to said Cunningham all books, papers, and property pertaining to the sheriffalty of the county of Santa Fé, on or before the 12th day of July,

1893, which order was duly complied with on the said 12th day of July, 1893.

The plaintiff in error assigns the following as error in the court below: First. In denying the motion of plaintiff in error to quash the return and service of the alternative writ of mandamus, upon the several grounds in said motion stated. Second. In denying the motion of plaintiff in error for a jury, upon the several grounds in said motion stated. Third. In granting the motion of defendant in error for a peremptory writ of mandamus, upon the several grounds therein stated. Fourth. In granting a peremptory writ of mandamus. Fifth. In granting said peremptory writ of mandamus, it appearing from the record that no demand had been made upon said Charles M. Conklin for the office in question. Sixth. In denying the motion of plaintiff in error for a new trial and arrest of judgment, upon the several grounds therein stated.

Before considering these alleged errors, we will present the attitude in which the plaintiff in error appears by the repugnant allegations of his return. Respondent denied in his answer that he was summarily removed from the office of sheriff of said county on the 27th day of June, 1893; denied that the relator, Cunningham, was appointed to the said office on the 27th day of June, 1893, and was in possession of said office with any right or title, and claims that he (the respondent) was in possession of said office, and discharging the duties thereof, on the 7th day of July, 1893, in disregard of the order of the executive of the territory removing him, and appointing W. P. Cunningham. Respondent thereafter, in said answer, shows that on the 3d day of July, 1893, he obtained from the district court for the county of Santa Fé an order in the nature of quo warranto upon the petitioner, Cunningham, to determine the title to the office of sheriff of said county as between him and the said Cunningham. It is conclusive that this respondent, by recourse to the writ of quo warranto on the 3d day of July, 1893, to establish the title to the office of sheriff, as against Cunningham, admitted that he had been deprived of the possession of said office by the order of the governor removing him, and that it was in Cunningham, by the appointment of the governor, at the date of the institution of the proceedings in quo warranto. Quo warranto, in its nature, involves a possession and user of an office by another than the relator, for without such foundation such a writ should not be issued, and cannot be maintained. Conklin, in his application for the writ, must have alleged-did allegethat Cunningham was de facto in charge of the said sheriffalty, or the order in the nature of quo warranto upon Cunningham. could not have been granted. It is palpable that the denial in this proceeding by mandamus of the effect of the orders of the exec

In

utive, the one removing him, and the other appointing Cunningham in his place, is inconsistent with the admission of their operation in the quo warranto information. the one the possession of said office by Cunningham is denied; in the other, such possession is an essential admission. The operation of law resulting from the facts alleged in the alternative writ of mandamus is traversed by him as respondent (though such pleading is irregular and defective), but is asserted by him as petitioner in the appiication for a writ of quo warranto. If, on the 3d day of July, 1893, Conklin admitted in the quo warranto action that Cunningham was in possession of the sheriffalty of said county, and he instituted said quo warranto, "the legal and proper mode to try the title to said office," he is precluded from denying said possession on the 7th day of July, 1893, and endeavoring to determine said title in this proceeding by mandamus. Cunningham was the de facto sheriff of said county, in charge of the office, on the 3d day of July, 1893, according to the representation of Conklin in the proceeding to determine the title to the office, and he cannot be heard to contradict himself on the 7th day of July in a collateral pro-issue, not involving the title. The position of the respondent in the two actions is irreconcilable, and so repugnant is the one to the other-so inconsistent are these several defenses in the return with each other-that the said return could have with propriety been quashed for this reason alone, and the peremptory writ awarded.

Mandamus is a summary and specific remedy to enforce the performance of a duty incident to an existing right, in cases in which, without such appropriate redress, serious injustice would occur. It is a recognized process to maintain the prima facie title to an office, and it is not within its purview to determine the legality of such claim. It affords the proper remedy against an exofficial by a de facto officer having prima facie right to obtain possession of the books, papers, etc., the property of the office; and a pretended retention of the office by the late occupant will not justify him in withholding such property, with a view to compel resort to information in the nature of a quo warranto by a party possessing the prima facie title. Rex v. Clapham, 1 Wils. 305; People v. Kilduff, 15 Ill. 492; People v. Head, 25 Ill. 325; Crowell v. Lambert, 10 Minn. 369 (Gil. 295). It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of this writ; and it is not excluded by other legal remedies, which are not adequate to secure the specific relief needed, nor by the existence of a specific remedy in equity. Am. & Eng. Enc. Law, cl. 6, p. 102, and authorities recited in note 4. In Attorney General v. Boston, 123 Mass. 460, it is said that

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when the officers against whom the writ is sought have clearly manifested a determination to disregard their duty, by refusing to perform the acts in question, the court is not obliged to delay until the evil is done before granting the relief. See, also, Mayor, etc., of Brunswick v. Dure, 59 Ga. 803. As the legal title to the office is not involved in the action of mandamus, issues of law upon which the title to office depends cannot be adjudicated in such proceedings. The apparent right subsisting in the petitioner (determined by the court in the issuance of the alternative writ), the return of the respondent must be restricted to the denial of the statements of alleged facts contained in the alternative writ, and traverses in pleadings cannot legitimately create other issues than those of fact. A traverse of the law, being an exception to the sufficiency of the law, is vicious. Nor can conclusions of law resulting from statements of alleged facts in the alternative mandamus be denied or controverted by respondent in his answer. Facts, not inferences from facts, or arguments thereon, should be alleged in the return with distinctness and precision, and failure to meet this requirement so impeaches such pleading that it should be abated for insufficiency.

By section 2000 of the Compiled Laws of New Mexico, the pleadings in the proceedings by mandamus are limited to the writ (alternative) and answer, and they should be construed as pleadings in a civil action, and the issues thereby joined shall be tried and further proceedings had in the same manner as in a civil action. It is shown by the writ that the governor of the territory of New Mexico, on the 27th day of June, 1893, issued an order removing Charles M. Conklin from the office of sheriff of the county of Santa Fé, by virtue of authority vested in him by statute duly enacted by the legislature of the territory, for cause shown by proof satisfactory to him; that on the same day he appointed and commissioned William P. Cunningham to fill the vacancy occasioned by such removal; that on June 30, 1893, the said Cunningham executed a bond as sheriff of said county, which was approved by the district court of said county, and duly filed; that he then and there took the oath of office; and that the said oath was incorporated in the bond. It is alleged in said writ that Cunningham, by virtue of his appointment by the governor, became the sheriff of the county of Santa Fé, entitled to the office and the books and property pertaining to the same; that it was the duty of Charles M. Conklin to surrender and deliver to Cunningham, as his successor, the said property, of which he, the said Conklin, had possession, and which he had omitted and refused, and continued to omit and refuse, to surrender to the said Cunningham. Respondent does not deny that the orders of removal and appointment were

issued by the executive as alleged, but affirms, substantially, that the authority for such action did not exist, and that it was inoperative to create a vacancy, or to fill it; does not deny that Cunningham gave bond as stated, and took the oath of office subscribed thereon, but avers, in effect, that he did not acquire any title to the office, or any right to the possession of the property pertaining to the same; does not deny that Cunningham received from the governor a commission as sheriff of said county, but argues that it was not a legal muniment conferring any rights upon the said Cunningham. Respondent denies that it was ever shown by satisfactory proof to the governor that he had ever collected various sums of money belonging to the school fund, and failed to pay over the same within the time prescribed by the section of the statute under which his said pretended removal was attempted, and alleges that he has never at any time held or kept back any money belonging to the school fund beyond the time that the same was due and payable. Respondent alleges that no charge was made against him that he had so collected and failed to turn over any school fund; that no demand was made upon him for the office, and the books and property of the office, of sheriff of the county of Santa Fé, and that, for the reasons recited in his return, he declines to comply with the requirements of the alternative writ to deliver the said property to the said Cunningham.

The foregoing allegations of the respondent are, in effect, though not in terms, more affirmative than negative, in that they admit substantially the acts of the executive and petitioner alleged in the writ, and dispute their legal operation,-their effect by construction of law. They are argumentative, and consequently faulty. To affirm that the governor was without authority under the statute is to argue that the statute is not in esse now. To affirm that Cunningham is not prima facie entitled to the office of sheriff is to argue that his appointment by the governor was invalid. Admissions accompanied with suggestions that the petitioner derives no specific rights from such facts are arguments.

Whether the governor was empowered by section 27 of chapter 25 of the Acts of the legislative assembly, passed at the twentyninth session thereof, to remove the respondent, Conklin, from, and appoint the petitioner to, the office of sheriff of the county of Santa Fé, involves a construction of said section and, it may be, of other statutes. Whether the effect of the said executive orders was to create a vacancy, and substitute Cunningham for Conklin; whether Cunningham became the sheriff of said county upon giving his bond and taking the oath of office as such; whether it became the duty of Conklin to deliver the property of the sheriffalty of Santa Fe county to Cunningham; whether the said Cunningham was entitled to the

possession of the said books and other property; whether Conklin was entitled to notice of the alleged deficiency and the contemplated purpose of the governor to investigate his accounts; whether demand should have been made by Cunningham upon Conklin for the books and other property incident to the said sheriffalty; whether Cunningham possessed the qualifications for said sheriffalty,-are problems for judicial discussion, not issues of fact for the consideration of a jury; and, further, they involve the legal title, and are not germane, except in proceeding by quo warranto. And whether the said Conklin did in fact collect school funds, and fail to turn them over in accordance with the statutory provisions, is an issue, the adjudication of which would determine the title to the office in question, and must therefore be remanded for consideration to the proceedings in quo warranto, "the only legal method of disposing of contentions as to the de jure title to public offices."

Whether the right of trial by jury in proceedings by mandamus prevails in this territory has never been passed upon by this court, but it does not appear to have been the practice to call into requisition such a tribunal. No enactments determine the doubt, unless it shall be construed that section 2000 of the Compiled Laws, in directing that the issues joined by the alternative writ and the answer shall be tried in the same manner as in a civil action, solves it in favor of a jury. In Connecticut it is held that the constitutional provisions for jury trial have no application to proceedings in mandamus, and in Montana it has been declared that such proceedings are not ordinary actions at common law, and that the relator is not entitled, as a matter of right, to a trial by jury, and that it rests in the sound discretion of the court to award such trial. In Frey v. Michie, 68 Mich. 323, 36 N. W. 184, it is declared that trial by jury is an absolute right in a quo warranto case, and may be granted in mandamus proceedings, yet the trial, in many respects, is not like a common-law jury trial on an issue upon the information and regular pleadings.

That the executive acted within the limits of his authority is a conclusive presumption in this proceeding; that he was authorized by the statute to remove for causes specified in the section under which he acted, and to appoint to the vacancy, and issue his commission, are not less indisputable legal conclusions in this action; and that Conklin ceased to be sheriff by the one executive order, and Cunningham became, prima facie, such official, by the other, is the law's operation, so pronounced that it cannot be controverted, except in an action contesting the legal title to the office. The three departments of our government,-legislative, executive, and judicial, though co-ordinate, are distinct, and, within their respective lines, separate and independent, and, within their prescribed scope,