Downer v. Graham

• Decision Date: 10 September 1927
• Docket Number: No. 7558.,7558.
• Citation: 21 F.2d 732
• Parties: DOWNER v. GRAHAM, State Treasurer of New Mexico, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

21 F.2d 732 (1927)

DOWNER v. GRAHAM, State Treasurer of New Mexico, et al.

No. 7558.

Circuit Court of Appeals, Eighth Circuit.

September 10, 1927.

Downer & Keleher, of Albuquerque, N. M., for appellant.

Robert C. Dow, of Santa Fé, N. M., W. A. Gillenwater, of Clovis, N. M., and Summers Burkhart, of Albuquerque, N. M., for appellees.

Before STONE and VAN VALKENBURGH, Circuit Judges, and POLLOCK, District Judge.

POLLOCK, District Judge.

This is a suit brought by a citizen of New Mexico against defendants, the state treasurer of the state, the auditor of the state, and the commissioner of public lands of the state, to enjoin said officials from placing in income or fund accounts of that state moneys or funds arising as rentals from lands granted the state by the general government under the terms of the Enabling Act admitting New Mexico into the Union as a state, and from using such moneys or funds directly and presently for the purposes specified in the grant; it being the insistence of the complainant to the suit the lands were by the government granted to the state in trust, and that rentals by the state received from said lands are trust funds, which under the terms of the grant the state should and must invest and preserve for the use of the state, and not expend presently, as it is averred they are now doing, for the purposes contemplated by the act and the uses of the state.

Defendants appeared to and answered the bill of complaint, and by the answer admitted all the material facts well pleaded in the bill. The case coming on for hearing on the bill and answer, a decree was entered, finding the issues in favor of defendants and dismissing the bill for want of equity. From this decision complainant below prosecutes this appeal. For convenience, the parties will be referred to as they stood on the record below.

A consideration of the record discloses there are many reasons why the decree below is right and must be affirmed:

(1) Complainant, as a private citizen of the state of New Mexico, and taxpayer, has no capacity to bring or maintain this suit to regulate and control the acts of defendants as public officials of the state in dealing with the public lands of the state passing to the state under the grant in question.

(2) Because the lands are not taken and held by the state in trust under the grant made to the state by the general government, and the funds arising from the rentals of such lands are not trust funds, and the manner of the disposition of such funds by defendants rests with the good faith of the state.

(3) If the conduct of the state in its dealings with the lands in question through its public officials is to be challenged at all, it must be done at the suit of the Attorney General of the United States, as provided in the act, and not at the suit of a private citizen and taxpayer of the state, no more affected by the actions challenged than any other citizen and taxpayer of the state.

All the above propositions, we take it, are abundantly supported by authority controlling here and by the provisions of the act. Section 10 of the Enabling Act, among other things, provides as follows:

"It shall be the duty of the Attorney General of the United States to prosecute in the name of...