249 P. 1074 (N.M. 1926), 3101, Asplund v. Hannett

Docket Nº:3101.
Citation:249 P. 1074, 31 N.M. 641, 1926 -NMSC- 040
Opinion Judge:WATSON, J.
Party Name:ASPLUND v. HANNETT et al.
Attorney:George W. Prichard and Charles B. Barker, both of Santa F
Judge Panel:PARKER, C.J., and BICKLEY, J., concur.
Case Date:August 16, 1926
Court:Supreme Court of New Mexico

Page 1074

249 P. 1074 (N.M. 1926)

31 N.M. 641, 1926 -NMSC- 040



HANNETT et al.

No. 3101.

Supreme Court of New Mexico

August 16, 1926

Syllabus by the Court.

Neither the Enabling Act, § 10, nor the Constitution, article 21, § 9, gives citizen right to sue to enjoin misapplication of proceeds of land grants.

Code 1915, § 4079, does not authorize causes of action or enlarge jurisdiction.

Unconstitutionality of a statute is not in itself a cause of action nor a head of equity jurisdiction.

A taxpayer's interest is not sufficient to invoke the aid of equity to enjoin state officers from making illegal expenditure of state funds.

A citizen and taxpayer has no standing to enjoin the Governor and other state officers from making expenditures from the "permanent reservoirs for irrigating purposes, income fund," on the ground that the statute authorizing such expenditures is violative of the trust conditions under which the state holds the fund, and hence violative of the constitutional provision accepting the conditions of the trust.

The failure of the complaint to show any interest in the plaintiff entitling him to relief is a failure to state facts sufficient to constitute a cause of action, a jurisdictional question which may be raised at any time.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Suit by Rupert F. Asplund, a citizen and resident taxpayer, on behalf of himself and all other citizens and resident taxpayers, against A. T. Hannett and others, state officers, for an injunction. From a judgment dismissing the complaint, plaintiff appeals. After an order of reversal and pending a rehearing, the Attorney General, on behalf of the State, moved to dismiss the appeal. Motion sustained, and former opinion withdrawn.

George W. Prichard and Charles B. Barker, both of Santa Fé, and George S. Downer, of Albuquerque, for appellant.

Fred E. Wilson, Atty. Gen., James N. Bujac, Asst. Atty. Gen., and J. O. Seth and Sam G. Bratton, both of Santa Fé, for appellees.


By the Act of June 21, 1898, known as the Ferguson Act [30 Stat. 484], Congress made numerous grants of land for various purposes to the territory of New Mexico. Some of these were of specific lands, and others were of lands to be selected. Among these grants was one of 500,000 acres to be selected "for the establishment of permanent water reservoirs for irrigating purposes." As to the lands in question, it was provided that the same might be selected and sold under certain named restrictions, and that:

"All money received on account of such sales, after deducting the actual expenses necessarily incurred in connection with the execution thereof, shall be placed to the credit of separate funds created for the respective purposes named in this act, and shall be used only as the legislative assembly of said territory may direct, and only for the use of the institutions or purposes for which the respective grants of land are made." Section 10.

By the Enabling Act (Act of June 20, 1910 [36 Stat. 557]), certain new and supplemental grants were made to the state for named purposes, and the previous grants to the territory were confirmed and expressly transferred to the state. It was therein provided that all of such lands, including previous grants, "shall be by the said state held in trust, to be disposed of in whole or in part only in manner as herein provided and for the several objects specified in the respective granting and confirmatory provisions, and that the natural products and money proceeds of any of said lands shall be subject to the same trusts as the lands producing the same." Section 28. It was further provided that the disposition of any of said lands, or of any money or thing of value directly or indirectly derived therefrom, for any other or different purpose than that specified, should be deemed a breach of trust; that separate funds should be established for the several objects of the grants; and that moneys in any manner derived from any of the lands should be deposited in the fund corresponding to the grant; that no moneys should be taken from one fund for deposit in any other, or for any object other than that for which the land producing it was granted; that all such moneys should be safely invested; that the Attorney General should institute necessary or appropriate proceedings to enforce the provisions of the trust, but not to the exclusion of the power of the state, or of any citizen thereof, to enforce the same; that the state and its

Page 1075

people should consent to all of said provisions by ordinance made, by proper reference, a part of the Constitution and by its terms positively precluding the making, by constitutional amendment, of any change in or abrogation of such ordinance without the consent of Congress.

The Constitution of this state expressly consents to all of the foregoing provisions of the Enabling Act and accepts the several trusts therein created. By subsequent legislation, funds have been established, known as "permanent reservoirs for irrigating purposes, permanent fund," and "permanent reservoirs for irrigating purposes, income fund."

By chapter 112, Laws of 1923, authority was given for the appointment of a commissioner to negotiate, on the part of New Mexico, with a commissioner to be appointed by the state of Colorado, a compact determining the rights of the two states "to the use, control and disposition of the waters of the Rio Grande river, and of the streams tributary thereto" (section 1), and providing for the payment of the expense of such negotiations out of the water reservoir for irrigating purposes, income fund.

By chapter 66, Laws of 1925, it was provided that if an agreement could not be reached with Colorado under chapter 112, Laws of 1923, "the Governor of New Mexico is hereby authorized to take such steps, make such investigations and institute or cause to be instituted in the name of the state such legal proceedings as in his judgment may be necessary for the protection of rights to the waters of the Rio Grande within this state." The Governor was authorized to engage the necessary engineers, employees, and attorneys, and to fix their compensation; for which purpose there was appropriated $25,000 from the water reservoirs for irrigation purposes, income fund.

Appellant (plaintiff below), a citizen and resident taxpayer of the state, complaining on behalf of himself and all other citizens and resident taxpayers of the state who might come in and seek the relief prayed for, sued for an injunction to prevent the Governor, the state auditor, and the state treasurer from expending the permanent water reservoirs for irrigating purposes, income fund, in the manner provided in chapter 66, Laws of 1925, claiming that such expenditure would constitute a breach of the trust imposed upon the fund by Congress and accepted by the people of this state by their Constitution. A temporary injunction was issued, but, upon the sustaining of the demurrer of appellees (defendants below), the same was dissolved. Appellant declining to amend his complaint, judgment was entered dismissing it.

On December 21, 1925, we handed down an opinion sustaining appellant's contention that chapter 66, Laws of 1925, and the execution thereof, constituted and would constitute a breach of said trust, and reversed the judgment. On account of the great public importance of the case, however, we granted a rehearing. Pending the rehearing, the Attorney General filed for the state a motion to dismiss the appeal, which motion was argued and submitted in connection with the rehearing granted, and will now be considered. One ground of the motion to dismiss is thus stated:

"Because the complainant in the court below, appellant here, Rupert F. Asplund, assumes to institute and maintain this action as a citizen, and there is no authority in the laws of the United States or the state of New Mexico by which said Rupert F. Asplund, or any other citizen, may institute or maintain an action of this character."

It does not appear from the complaint that appellant will be affected by the acts sought to be enjoined in any other manner than any other taxpayer of the state. Nor does it appear what effect, if any, the proposed action will have, either to increase or decrease the taxes of the appellant, or of any taxpayer of the state; nor that any personal, property, or civil right of any individual is threatened with injury by the proposed acts, unless it can be said to be an individual right to prevent the violation of the Constitution, and particularly a breach of the public trust arising out of the Ferguson Act, the Enabling Act, and the Constitution, as above set forth. Does this situation call for or warrant the interference of a court of equity at the behest of a citizen taxpayer?

To enforce the provisions of the act relative to the application and disposition of the lands and the proceeds thereof and the funds derived therefrom, it is made the duty of the Attorney General of the United States to prosecute, in the name of the United States and (in) its courts such proceedings at law or in equity as may from time to time be necessary and appropriate. Enabling Act, § 10. But in the same section it is provided that nothing therein shall be taken as a limitation of the power of the state, or of any citizen thereof, to enforce the provisions of the act. Some question is raised as to the meaning of these provisions, but we think it plain. So far as it established any power, or imposed any duty to enforce the provisions of the act, such power and duty were conferred and imposed upon the Attorney General of the United States. Congress conferred no power, and imposed no duty upon the...

To continue reading