Codlin v. Kohlhousen

• Decision Date: 28 August 1899
• Citation: 58 P. 499,9 N.M. 565
• Parties: CODLIN et al.v.KOHLHOUSEN et al.
• Court: New Mexico Supreme Court

9 N.M. 565

58 P. 499

CODLIN et al.

v.KOHLHOUSEN et al.

Supreme Court of the Territory of New Mexico.

Aug. 28, 1899.

Syllabus by the Court.

1. Whenever an act of the legislature can be so construed and applied as to avoid a conflict with the laws of congress and give it the force of law, such construction should be adopted by the court.

2. It is not necessary that the law should operate upon all counties and cities of the territory to be constitutional. If the law is general and uniform throughout the territory, operating upon all of a certain necessary or reasonable class, or upon all who are brought within the relations and circumstances provided in the act, and such law has provision for future as well as present operation, it is not obnoxious to the limitations against special and local legislation of the act of congress known as the “Springer Act.”

3. Chapters 6, 33, Sess. Laws 1897, are not local or special legislation, within the meaning of Act Cong. July 30, 1886, c. 818 (24 Stat. 170), and mandamus lies to compel a board of county commissioners to perform a duty required by chapters 6 and 33.

Error to district court, Colfax county; before Justice Thomas Smith.

Mandamus on the petition of Charles B. Kohlhousen and others against John E. Codlin and others. From an order granting the petition, defendants bring error. Affirmed.

Chapters 6 and 33, Sess.Laws of 1897, are not local or special legislation within the meaning of the act of congress approved July 30, 1886, chapter 818, 24 statute 170, and mandamus lies to compel a board of county commissioners to perform a duty required by chapters 6 and 33.

R. E. Twitchell and W. C. Reid, for plaintiffs in error.

A. A. Jones and Frank Springer, for defendants in error.

McFIE, J.

After hearing upon an order to show cause, a peremptory writ of mandamus was issued, and obeyed by the plaintiffs in error, and the cause is in this court upon a writ of error.

The plaintiffs in error rely for reversal upon the sole ground that both chapters 6 and 33 of the Laws of 1897, under and by virtue of which the county seat of Colfax county was removed from the town of Springer to the town of Raton, and bonds were issued for the erection of a court house and jail, are invalid and void, in that they are local and special laws, and therefore in conflict with Act Cong. July 30, 1886, c. 818 (24 Stat. 170), which is, so far as applicable to this case, as follows: “Be it enacted,” etc., “that the legislatures of the territories of the United States now or hereafter to be organized shall not pass local or special laws in any of the following enumerated cases, that is to say: Locating or changing county seats. Regulating county and township affairs. *** In all other cases where a general law can be made applicable, no special law shall be enacted in any of the territories of the United States by the territorial legislatures thereof.”

There is no question of pleading of practice involved in the case as presented by counsel in their briefs, and this court decides the case upon the one question argued in the briefs, that chapters 6 and 33, Laws 1897, are local and special laws, and void because in conflict with the act of congress above referred to. The legislative assembly of New Mexico has power to enact laws upon all rightful subjects of legislation, provided such laws are not in conflict with the constitution or laws of the United States. Congress has the power to modify or nullify laws enacted by the legislative assembly of a territory, but, if congress fails or refuses to act, such laws remain in force so far as congressional action is concerned. There was no action by congress as to these laws. The location or removal of county seats, the regulation of county affairs, and the classification of counties are undoubtedly rightful subjects of legislation, and territorial legislatures have power to enact laws upon such subjects. There is, indeed, a presumption in favor of legislative action, which is fully pointed out by the supreme court of Pennsylvania in the case of Lloyd v. Smith, 35 Atl. 200: “The presumption is always in favor of the legislative command, and it must prevail, unless clearly transgressing the constitutional prohibition.” The laws which the plaintiffs in error seek to have this court declare void are entitled to this favorable presumption, and should stand unless it is overcome.

An examination of the laws in question also shows that upon their face they are general laws. Section 1, c. 6, begins as follows: “Whenever the citizens of any county in this territory shall present a petition to the board of county commissioners,” etc.; and section 1, c. 33, begins as follows: “Hereafter, when the county seat of any county in this territory shall be established at any incorporated city,” etc. So that these laws do not appear to be subject to the attack made upon them either in their titles or in the body of the acts; but counsel for plaintiffs in error in his brief says: “It is true that the statute in question does not specifically name the county of Colfax, but the conditions and provisions in section 1 thereof are of that peculiar kind that they exclude every other county in the territory from taking advantage of the provisions of the statute otherwise, and, as a matter of fact, prevent the removal of any county seat in the entire territory except that of the county of Colfax. *** It applies, and can only be made to apply, to the county of Colfax.”

It is clear that section 1, c. 6, and the first proviso thereto, is not subject to the above criticism; but the oral argument developed the fact that the conditions which counsel complained of were contained in the last proviso to section 1, as follows: “That the city, town or village named in the petition shall be at least twenty miles distant from, and of a population larger than the then county seat of said county; and that no proposition to remove a county seat from a city, town or village situated on a railroad to one not so situated shall be entertained or voted upon.”

Before considering the terms of this proviso, it is well to observe that section 1, together with its provisos, and in fact the entire chapter 6, is free from the vice which has caused the courts of the United States, and many of the states, and territories, to overthrow legislation as local and special. Counsel for plaintiffs in error has cited many of the cases wherein legislative enactments have been declared unconstitutional and void because they were held to be special or local laws, but an examination of those cases will disclose a marked distinction between the laws thus involved and held to be special and those involved in this case.

In State v. Mitchell, 31 Ohio St. 592, the statute held to be unconstitutional provided that it should be applicable to “cities of the second class, having a population of over thirty-one thousand at the last federal census.” The court, in declaring that statute special legislation, says: “Columbus is the only city in the state having the population named at the last federal census, and the act, therefore, applies alone to that city, and never can apply to any other.” This act, as will be seen, related only to the conditions existing at the last federal census, and had no future operation, and it is clear, from the language of the court, that the fact that the law had no future operation was the reason for its overthrow. The intent to legislate for the single city of Columbus was established beyond question, in the failure of the law to provide for its future operation upon cities which might thereafter have a population of 31,000.

That the court did not declare the law unconstitutional on the ground that it operated upon but one city, but because of the law had no provisions for future application to cities similarly situated, is made clear by the case of Fellows v. Walker, 39 Fed. 651. The circuit court for the Northern district of Ohio says: “The constitutionality of the act is denied, because it is said to be a special act conferring corporate powers; that it is special because the city of Toledo is the only city of the third grade of the first class in the state of Ohio, and the only city to which this act is or can be applicable. But this objection cannot be sustained. It is well settled by authority in Ohio that the classification of municipal corporations is valid, and the legislation which is applicable to a class is general, although there may be at that time but one city in that class.”

In State v. Herrmann, 75 Mo. 340, the act under consideration applied only to cities “having a population of one hundred thousand or more.” The court expressly refered to the fact that the act was limited to then existing conditions, and held the act to be special legislation, because it did not permit other cities, which might thereafter have a population of 100,000, to have the benefit of its provisions.

The statute of Illinois declared special legislation by the supreme court of Illinois in the case of Devine v. Board, 84, Ill. 591, was limited to cities of more than 100,000 population, being applicable only to the city of Chicago. It was also limited in duration to six years. It provided for issuing bonds for the erecting of a court house on the site heretofore used, and one of the conditions for taking advantage of the act was “recent destruction by fire of public buildings.” The court in that case found that the legislation was limited in several ways to the single city of Chicago and county of Cook. No other city or county in the state had the requisite population, and the six-year limit fixed made it unreasonable to believe that any other city would obtain the necessary population within the six years, so as to secure the benefits of the act; and when the act further required the court house to be erected on the site heretofore used, for the reason that the building had recently been...