CRUMPACKER, J.
Ptappomt°ment presumption froHnS there"
Prightto posses- and other prop-Sus.: mailda' Where one has received an appointment to a public office, from the authority invested with power to make such an appointment, and ■ has duly qualified in accordance with statutory requirements, the law will presume, in the first instance, that the appointment was legal, and that the appointee is the rightful incumbent of the office designated in the appointment; and it will, upon his application, assist him to possession of the insignia, paraphernalia, an<i everything appertaining to the office. The functions of the writ in such cases are narrow, but they are of vast importance in the orderly administration of government; and it is in this very narrowness' that the peculiar power and efficacy of the remedy are founded. There must be some means afforded by the law whereby officials, legally created and qualified, may be enabled to enter, without delay upon the performance of the duties which the law requires, and the welfare of society demands that they fulfill; otherwise, the course of public admin-istraticm must be constantly obstructed, and its regularity and usefulness greatly impaired. It is, .therefore, the established rule, in this jurisdiction,'that mandamus lies to assist to the possession of the insignia, and appurtenances of an office one who shows a clear, prima facie right to it, and that the only question proper to be raised in the proceeding is the question whether a sufficient showing of a prima facie right has or has not been made. The question of the actual, or ultimate, title is not an issue in the case, and no rival claimant may be permitted to delay the relief sought by raising that issue. Conklin v. Cunningham, 7 N. M. 445. If it be argued that this rule, whicn forbids a full consideration of the legal rights of the respective parties, and refuses to go behind the prima facie showing adduced by the relator, may sometimes work injustice, by ejecting from office one who is actually and lawfully in possession of it, and inducting into his place another whose title thereto is defective and illusory, the answer is plain; the object of the rule is, solely, to secure the systematic and orderly administration of government, and not to adjust disputes of individuals. In the great majority of cases, it is actually true that he who exhibits the prima facie right has also the legal title to the office, and that his opponent is an usurper. In some cases, this is not true; and yet, even here, the general rule must be adhered to, though it work temporary individual hardship; for, were it to be departed from in one case, it must be ignored in all; the special value of the proceeding by mandamus — its rapidity — would be lost; the relief by mandamus and quo warranto would become, in all practical aspects the same; and there would be no agency known to the law whereby in a grave and critical emergency, the implements, paraphernalia and property of a public office could be speedily delivered over to the lawful Incumbent. Such being the principles applicable to the case at bar, the question first presented to this court for determination is, were the facts, as alleged in the alternative writ and as found by the court below, sufficient to establish in the relator a prima facie right to the insignia and appurtenances of the office of Territorial treasurer ? The court below found, as a matter of fact, “that the said relator, J. H. Vaughn, was commissioned by the Governor of the Territory of New Mexico, as treasurer of the Territory of New Mexico, on the 23d day of June, 1899, and that said Vaughn as such treasurer took the oath of office prescribed by law therefor, and filed the same in the- office of the secretary of the Territory as required by law; that the said Vaughn also made and executed his bond to the Territory of New Mexico in the sum of four hundred thousand dollars, as required by law, which bond, with the sureties thereon, was approved by the Governor of the Territory of New Mexico, and also filed in the office of the secretary of said territory as required by law.” Such being the facts, it is clear that the relator was prima facie treasurer of New Mexico, if the governor was invested with legal power to make him such. Conklin v. Cunningham, supra.
Tt is earnestly and ably contended by counsel for the plaintiff in error, that, the office involved in this controversy being a territorial office, the power of the Governor to fill it by appointment without the advice and consent of the Territorial council and during a recess of the council, is, by section 8 of the Organic Act of 1850, and section 1858 of the Revised Statutes of the United States, limited to cases of death or resignation, and that under no circumstances has the Governor power to remove the treasurer and to appoint his successor. Several decisions of this court, besides numerous other authorities, are cited in support of this contention. The question thus raised is one, however, which we do not feel called upon to decide in the case at bar. Section 1858, R. S. U. S., is as follows:
“In any of the territories, whenever a vacancy happens from resignation, or death, during the recess of the legislative council, in any office which by the organic act of any territory, is to be filled by appointment of the governor, by and with the advice and consent of the council, the governor shall fill such vacancy by granting a commission which shall expire at the end of the next session of the legislative council.”
Public officer: appointment by governor: appointees prima iacie title and right of possession of belongings in office: mandamus. There are, then, at least two contingencies, the happening of either of which empowers the Governor to fill the offices of treasurer during a recess of the council; one of the death of the incumbent, the other is his resignation. Admitting, arguments gratia> the force of the suggestion-that the respondent could not be presumed to be dead in this case, it does not follow that, for the purposes of this proceeding, he could not be presumed to have resigned.. The facts that he had refused to vacate the office upon the demand of the relator, and that he thereafter persisted in such refusal, do not exclude the possibility that his resignation had been tendered to and accepted by the Governor before the new appointment was made. It mus't be borne in mind that we have to deal with a strict and technical rule established for the public protection — a ríale that is general and not to be disregarded to suit particular instances. The presumption in favor of the legality and regularity of the acts of the Executive is among the strongest known to the law. Conklin vs. Cunningham, supra. It appearing that the Governor had undertaken to appoint to the office, and there being one possible contingency (we do not say that there were not more) in which he might lawfully make the appointment, the court must presume, prima facie, that that contingency existed when the appointment was made; and to permit the introduction of one word of testimony to rebut this presumption would be to open the door to the whole question of title and abolish the rule which we have above attempted to elucidate. When the allegations of the alternative writ are sufficient to show a prima facie right to the office in the relator, there is no recourse for the respondent but to traverse and contradict them. Conklin v. Cunningham, supra.
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CRUMPACKER, J.
Ptappomt°ment presumption froHnS there"
Prightto posses- and other prop-Sus.: mailda' Where one has received an appointment to a public office, from the authority invested with power to make such an appointment, and ■ has duly qualified in accordance with statutory requirements, the law will presume, in the first instance, that the appointment was legal, and that the appointee is the rightful incumbent of the office designated in the appointment; and it will, upon his application, assist him to possession of the insignia, paraphernalia, an<i everything appertaining to the office. The functions of the writ in such cases are narrow, but they are of vast importance in the orderly administration of government; and it is in this very narrowness' that the peculiar power and efficacy of the remedy are founded. There must be some means afforded by the law whereby officials, legally created and qualified, may be enabled to enter, without delay upon the performance of the duties which the law requires, and the welfare of society demands that they fulfill; otherwise, the course of public admin-istraticm must be constantly obstructed, and its regularity and usefulness greatly impaired. It is, .therefore, the established rule, in this jurisdiction,'that mandamus lies to assist to the possession of the insignia, and appurtenances of an office one who shows a clear, prima facie right to it, and that the only question proper to be raised in the proceeding is the question whether a sufficient showing of a prima facie right has or has not been made. The question of the actual, or ultimate, title is not an issue in the case, and no rival claimant may be permitted to delay the relief sought by raising that issue. Conklin v. Cunningham, 7 N. M. 445. If it be argued that this rule, whicn forbids a full consideration of the legal rights of the respective parties, and refuses to go behind the prima facie showing adduced by the relator, may sometimes work injustice, by ejecting from office one who is actually and lawfully in possession of it, and inducting into his place another whose title thereto is defective and illusory, the answer is plain; the object of the rule is, solely, to secure the systematic and orderly administration of government, and not to adjust disputes of individuals. In the great majority of cases, it is actually true that he who exhibits the prima facie right has also the legal title to the office, and that his opponent is an usurper. In some cases, this is not true; and yet, even here, the general rule must be adhered to, though it work temporary individual hardship; for, were it to be departed from in one case, it must be ignored in all; the special value of the proceeding by mandamus — its rapidity — would be lost; the relief by mandamus and quo warranto would become, in all practical aspects the same; and there would be no agency known to the law whereby in a grave and critical emergency, the implements, paraphernalia and property of a public office could be speedily delivered over to the lawful Incumbent. Such being the principles applicable to the case at bar, the question first presented to this court for determination is, were the facts, as alleged in the alternative writ and as found by the court below, sufficient to establish in the relator a prima facie right to the insignia and appurtenances of the office of Territorial treasurer ? The court below found, as a matter of fact, “that the said relator, J. H. Vaughn, was commissioned by the Governor of the Territory of New Mexico, as treasurer of the Territory of New Mexico, on the 23d day of June, 1899, and that said Vaughn as such treasurer took the oath of office prescribed by law therefor, and filed the same in the- office of the secretary of the Territory as required by law; that the said Vaughn also made and executed his bond to the Territory of New Mexico in the sum of four hundred thousand dollars, as required by law, which bond, with the sureties thereon, was approved by the Governor of the Territory of New Mexico, and also filed in the office of the secretary of said territory as required by law.” Such being the facts, it is clear that the relator was prima facie treasurer of New Mexico, if the governor was invested with legal power to make him such. Conklin v. Cunningham, supra.
Tt is earnestly and ably contended by counsel for the plaintiff in error, that, the office involved in this controversy being a territorial office, the power of the Governor to fill it by appointment without the advice and consent of the Territorial council and during a recess of the council, is, by section 8 of the Organic Act of 1850, and section 1858 of the Revised Statutes of the United States, limited to cases of death or resignation, and that under no circumstances has the Governor power to remove the treasurer and to appoint his successor. Several decisions of this court, besides numerous other authorities, are cited in support of this contention. The question thus raised is one, however, which we do not feel called upon to decide in the case at bar. Section 1858, R. S. U. S., is as follows:
“In any of the territories, whenever a vacancy happens from resignation, or death, during the recess of the legislative council, in any office which by the organic act of any territory, is to be filled by appointment of the governor, by and with the advice and consent of the council, the governor shall fill such vacancy by granting a commission which shall expire at the end of the next session of the legislative council.”
Public officer: appointment by governor: appointees prima iacie title and right of possession of belongings in office: mandamus. There are, then, at least two contingencies, the happening of either of which empowers the Governor to fill the offices of treasurer during a recess of the council; one of the death of the incumbent, the other is his resignation. Admitting, arguments gratia> the force of the suggestion-that the respondent could not be presumed to be dead in this case, it does not follow that, for the purposes of this proceeding, he could not be presumed to have resigned.. The facts that he had refused to vacate the office upon the demand of the relator, and that he thereafter persisted in such refusal, do not exclude the possibility that his resignation had been tendered to and accepted by the Governor before the new appointment was made. It mus't be borne in mind that we have to deal with a strict and technical rule established for the public protection — a ríale that is general and not to be disregarded to suit particular instances. The presumption in favor of the legality and regularity of the acts of the Executive is among the strongest known to the law. Conklin vs. Cunningham, supra. It appearing that the Governor had undertaken to appoint to the office, and there being one possible contingency (we do not say that there were not more) in which he might lawfully make the appointment, the court must presume, prima facie, that that contingency existed when the appointment was made; and to permit the introduction of one word of testimony to rebut this presumption would be to open the door to the whole question of title and abolish the rule which we have above attempted to elucidate. When the allegations of the alternative writ are sufficient to show a prima facie right to the office in the relator, there is no recourse for the respondent but to traverse and contradict them. Conklin v. Cunningham, supra. Were this a proceeding in the nature of a quo warranto, we should be governed by quite different principles; for that proceeding, (as remarked by Bronson, J., in People v. Vail, 2 Wend. 12), “reaches beyond those evidences of title which are conclusive for every other purpose, and inquires into and ascertains the abstract question of right.” But the evidence of title referred to, of which a commission in proper form, issued by a competent appointing power, is one, are conclusive for every purpose, except when directly assailed in the special mode provided by law. Such a commission may not be attacked collaterally in a proceeding like the present, the prime and only object of which is to deliver the insignia and belongings of an office to the person prima facie entitled. The act of the Governor in appointing to office, like the act of a canvassing board in issuing a certificate of election, is judicial, 01 quasi judicial in character, and where the appointment is within the scope of the gubernatorial power, may be reviewed only in some appropriate proceeding brought for the purpose. Wood v. Peake, 8 Johns, 69; Wildy v. Washburn, 16 id. 49; The People ex rel v. Seaman, 5 Denio, 109. Wood v. Peake, supra, was an action of trespass, brought against Wood, for the seizure of horses belonging to the plaintiff. The defendant justified the seizure under an execution and an appointment of himself to be one of the constables of the county by three justices of the peace, who had acted under a statute conferring upon them the power to make such an appointment in case any constable elected by the town should refuse to serve, and his successor should not be chosen at a special town meeting within fifteen days after such refusal. Defendants warrant of appointment stated, as the ground of its issuance, that one Laurence, one of the constables of the county, had for more than fifteen days refused to serve in his office, and that the town had not filled the vacancy. The plaintiff proved that the said Laurence had not refused to serve as constable, as recited by the justices, and obtained a judgment in the court below. The Supreme Court, upon appeal, held that the admission of this evidence of 'the plaintiff was error, and in reversing the judgment said, (p. 71) :
“This appointment is a judicial act, for the justices must first determine and adjudge that there is a vacancy in the office, and that the town has neglected to fill it. It is not traversable in such a collateral action. The appointment remains valid until it is set aside or quashed in the regular course upon certiorari. If two justices should appoint him (the constable) it would be a case in which no jurisdiction existed, and the appointment would be null and void. The distinction in the books is between the cases where the authority (of the constable) proceeds from • a source having jurisdiction over the subject matter, and from one that does not; the ministerial officer can justify in the one case and not in the other.”
In People v. Seaman, supra,, which was a quo war-ranto proceeding to determine election to office, the same court remarked (p. 112) : “It was held in Wood v. Peake (8 John. Rep. 69) sanctioned by Wildy v. Washburn (16 id., 49) that such appointments by justices were judicial acts, which were not to be questioned in any collateral proceeding between -individuals. This is sound doctrine and is equally applicable to the decision of a board of canvassers declaring the results of an election to office.” In fact, we incline to the opinion that an appointment may often involve much more of the judicial element than does the act of adding up election returns, which is “a mere mechanical, or rather, mathematical, duty,” as observed by the court in People v. Head, 25 Ill. 290, or, “a simple matter of arithmetic,” as remarked in Morgan v. Quackenbach, 22 Barb. 79. See generally: High on Ex. Legal Remedies, sections 73-75; Corwell v. Lambert, 10 Minn. 369; Comm. v. Athern, 3 Mass. 286; Re Strong petitioner, 20 Pick. 495; Ewing v. Turner, 35 Pac. Rep. 951; State ex rel. v. Churchill, 15 Minn. 455; State ex rel. v. Sherwood, 15 Minn. 221; People v. Head, 25 Ill. 287.
It follows that the action of the court below in quashing those portions of the respondent’s return which alleged the possession and title of the office to be in him and denied the power of the Governor to make the appointment of the relator, and in excluding the evidence offered by the respondent in support of those allegations was proper.
As to the assignment of error based upon the overruling of the respondent’s motion for a trial by jury, we are constrained to the conclusion that the action of the court below must be sustained. The same point was made without avail before this court, under circumstances almost identical in this respect with those of the case at bar. Conklin v. Cunningham, supra. “The determination of the facts by a jury in a mandamus case is not necessarily preliminary to a valid judgment.” In re Delgado, 140 U. S. 586, 588.
There being no error in the record, the judgment of the court below is affirmed.
Mills, 'C. J., and Parker, J., concur.