Baca v. Perez
| Decision Date | 19 October 1895 |
| Parties | BACA v. PEREZ, Auditor, et al. (LABADIE, Intervener. No. 604). |
| Court | New Mexico Supreme Court |
Appeal from district court, Santa Fé county; before Justice N. B Laughlin.
Bill by Celso Baca against Demetrio Perez, as auditor of public accounts for the territory, and Rufus J. Palen, as territorial treasurer, for an injunction to restrain defendants from expending, under a certain resolution of the territorial legislature, the funds of the territory, in which proceeding Tranquilino Labadie was given permission to intervene. From an order granting the injunction, defendants appeal. Reversed.
The regular session of the 31st legislative assembly of the territory of New Mexico passed joint resolution No. 5, and the same was duly approved by the governor on the 24th day of January, 1895. This joint resolution provided for the employment, and pay out of the territorial treasury, of subordinate officers and employés in and about the legislature, in addition to those provided for and paid under and by act of congress approved June 19, 1878. On January 25 1895, the complainant, Celso Baca, filed his bill of complaint with the clerk of the district court of the First judicial district, at Santa Fé; and alleged that he was the owner of taxable property, and was a taxpayer resident, in the county of Guadalupe, in said territory of New Mexico, and that he brought this suit for himself and in behalf of all other taxpayers of the territory; and prayed for an order restraining and enjoining the said defendant Demetrio Perez as territorial auditor of public accounts, from auditing and issuing his warrants to any of said subordinate officers and employés provided for in joint resolution No. 5, and to restrain and enjoin Rufus J. Palen, as territorial treasurer from paying, out of any funds in his hands as such treasurer, any warrants so issued in payment of services performed by the subordinates, officers, and employés, as provided for in said joint resolution No. 5; and further alleged that the legislative assembly had no power or authority to pass said joint resolution, for the reason that the same is in contravention of the constitution and laws of the United States. The court thereupon made a rule upon the defendants to show cause, if any they had, why an injunction should not issue as prayed for. In response to the rule, the defendants, by their legal adviser, the solicitor general of the territory, filed their answer, admitting the truth of the material allegations in the bill for the complainant, and the cause was submitted on bill and answer. On January 29, 1895, the court granted an order for an injunction restraining and enjoining the defendants, the auditor of public accounts and the territorial treasurer, as prayed for in the bill of complaint. Thereupon Tranquilino Labadie, as translator and one of the subordinate officers provided for in said joint resolution, appeared, and asked leave to file an intervening petition, to be made a party defendant in the suit, which leave was granted. Said Labadie thereupon filed a demurrer to the bill, and a motion to dissolve the injunction. The demurrer sets out that said complainant has not legal capacity to institute and sustain said suit; that the bill of complaint does not contain or set forth any matter of equity sufficient to authorize the injunction therein prayed for; that the court had not jurisdiction to grant or issue said writ of injunction upon the matter alleged in said bill; that the said court had not jurisdiction to grant or issue the said injunction against the said defendants, the said auditor and treasurer, without this defendant, and other persons directly and materially interested in the object of said suit, being parties thereto; and that the said bill of complaint is insufficient in law to authorize or maintain the said writ of injunction.
John R. McFie and E. L. Barlett, for appellants.
H. L. Warren, A. B. Fall, and W. B. Childers, for appellee.
SMITH C.J. (after stating the facts).
We will proceed directly to determine whether the legislature, in the exercise of its legal power, was authorized to supplement the officers provided for it by congress with employé of their own creation, and to pay them for their services out of the territorial treasury. A recital of the legislation establishing New Mexico, and of certain provisions of congress common to all the territories, is essential to an intelligent comprehension of the controversy. Section 7 of the organic act, approved September 9, 1850, enacts that "the legislative power of the territory shall extend to all rightful subjects of legislation consistent with the constitution of the United States, and the provisions of this act." Section 1851 (approved September 9, 1850) of the Revised Statutes of the United States, applicable to all the territories, declares that "the legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States." By an act approved January 23, 1873, entitled "An act regulating the compensation of the members and officers of the legislative assemblies of the several territories of the United States" (section 1855 of the Revised Statutes), it was declared that "no law of any territorial legislature shall be made or enforced by which the governor or secretary of a territory or the officers or members of any territorial legislature shall be paid any compensation other than that provided by the laws of the United States." By the same act the subordinate officers of each branch of territorial legislatures are specified, and their compensation fixed. This provision (section 1861, Rev. St. U. S.) is as follows: "The subordinate officers of every branch of the legislative assemblies shall consist of one chief clerk; who shall receive a compensation of $8.00 per day; and of one assistant clerk; one enrolling clerk; one engrossing clerk; one sergeant-at-arms; one door keeper; one messenger and watchman, who shall receive a compensation of $5.00 per day during the sessions, and no charge for a greater number of officers and attendants, or any larger per diem shall be allowed or paid by the United States to any territory." An act approved June 19, 1878, entitled "An act making appropriations for legislative, executive and judicial expenses of the government for the fiscal year ending June 30th, 1879, and for other purposes," repealed section 1861, differently entitling some of the subordinate officers, and reducing the compensation of some; but the restriction of said section 1861, to wit, "that no charge for a greater number of officers or attendants, or any larger per diem shall be allowed or paid by the United States to any territory," was reenacted in the words, "and no greater number of officers or charge per diem shall be paid or allowed by the United States to any territory."
It will be observed that the organic act did not specify the officers of the legislature, or their compensation. It did not inhibit payment, in addition to that allowed by the United States either to the governor, secretary, members of the legislature, or its officers. Nor did any act of congress special to New Mexico, or common to all the territories, until January 23, 1873, forbid such appropriation of the territorial funds, or enumerate the officers allowed and to be paid by the United States. It is logical to conclude --as remedies are not provided, except to cure evils--that the legislators, in the exercise of their power, had regarded payment to themselves and their officers, and the officers of the other branches of the government, out of the territorial treasury, as rightful legislation, and that congress, though recognizing the power as existing, did not regard it legitimate for trustees of public funds to apply them to their own advantage, and imposed the restriction to prevent the continuance of such abuse; but it does not appear that further restraints as to the disposition of the territorial funds were deemed either essential or legitimate. Congress by the act of January 23, 1873, constrained due regard by public servants of their obligations by the prevention of the application of the funds in their custody to their own benefit, and notified the legislators that it would furnish certain officers, at certain compensation, and that no greater number, or greater charge per diem, would be paid or allowed by the United States. Neither the number nor the pay of the officers having been before specified, congress was bound by the acts of its authorized agents in their organization and operation; and it became imperative, consequently, to limit the liability of the United States for the expenses of these bodies. No limitations, however, upon the legislatures, were expressed either in the act of 1873 or that of 1878; and it is difficult, if not rationally impossible, to infer that, in exempting the United States treasury, congress simultaneously contemplated a protectorate over the fiscs of the territories. No legislation of this nature exists, and it cannot be created by judicial implication. If a casus omissus, the deficit cannot be supplied by the courts. An intention, if, in the opinion of the court, entertained and not expressed by the legislature, is quod voluit non dixit, and cannot be enforced. Courts cannot assume the functions of legislatures. But, no matter what the status, congress, advising the territorial legislatures that only those officers authorized by it would be paid by the United States, warned them that, if other persons were employed or appointed, they would not be recognized as claimants against the United States treasury, and no provision would be...
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