Dickinson v. Bd. of Com'rs of De Baca County.

• Decision Date: 24 September 1929
• Docket Number: No. 3439.,3439.
• Citation: 34 N.M. 337,281 P. 33
• Parties: DICKINSONv.BOARD OF COM'RS OF DE BACA COUNTY.
• Court: New Mexico Supreme Court

34 N.M. 337

281 P. 33

DICKINSON

v.BOARD OF COM'RS OF DE BACA COUNTY.

No. 3439.

Supreme Court of New Mexico.

Sept. 24, 1929.

Syllabus by the Court.

A petition filed under Code 1915, § 1159, asking that a vote be taken upon two bond issues therein designated as separate propositions, does not authorize the submission thereof by ballot as a joint proposition, and an election at which the ballot submitted the single proposition, for or against “court house and jail bonds,” is null and void.

Appeal from District Court, De Baca County; Hatch, Judge.

Suit by E. Orton Dickinson against the Board of Commissioners of De Baca County. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with direction.

A petition filed under Code 1915, § 1159, asking that a vote be taken upon two bond issues therein designated as separate propositions, does not authorize the submission thereof by ballot as a joint proposition, and an election at which the ballot submitted the single proposition, for or against “court house and jail bonds,” is null and void.

W. R. McGill, of La Lande, for appellant.

K. W. Edwards, of Ft. Sumner, and J. C. Compton, of Portales, for appellee.

CATRON, J.

This is an action to enjoin the board of county commissioners of De Baca county, N. M., from issuing or selling courthouse and jail bonds of said county in the sum of $37,500 and to have the election held upon said bond issue declared null and void. From a judgment for the defendant, plaintiff has appealed.

The facts material to a determination of this case are: On the 10th day of January, 1929, a petition was presented to, and filed with, the board of county commissioners of De Baca county as follows:

“Petition.

To the Board of County Commissioners of De Baca County:

The undersigned qualified electors of De Baca County, New Mexico, who paid a property tax therein during the preceding year do hereby ask that a vote be taken on the proposition of building a court house and jail at the County seat of said County by means of an issue of the bonds of the County of De Baca in such denominations, rate of interest, maturity and place of payment as shall be in accordance with Sections 1156 to 1171 of the New Mexico Code for 1915, to the amount of Thirty Thousand dollars for court house purposes and to the amount of Seven Thousand Five Hundred dollars for jail purposes.

We further petition your Honorable Body to acquire title to Block 34, of the Depot Addition to Sunnyside, now Fort Sumner, and to designate said block or a sufficient amount thereof as the site for said Court House.

Wherefore, We respectively (respectfully) pray that an election be called by your Honorable Body as by the States (Statutes) and Constitution made and provided.”

On the same date said board of county commissioners took action upon said petition, and resolved that an election be called as asked in said petition. The material portions of said proceedings are:

“A petition was presented by J. P. McRee and two hundred twenty-seven (227) others, all qualified voters, all qualified voters of De Baca County, and being property tax payers herein, asking this Board to call a Special Bond Election in De Baca County, New Mexico, for the purpose of voting on the following question:

Shall De Baca County, New Mexico, vote its bonds in the total sum of $30,000.00 for the purpose of building a court house, and shall vote its bonds in the total sum of $7,500.00 for the purpose of building a jail in and for said county? Said bonds to be issued for the purpose only of building a court house and jail in and for said county.”

“Whereas, Petition for the calling of an election to vote on the issuance of bonds for court house and jail purposes in the County of De Baca, New Mexico, has been presented and found to be in accordance with law.

Now, therefore, It is Resolved that an election for said purposes shall be held in De Baca County, New Mexico, on the 5th day of February, 1929.”

“It was further ordered by the Board of County Commissioners that a special election be called, to be held within thirty days from this date in such County of De Baca, New Mexico, and that notice of such election be given by publication for at least three consecutive weeks in a legal newspaper published in De Baca County, New Mexico, and that said notice should set forth the time and place of holding such election, and that said notice should state that the bonds proposed to be voted should be used for the purpose of building a court house in the amount of $30,000.00 and the building of a jail in the amount of $7,500.00.

Election Proclamation.

Notice is hereby given that on the 5th day of February, 1929, there will be held in De Baca County, New Mexico, an election for the purpose of determining whether said De Baca County, New Mexico, shall become indebted in the total sum of Thirty Thousand ($30,000.00) Dollars for a court house, and become indebted in the total sum of Seven Thousand Five Hundred ($7,500.00) Dollars for a jail; said court house and jail to be erected on Block thirty-four (34), Depot Addition to Sunnyside, in the town of Fort Sumner, De Baca County, New Mexico.

Notice is further given that the ballots used in said election will be substantially in the following form:

For Court House and Jail Bonds ........ ?

Against Court House and Jail Bonds .... ?”

That the election upon said bond issue was held on the 5th day of February, 1929, and upon the 9th day of the same month proceedings were had by the board of county commissioners of said county, the material portion of which is:

“Be it remembered, That the Board of County Commissioners of the County of De Baca, State of New Mexico, convened in Special Session, at the office of the County Clerk of said county, at Fort Sumner, New Mexico, on this 9th day of February, 1929, as a Board of Canvassers, to canvass the returns of the election held within the said county on the 5th day of February, 1929, for the purpose of submitting to the qualified electors of said county who paid a property tax therein during the preceding year, the question of whether the county should become indebted in the sum of Thirty-seven Thousand Five Hundred Dollars, for the purpose of building a court house and jail and issue its bonds in said amount, which said election was held on the 5th day of February, 1929, within said county and state, and within six days prior to this 9th day of February, 1929.”

Upon completion of the canvass, the board found and certified that 459 ballots had been cast for courthouse and jail bonds and 119 against courthouse and jail bonds.

By the pleadings it is admitted that the defendant will issue and sell courthouse and jail bonds in the sum of $37,500, unless enjoined and restrained by the court.

During the trial considerable evidence was offered by defendant and admitted over the objection of plaintiff to the effect that it was the intent of the persons who signed the petition and of the board of county commissioners that the courthouse and jail were to be housed in one building, and that the bond issues of $30,000 for courthouse and $7,500 for jail were to be submitted to the electors as one question and not as separate propositions. Also that it was generally understood in the county of De Baca prior to and at the time of the election that but one building was to be built in which to house both the courthouse and the jail.

Appellant here presents three points for our consideration. It is, however, only necessary for us to consider one of the points in deciding and disposing of this appeal; that...