USA > New Mexico > History of New Mexico : its resources and people, Volume I > Part 46
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On the 21st of November, 1872, he was married at Silver City, to Jennette Amelia Bennett, the daughter of Judge and Mrs. Cornelius Ben- nett of that place. He took his bride back to La Mesilla and shortly thereafter he re-entercd the practice of law in partnership with the late Judge John D. Bail. This was continued until 1877, when he removed to Silver City and established himself in practice here, combining this until 1884 with newspaper work.
During this time he edited and published the Grant County Herald, the New Southwest and the Daily Southwest, the latter bearing the dis- tinction of being the only daily newspaper ever published in Grant county. In 1885 he was appointed by Governor Edmond G. Ross as district attor- ney for the third judicial district, at that time comprising the counties of Grant, Doña Ana and Lincoln, and including in its territory the entire southern part of New Mexico. He held this position for nearly four years.
In 1890 he removed with his family to Deming, where he at once established a lucrative practice and at which place he remained until 1895, when the went to Colorado Springs, Colorado. In 1898 he returned to Silver City and has remained here since. During the last fifteen years of
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his life he was engaged more or less extensively in mining, both in New Mexico and Colorado, and at the same time continued his law practice. He had for years been the local attorney of the Atchison, Topeka & Santa Fé Railway. He was survived by his wife and three daughters, namely: Mrs. W. B. Walton and Mrs. Percy Wilson, of Silver City; and Mrs. Corey C. Brayton, of Van Trent, California.
Mr. Ashenfelter lived in the Territory of New Mexico for more than thirty-five years. He held important positions in the public service and was entrusted with large private interests. He was at all times independ- ent and fearless in the discharge of his duty and zealous and energetic in protecting and conserving affairs committed to his care. He was a man of deep and broad scholarly attainments, and through his connection with the press of the Territory in large measure shaped public opinion. Mr. Ashenfelter had an extensive knowledge, much of it acquired in his own personal experience, of the historical events of early days in the Territory. Much of this has been recorded in more or less ephemeral newspaper articles, and one, among many others, of the reasons for gen- eral regret at his decease is the fact that the work of preserving all of this knowledge in written form, which he had contemplated and had been urged by friends to accomplish, must now remain undone; nevertheless, by his many contributions and acts of assistance in compiling this history, he has done much to keep alive the record of events in his Territory and merits no small praise for his historical zeal in this connection.
Thomas Douglas Leib, engaged in the general practice of law and also counsel for many corporations of Raton, was born in Iowa, November 3, 1864, a son of Christian and Lydia ( Hartman) Leib. His parents removed to Kansas in his boyhood days, and he completed his more specifically lit- erary education in Baker University, in the class of 1886, after which he entered upon preparation for the bar, and was graduated from the law department of the Kansas State University with the class of 1890. He was admitted to practice before the Supreme Court of Kansas in 1893 and the Supreme Court of New Mexico in 1899. He removed to Springer in 1894, because of ill-health, and for four years was engaged in teaching school there, after which he came to Raton in 1898 and entered upon the practice of law, forming a partnership with John Morrow, which connection has since been maintained. He has been very successful in his profession, and is now attorney for the Santa Fe Railroad at Raton, while the firm of Morrow & Lieb are also attorneys for the Raton & Eastern Railroad Com- pany, the Raton Fuel Company, the Raton Ice Company, and the Raton Waterworks Company.
A recognized leader in the ranks of the Democracy in his district, Mr. Lieb was elected to the legislature in the fall of 1898 and served for one term. He is a member of the Independent Order of Odd Fellows. Well equipped by thorough training and strong intellectual endowments for the arduous and difficult profession of the law, he has made a creditable place at the New Mexico bar.
Merrill Ashurst, who filled the office of attorney general of New Mexico from 1852 to 1854, and again from 1867 to 1869, was a native of Alabama. He came to Santa Fé in 1850 or 1851, opened an office for the practice of his profession, and at once took a prominent place at the bar. He was a man of unusual ability, a powerful advocate, a convincing
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orator and exceedingly adroit in the trial of causes before a jury. His success as a prosecutor was remarkable. Though his practice was large and remunerative, he was most extravagant and improvident, and at his death left nothing. He died in 1869 at the age of sixty-one years, while serving his second term as attorney general.
Theodore Wheaton succeeded Mr. Ashurst as attorney general in 1854 and performed the duties of the office four years. He was a native of Rhode Island. He joined the Doniplian expedition to New Mexico, and after his discharge engaged in practice here until his death in 1875. He served in the legislature and at one time was speaker of the house. From 1861 to 1866 he was United States attorney. Though one of the ablest and most successful lawyers of his day he failed to apply himself to his professional work during the last twelve or fifteen years of his life. It is said that his law library consisted of Chitty's Pleadings and the New Mexican statutes. He died at Ocate, New Mexico, in 1874 or 1875.
Charles P. Clever, attorney general of New Mexico from 1862 to 1866, was born in Cologne, Prussia, in 1827, and died in 1874. He came to the United States in 1848 and settled in Santa Fé in 1850, engaging in trade. From 1855 to 1862 he was a member of the mercantile firm of Seligman & Clever. In 1857 he was appointed United States marshal for New Mexico, and while in this office began the study of the law. He was admitted to the bar in 1861 and at once entered upon the practice of his profession in Santa Fe. In 1861 he was made adjutant general, and at the battle of Valverde was adjutant on the staff of General Canby. In 1867 he was the Democratic candidate for delegate to Congress and received the certificate of election over Colonel J. Francisco Chaves, but the latter contested the election and toward the close of the term was seated. In 1868 he was admitted to practice before the supreme court of the United States and shortly afterward was appointed one of the incorporators of the Centennial Exposition. In 1864 Governor Connelly made him one of the commissioners to revise and codify the laws. His last days were spent in professional work at Tome, Valencia county. Mr. Clever was more of a successful politician than a lawyer. He was a man of great strength of character, and had as many enemies as he had friends. Few men have been more active in politics in New Mexico, and few have found their way into such a variety of official positions.
Eugene Allen Fiske of Santa Fé, who served with credit as United States attorney for New Mexico from 1889 to 1893, is a native of New Hampshire and was educated in that state and Massachusetts. He served in the Union army in the Civil war and was mustered out as a lieutenant of the Eighth United States Veteran Volunteers. After the war he was graduated from the law department of the Columbian University of Wash- ington, D. C. President Grant appointed him chief of the division of private land claims in the general land office, and subsequently assistant secretary to the President to sign patents for lands. Resigning his office in Washington in 1876, he located in that year in Santa Fé, where he has since been successfully engaged in the practice of law, having been counsel in some of the most important litigation in the Territory. In 1886 he assisted in the organization of the New Mexico Bar Association, was its treasurer for the succeeding ten years and its president in 1901. He was one of the organizers of the Santa Fé Board of Trade, was attor-
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ney and vice-president of, and a director in, the Second National Bank of New Mexico, assisted in the foundation of the University of New Mexico at Santa Fé, and was the organizer of the first gas company in New Mexico at Santa Fé, and subsequently of the gas company at Las Vegas. In Masonry he has taken the Scottish Rite degrees, is a Knight Templar and is also a member of the military order of the Loyal Legion. In politics he is a Republican.
One of the lawyers longest in active practice in the Territory, he has been employed in some of the most important litigation before the local courts, and with the United States government as his client won more cases than all his predecessors combined since the organization of the Territory. His conduct as a citizen, like his professional career, has gained him the esteem that belongs to the honest and vigorous worker in the broad arena of professional and civic affairs.
Melvin Whitson Mills, an attorney practicing at Springer, in Colfax county, was born in Elgin county, Ontario, Canada, October 11, 1845. His parents, Daniel Wood and Hannah (Chase) Mills, were of the Quaker faith, and the former was born in Ohio, the latter in New York. In the common schools of Canada Melvin W. Mills began his education, and his professional training was received in the law department of the Michigan State University at Ann Arbor, from which he was graduated in the class of 1868. His father had gone to Colorado in 1858, and was a member of the Colorado Home Guards during the Civil war. Immediately following his graduation, Melvin W. Mills sought a home in the west, making his way to New Mexico. He first located at Elizabethtown, where he remained for two years, when the county seat was removed to Cimarron, and he, too, established his home there. In the meantime he was elected a member of the territorial legislature. He resided in Cimarron from 1871 until 1880, and during that time served by appointment of the county commissioners as county attorney. Coming to Springer in 1880, he was appointed district attorney, was reappointed by Governor Sheldon, and continued to hold the office under Governor Ross. Since his retirement from that position he has engaged in the private practice of law. While acting as district attorney he was also appointed to examine school teachers. In addition to his pro- fessional duties he is giving his time and attention to ranching interests. He has a ranch in the Canadian river canyon of six thousand acres, also five thousand acres in Aquaje ranch, twenty-two miles southwest of Springer, and was at one time the owner of the largest fruit orchard in the western portion of the Canadian river canyon, but in October, 1904, this was washed away in the terrific flood which swept through the valley. He had one hundred and fifty acres planted to peaches, prunes, plums, nec- tarines, grapes and almonds, and the flood caused a heavy loss. He has a horse and cattle ranch near the Canadian river ranch, and also twenty-five hundred acres of land just east of Springer.
Mr. Mills married Ella E. House, a native of Michigan, and they have reared two adopted children. Mr. Mills is a man of good business capacity and enterprise, capably controlling his varied interests as represented by his ranches and at the same time carefully conducting a large and growing law practice.
A proceeding of intense interest not only to the bench and bar of New Mexico, but to the Territory generally, owing to the high professional
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standing and prominence of at least one of the accused parties and the great importance of the proceeding in its results, arose out of a public criminal trial which occurred in Santa Fé county in the months of April and May, 1895. On May 29, 1892, Francisco Chavez, an ex-official and prominent citizen of Santa Fé county, was assassinated. His prominence and the cowardly character of his murder aroused intense public feeling and indignation. Investigation led to the arrest of Francisco Gonzales y Barrego, Antonio Gonzales y Barrego, Lauriano Alarid, Hipolito Vigil and Patricio Valencia, and their trial was begun before Judge H. B. Hamilton on April 23, following, Thomas B. Catron and Charles A. Spiess conduct- ing the trial for the defense.
Chavez, by reason of his personal presence, his goodness of heart and his kind and generous disposition, had attached many followers, regard- less of their political affiliation. At the time of his assassination, and for a number of years prior thereto, he was the acknowledged leader of his party. He was considered the strongest man politically in Santa Fé county, and it was generally conceded that he could procure the election or defeat of any candidate in local politics. The testimony given at the prelim- inary hearing and at the trial tended strongly to show that the primary motive for his assassination was political jealousy, a fear of his popu- larity and power and an inordinate desire to remove him from the road of political preferment.
At the session of the supreme court of New Mexico in August, 1895, Jacob H. Crist, district attorney for the first district, who conducted the prosecution in this trial, filed a number of affidavits charging Catron and Spiess with unprofessional conduct during the trial, accompanied by a petition calling the attention of the court to the same and asking that body to act in the matter. After an examination of the affidavits, which alleged that the accused men had been guilty of efforts to procure false affidavits from the witnesses in the murder trial and otherwise improperly affect the testimony, the court deemed the charges to be of sufficient grav- ity to call for a full investigation, and appointed John P. Victory, A. A. Jones, William B. Childers, S. B. Newcomb and Bernard S. Rodey, all prominent members of the bar, to prepare and file such charges as they might deem proper. Under this order the committee prepared and filed charges containing five separate and distinct specifications, charging five separate and distinct unprofessional acts.
In these disbarment proceedings testimony was offered which tended to the establishment of the charges, but the accused denied all of the material allegations set forth. The most serious specific charge against Catron was, in substance, that he procured an interview with one of the most important witnesses in the murder trial and endeavored to persuade him either to give entirely different testimony from that which he had already given, or to refuse to testify on the ground that he would incrim- inate himself. Another specification alleged that Catron, through an agent or agents, had intimidated another witness into offering testimony favor- able to his client, causing her to be retained in his private office during the night preceding the trial and taken direct from his office to the court house; and upon the conclusion of her examination had her taken directly back to his office and kept there until he was ready to send her home.
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Other charges were to the effect that Catron had attempted to bribe wit- nesses with offers of money.
The opinion concurred in by a majority of the court, in a paragraph referring to the witnesses whose testimony was used as a basis for the disbarment proceedings, stated as follows: "Prominent citizens of this community, officials in high standing, prominent members of the bar, reputable business men in large numbers, have come upon the stand and have testified, without qualifications, that they would not believe these wit- nesses under oath, in consequence of their character, their reputation and their standing in the community." Justice Laughlin, in a dissenting opin- ion of great length, said: "If I believed this statement from the evidence in this case, and if I had the power I would grant those four defendants a new trial, just as soon as I could sign my name to the order. I believe the law protects, with its mantle of mercy, alike, the rich and the poor, the high and the low; and those four men now awaiting in solemn solitude, under the pall of the death sentence pronounced by the same learned and honored judge who uttered the above strong and cutting sentences, are just as much entitled to their lives as the respondent is to practice law at this bar. If this testimony against them in that case was found sufficient, to the exclusion of all reasonable doubt, to convince a jury of twelve good and lawful citizens of the guilt of the accused, and the judge concurred in that view, why is it not sufficient to sustain these charges ? *
* The committee offered in open court to connect respondent (Catron) with the authorship of an article in a newspaper containing severe strictures on this court with regard to the conduct of this case; but respondent's counsel vehemently opposed its introduction, and the court ruled it out. * * I am irresistibly driven to the conclusion, however unpleasant it may be, that the legal evidence contained in the record sufficiently sustains the charge of unprofessional conduct on the part of the respondent during the progress of the trial of said Barrego case, and I so find."
The proceeding was finally dismissed, each of the justices filing a separate opinion. No other case of a similar nature arising in New Mexico ever attracted such widespread attention. Public feeling reached a high tension not only among the legal profession, but among all classes in the laity. As the outgrowth of this case there arose contempt proceedings involving two of the prominent newspaper men of the territory-Thomas Hughes and W. T. McCreight, proprietors of the Albuquerque Evening Citizen. After the committee appointed by the court had filed charges, and before they had been disposed of, there appeared in the Citizen an article nearly three columns in length, under the heading "Is It Honesty or Par- tisanship?" in which Chief Justice Smith was criticized in somewhat vio- lent language for having in the meantime spent a night at the residence of one of the members of the committee in Albuquerque, where, "contrary to all precedent, delicacy and the ethics pertaining to the judicial action, descended from the high position which he should have commanded, so as to appear in the partisan effort to ruin the character of an attorney whose only crime is that he was, at the last election, selected by a majority of about three thousand votes to represent New Mexico in congress." These words are quoted from the editorial article referred to. This article fur- ther charged that the chief justice and those he was alleged to have advised were determined to push the cause against Catron "for political and
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personal reasons; that Judge Smith would see that they were referred to a special committee of the bar, composed of a majority who would be hostile to Catron, either politically or personally, or both, but that it should be so done that it should be made to appear to the other members of the supreme court that it was intended to be non-partisan."
Continuing, the offensive publication says: "The other members of that court should see that the judicial ermine is not dragged in the mud of politics and of personal enmity, and should promptly check any parti- san zeal or political hostility which may be manifested in that cause if there be any display thereon." It asks, under certain contingencies, "to what low, contemptible, degraded and insignificant place can the judiciary descend."
The proceeding resulted in finding Hughes guilty of contempt and the. imposition of a sentence to imprisonment in the Bernalillo county jail. Two of the justices dissented from the punishment inflicted, in the separate opinions handed down, calling attention to the fact that Hughes had de- clared under oath that he was not the author of the offensive editorial and did not know who its author was, and that after its publication he had ascertained the falsity of the charges and published a full retraction of the same. So far as official recognition was concerned, these two actions ended one of the most sensational incidents in the history of the bench and bar of New Mexico.
June 23, 1809, Governor Otero issued to J. H. Vaughn a commission to the office of treasurer of New Mexico. Samuel Eldodt was then occu- pying the office. Eldodt refused to give up office on the ground that the governor had no power to remove him (see Wade-Ashenfelter case), and on July 6, 1899, Vaughn asked for and received an alternative writ requir- ing Eldodt to surrender to him all the insignia and paraphernalia of the office. Eldodt refused to relinquish office. July II, Eldodt filed answer to the writ, denying right of governor to appoint his successor upon the ground that he (Eldodt) had been duly created treasurer in March, 1897, upon nomination and appointment of the governor and with the advice and consent of the legislative council, to hold office for two years and until his successor should be appointed ; and being alive, and fully capable of filling the office, and never having resigned or been removed therefrom, and Vaughn never having been nominated to the council of the governor, the latter official was without power to confer the office upon another, as he had attempted to do. The case was first taken to the district court of Santa Fé county, which adjudged Vaughn to be "prima facie treasurer" of the Territory. July 14, 1899, in response to a peremptory writ, Eldodt relinquished everything appertaining to his office. The case was taken to the supreme court, which decided that "where one has received an appoint- ment 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 that such appointment wa's legal"- thus leaving the burden of proof to the contrary upon the aggrieved. In other words, though Eldodt had not been removed from office and was still alive and fulfilling the duties devolving upon him, the court held that the governor had the right to act as though he had either been removed or had died, notwithstanding the fact that Eldodt stood ready to prove that he had neither been removed from office nor had died.
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This case was the first one of the kind arising in New Mexico, and created widespread general interest.
In March, 1884, E. C. Wade of Las Cruces was appointed by the governor as district attorney, was afterward confirmed and the commis- sion given.
November 9, 1885, Governor E. G. Ross, of Silver City, appointed Singleton M. Ashenfelter to the office, but without confirmation by the council. Ashenfelter excluded Wade from office, and Wade brought action for usurping office. In the long legal fight that followed, the district court in Sierra county decided in favor of Wade, and Ashenfelter carried the case to the supreme court, which, in January, 1887, decided that no pre- tense was made that there was any effort to remove Wade, unless appoint- ment of Ashenfelter and his commission so operated; and it had not been contended that Wade's time had expired when Ashenfelter received the commission. The question resolved itself into consideration of power of the governor to remove an officer whose appointment came from the senate's approval, or the governor's nomination, when the officer holds a term fixed by law. The court interpreted the statutes to mean that when a vacancy occurs during recess of the legislature, the governor may appoint in the. interim but not fill an office already having an existing incumbent. If, under the law, the governor may dismiss the secretary "it cannot be seen," decided the supreme court, "why he may not dismiss every other one without regard to their manner of appointment or the tenure of office, and thus, by the construction of one clause, bring all the officers, and the opera- tion of all the laws of the state, under executive control. This would counteract the whole scope and design of the constitution." The finding of the court was in favor of Mr. Wade, charging no error against the finding of the district court.
Murray F. Tuley, who afterward occupied the bench in Chicago and became recognized as one of the ablest jurists in the United States, was probably the first American to engage in the practice of law in New Mexico. He was born in Louisville, Kentucky, settled in Chicago in 1843, attended a law school in Louisville in the winter of 1846-7, and in the spring of 1847 enlisted for service in the Mexican war, being assigned to the regi- ment commanded hy Colonel Newby, who soon afterward deserted his com- mand. He accompanied the Army of the West to Santa Fé, became a first lieutenant, and after the war, having been admitted to the bar in Illinois, opened an office in Santa Fé. He subsequently practiced for a short time in Albuquerque. He left New Mexico early in the '50s.
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