15 N.M. 742 | N.M. | 1910
Lead Opinion
OPINION OP THE COURT.
This is an. equitable action brought by plaintiffs as tax payers of the County of Lincoln* to restrain and enjoin the erection of a court house and jail at Carrizozo in said county, and to enjoin the paying out and expenditure of $28,000 of money in the treasury of the county, proceeds of bonds issued and sold by the board of county commissioners for the purpose of erecting a court house and jail at Carrizozo in said county. The action of the board of said county was based upon Chapter 80 of the Laws of 1909, which was initiated in the legislature of 1909 by Council Bill No. 86. Trial was had in the court below which resulted in a denial of the injunction and dismissal of the bill. Appellants make various complaints of the action of the court below.
, 1. Counsel for appellants argues against the validity of the act because it fails to bear the signatures of the presiding officers of the legislative council and house as required by the respective rules of each house, and cites Field v. Clark, 143, U. S. 671. In that case the specific question presented was whether the journals of the two houses of congress, which contradicted the terms of the act by showing that a certain section of the act, not appearing in the act had in fact been passed by both houses, would control the terms of the act, or Avhether the engrossed bill, signed by the presiding officers of each house and the president, found in the archives of the office of the secretary of state, would control the recitals of the journal. The court held the latter would control. It held that the journals could not contradict the act but did not hold that they might not be read in aid of the act. Counsel also cites Harwood v. Wentworth, 162 U. S. 557, in which case the holding was the same.
Objection to the validity of the act is made on account of the absence of the signature of the governor and certificate by him qf the date when he received the same. The statutory requirements in this regard is found in Sec. 1842, U. S. B. S., which provides:
“That ‘every bill which has passed the legislative assembly of any territory shall, before it becomes a law, be presented to the governor; if he approve he shall sign it; but if not, he shall return it, with his objections, * * * If any bill is not returned by the governor within three days, Sundays excluded, after it had been presented to him, the same shall be a law in like manner as if he had signed it, unless the legislative assembly by adjournment sine die prevent its return, in which case it shall not be a law/ ”
2. The contention is made that the petition for the election was not in accordance with the act and that, consequently, the county commissioners had no power to call the election.
The act provides:
“Sec. 2.' That Sec. 630 of the Compiled Laws of the Territory of New Mexico, of 1897, be, and the same is, hereby amended so as to read as follows:
“Sec. 630. Whenever the citizens of any county in this Territory shall present a petition to the Board of Comity Commissioners signed by qualified electors of said county, equal in number to at least one-half the legal votes cast at the last preceding general election in said county, asking for the removal of the county seat of said county, to some other designated place, which petition shall be duly recorded in the records of said county, and said board shall make an order directing that the proposition to remove the counter seat to the place named in the petition, be submitted to a vote of the qualified electors of said county at the next general election, if the same is to occur’ within one year of the time of presenting said petition, otherwise at a special election to be called for that purpose at any time within two months from the date of presenting said petition: Provided, That whenever it is proposed to remove a county seat of any county which has public buildings consisting of a court house and jail, the original construction of which cost said county more than the sum of thirty thousand ($30,000) dollars, such cost to be ascertained from the records of the Board of County Commissioners of said county, then before said board of commissioners shall make such order so submitting such proposition to remove the county seat, to the qualified voters of said county, shall require from the petitioners or the persons interested in the removal of said county seat a deposit of forty thousand dollars ($40,000) in money, which said deposit shall be placed in the treasury of said county, which said sum of money when so placed in said treasury shall be used in the construction of a court house and jail in the event that the proposition for the removal shall receive a majority of the votes cast at such election, but such deposit shall not be required as a condition precedent to submitting such proposition for the removal in counties which have no court house and jails, the cost to the county of which, as ascertained from the records of said countv commissioners is less than said sum of thirty thousand dollars ($30,000) as aforesaid; but the same shall be required in all cases when it is proposed to remove a county seat from a point situated on a railroad to another point also so situated. Provided, further, That the city, town, village or place named in the petition to which it is proposed to remove said county seat shall be at least twenty miles distant from the then county seat of said county and said petitioners or persons interested in the removal of said county seat shall cause to be conveyed to said county by a good and perfect title, in the event of the proposition for the removal shall receive a majority of the votes cast at such election, sufficient suitable land tp be accepted, if containing as' much as three-fourths of. an acre for court house, jail and other buildings for such county, the deed for which shall be filed with and accepted by the Board of County Commissioners before calling said election which deed to be re-delivered to the grantor therein named in case said proposition to remove said county seat fails to receive a majority of the votes cast at such election, and that no proposition to remove a county seat from a city, town, village or place, situated on a railroad, to one not so situated, shall be entertained or voted upon, and that no vote shall be ordered on substantially the same proposition more than once in ten years.”
The petition presented to the Board of County Commissioners in this case was as follows:
“County Seat Petition.”
“To the Honorable Board of County Commissioners, of Lincoln County, Territory of New Mexico:
We, the undersigned, qualified electors of the County ■ of Lincoln, in the Territory of New Mexico, respectfully petition you to call an election and submit to a vote of the qualified electors of said Lincoln County, the proposition to remove the county seat of said Lincoln County to Carrizozo, a town situated on the El Paso and Southwestern railroad.”
We therefore hold that the petition was sufficient.
Concurrence Opinion
[Concurring specially.] While agreeing with most of the opinion, I do not concur in the conclusion announced in the second paragraph. I am of opinion that the form of the petition for the election did not comply with the terms of the statute. The latter clearly requires that the petitioners must ask for the removal of the county seat to some other designated place. The petition to my mind asks simply for a vote on the proposition to change. A person opposing Carrizozo but desiring an election simply to settle the question between Carrizozo and Lincoln once for all, might with perfect consistency have signed the petition. Such a petition does not comply with the law and is not a valid initiation of the proceedings for an election. I concur, however, in the result upon the ground that the case is within the holding of the court this day announced in Torres v. Board of County Commissioners, that where the proceeding is practically an attempt to settle a county seat controversy the exclusive method is quo warranio. I am authorized to say that Mr. Justice Wright concurs in these views.
See Opinion rendered on rehearing, Gray et al v. Taylor et al, 16 N. M. Rep., and 118 Pac. 591.