TORRES V. BOARD OF COUNTY COMM'RS, 1910-NMSC-065, 15 N.M. 703, 110 P. 851 (S. Ct. 1910)
MACARIO TORRES, Appellant,
vs.
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF
TORRANCE, NEW MEXICO, Appellees
No. 1213
SUPREME COURT OF NEW MEXICO
1910-NMSC-065, 15 N.M. 703, 110 P. 851
September 01, 1910
Appeal from the District Court for Torrance County before John R. McFie, Associate Justice.
SYLLABUS
SYLLABUS (BY THE COURT)
COUNSEL
A. B. Renehan for Appellant.
The functions of county government shall be exercised at the county seat. C. L. 1897, secs. 662, 749; Act of Congress, July 30, 1886, C. L. 1897, p. 45; Act of Congress, July 19, 1888, sec. 2; Laws 1903, ch. 70, sec. 3; Laws 1905, ch. 2; Territory v. Clark, 99 Pac. 698.
Injunction is the proper remedy to prevent the wrongful use or application of public funds and a taxpayer may bring the suit. Rice v. Smith, 9 Iowa 570; Marble v. McKinney, 60 Me. 333; Maloy v. Madget, 47 Ind. 241; Spencer v. School District, 15 Kans. 202; Nunda v. Crystal Lake, 79 Ill. 311; Burness v. Multnomah County, 60 Pac. 1005; Shepherd v. Easterling, 61 Neb. 882; Snyder v. Foster, 77 Iowa 638; Harney v. Railroad Co., 32 Ind. 244; Johnston v. County of Sacramento, 137 Cal. 204; Bradford v. County of San Francisco, 112 Cal. 537; Barry v. Goad, 89 Cal. 215; Winn v. Shaw, 87 Cal. 632; New London v. Brainard, 22 Conn. 552; 2 High on Injunctions, sec. 1298, n. 2; Mayor v. Gill, 31 Md. 371; City of Chicago v. Nichols, 177 Ill. 97; Frederick v. Douglas County, 96 Wis. 411; Muller v. Eau Claire County, 108 Wis. 304; Winston v. Railroad Co., 1 Baxter 60; Rothrock v. Carr, 55 Ind. 334; Brockman v. City of Creston, 79 Iowa 587; Tifft v. City of Buffalo, 65 Barb. 460; Watson v. Sutherland, 5 Wall. 78.
This is not a proceeding to fix the status of a county seat. Rice v. Smith, 9 Iowa 570; Ford v. Farmer, 9 Hum. 152; 29 Cyc. 1393, sec. 5. Estancia is not even a de facto county seat for such office or tenure cannot exist. Norton v. Shelby County, 118 U.S. 426; 29 Cyc. 1391, note 54.
E. C. Abbott, F. H. Ayers, C. R. Easley and Mann & Venable for Appellee.
The location of a county seat cannot be raised in a collateral proceeding by a private individual but can only be raised by the state in a direct proceeding for that purpose. Robinson v. Moore, 25 Ill. 118; In re Allison, 22 Pac. 820; In re Short, 27 Pac. 1005; Ashley v. Board of Supervisors, 60 Fed. 55; Presidio County v. State National Bank, 20 Texas Civ. App. 511, 44 Southwestern 1069; State v. Rich, 20 Mo. 393; Speck v. The State, 7 Baxt., Tenn., 46; State v. Judges, 43 La. An. 125; Watts v. State, 22 Texas App. 572; Territory v. Clark, 99 Pac. 697.
The question of whether or not Estancia is the county seat of Torrance County can only be raised by the Territory itself by an information in the nature of quo warranto. 11 Cyc. 368; 7 Am. & Eng. Enc., 2d ed., 1045; Robinson v. Moore, 25 Ill. 118; State v. Judges, 43 La. Ann. 125; Watts v. State, 22 Tex. App. 572.
The acts of the legislature of 1903 and 1905 should be construed together and, in effect, create a new county and locate the county seat thereof. Laws 1903, ch. 7; Laws 1905, ch. 2; Springer Act, 7 Fed. St. Ann. 264, and amendment 268; 1 Lewis Sutherland Stat. Con., sec. 237.
If the legislature however acts directly, in locating a county seat, no judicial question can be made as to the propriety or validity of its action, and if it acts through the medium of officers or agents, no judicial question can be made as to the propriety or validity of the acts of its officers or agents, unless the legislature makes special provisions therefor, but redress must be had through the legislature. 11 Cyc. 366; Smith v. Adams, 130 U.S. 167, 32 L. ed., 1895; Walker v. Tarrant Co., 20 Tex. 16; Henrick v. Rouse, 17 Ga. 56; McClelland v. Shelby Co., 32 Tex. 17; State v. Dorsey Co., 28 Ark. 378; Lusher v. Scites, 4 W. Va. 11.
JUDGES
Abbott, J.
OPINION
{*705} OPINION OF THE COURT.
{1} This is an action brought by appellant, a taxpayer of Torrance County, praying an injunction to restrain the Board of County Commissioners of Torrance County from "building, contracting for or in any manner authorizing, permitting or allowing the construction of a court house or other county buildings for said County of Torrance in or at the town of Estancia," for {*706} the reason that said town is not the lawful county seat of Torrance County. A temporary injunction was granted.
"But in this proceeding it is not attempted to show that the right which the petitioner seeks to secure is one which affects him in any way peculiar to himself, and from the nature of the controversy we must assume that it only affects him in the same manner as it affects all other taxpayers and citizens of the county, all of whom are interested in the location of the county seat. In such a case we think the matter should not be litigated in this manner. The public has a right to be heard; and, if we desire to determine the constitutionality of the statute in question, and on which the result may depend, we should have to pass upon the rights of the public at the instigation of a private citizen, in his personal capacity as a private suitor. In the meantime other proceedings by other private individuals, might be instituted, the rights of none of whom would be settled by the decision in this case. Each citizen of the county might see some additional reason why the law should be held constitutional or unconstitutional, and desire to present it to the court."