Community Ditches or Acequias of Tularosa Townsite v. Tularosa Community Ditch, 16 N.M. 750

Community Ditches or Acequias of Tularosa Townsite v. Tularosa Community Ditch

16 N.M. 750 | N.M. | 1911

OPINION OF THE COURT.

ABBOTT, J.

1 The plaintiff has, we think, mistaken its remedy in this matter. It alleges the usurpation of corporate authority by the defendant, The Tularosa Community Ditch, that it'has no right to act in a corporate capacitjq and, in effect, that even if-it had any right to act as a corporation, it liad committed acts against the plaintiff which were ultra vires, and constituted an abuse and misuse of its power. If these allegations are true, the exclusive remedy is by quo warranto. If the defendant, The Tularosa Community Ditch, is assuming to be a corporation, when, in fact, it is not one, or, if being one, it has usurped authority beyond its corporate powers, it is a matter of public concern and should be dealt with, not by a suit in equity, in which a decision would. necessarily be limited to the cause itself, but in proceedings in the nature of quo warranto, which would determine the status of the defendant, once and for all. In Spelling’s Extraordinary Belief, it is said (Section 1804) : “Quo warranto has, from its remotest history as a remedy, been deemed and employed as the exclusive proceeding by which the sovereign inquires into the right to exercise and enjoy, as well as the method of employing franchises, which, not being of common right, are considered as particles or attributes of sovereignty. It is the appropriate remedy against a corporation for abuse of power, misuse of privilege, malfeasance, or nonfeasance.” Citing Com. v. Union Ins. Co., 5 Mass. 230; Com. v. Fowler, 10 Mass. 290. See, also, Section 21, and note cited.' Even more explicit is the statement in Cye.,, vol. 32, p. 1415: “In the absence of statutory provision to the contrary, quo warranto proceedings are held to be the only proper remedy in cases in which they are available. Thus they are held to be the exclusive method of questioning the legality of lire organization or a change in the territory of a quasi-public corporation, such as a school district, or a-drainage district, * * * * * or to attack the validity of the organization of a corporation * * * * and when the remedy by quo warranto is available, it is held that there is no concurrent remedy in equity unless by virtue of statutory provision.” Chapter NY of High’s Extraordinary Eemedies, 3 ed., deals exhaustively with the subject and to the same effect. This court has again and again decided the remedy by quo warranto to be the appropriate and exclusive one where the alleged unlawful possession and use of the powers of a public office or franchise is complained of. Territory v. Ashenfelter, 4 N. M. 134; Conklin v. Cunningham, 7 N. M. 445; Hubbell v. Armijo, 13 N. M. 482; Territory v. Armijo, 14 N. M. 205. The plaintiff cites Armijo v. Baca, 3 N. M. 391, as an instance where equitable relief was offered; hut the plaintiff, Armijo, was in possession of the office there in question, and the defendant was enjoined from interfering with him. The defendant should himself have proceeded by quo warranto.

In this case it appears that the defendants, unlawfnlty, as the plaintiff claims, are in control of the Tularosa river and the acequias in question,, and have been so for a long time, with the exception of a short period when an order of court, afterwards revoked, deprived thomt of control. The judgment of the district court is affirmed.

Clarence J. Roberts, J., Frank W. Parker, J., concur in the result. W. H. Pope, C. J., not having heard the argument took no part in the decision.