Fabro v. Town of Gallup
| Decision Date | 01 July 1909 |
| Citation | 103 P. 271,15 N.M. 108,1909 -NMSC- 015 |
| Parties | FABRO v. TOWN OF GALLUP. |
| Court | New Mexico Supreme Court |
Appeal from District Court, McKinley County; before Justice Ira A Abbott.
Action by T. A. Fabro against the Town of Gallup. Judgment overruling a demurrer to the complaint, and defendant appeals. Reversed and remanded, with directions to sustain the demurrer.
F. W Clancy, for appellant.
B. F Adams, for appellee.
McFIE J. (after stating the facts as above).
The act of Congress (Act March 4, 1898, c. 35, 30 Stat. 252) authorizes the issuance of such bonds, notwithstanding the limitations of Act July 30, 1886, c. 818, 24 Stat. 170, with the following proviso: The act of the Legislative Assembly of New Mexico (Laws 1907, p. 38, c. 35), so far as it is brought in question in this case, is as follows It is obvious that, if the requirements of the above act of Congress and of the Legislative Assembly are met in the election held to authorize the issuance of bonds, the same may be legally issued, notwithstanding the limitations of the act of Congress of July 30, 1886. The regularity of the election is not questioned; the only point raised being that the following requirements of the act of Congress was not complied with, namely: "Two-thirds of the qualified voters, as above described, shall vote affirmatively for the issuance of said bonds."
The complaint alleging that, at the time the election was held, there were 200 qualified voters in the town of Gallup, and that only 41 voters had actually voted affirmatively for the issuance of the bonds, and 11 voted against the bond issue, the appellee contends that the bonds were unauthorized, inasmuch as the act of Congress, in its proviso, and also the statute of the territory, require that two-thirds of all the qualified voters of the town of Gallup shall actually vote in favor of issuing the bonds, regardless of whether the election returns show that they participated in the election or not, while, on the other hand, the appellant insists that two-thirds of the voters as shown by the returns is all the law requires to authorize the issuance of the bonds, and, as the returns show that two-thirds of those voting voted in favor of issuing the bonds, the issuance was authorized, and the injunction should not have been granted. In this jurisdiction the law as declared by the Supreme Court of the United States is the highest authority, and especially true in this case, where an act of Congress is involved. There is, evidently, but one question to be determined by this court, and that is whether or not the provision of the act of Congress above referred to, requiring that "two-thirds of the qualified voters, as above described, shall vote affirmatively for the issuance of said bonds," to authorize the issuance of bonds involved, is complied with, and must be determined, by the returns of an election held for that purpose, showing that two-thirds of the qualified voters voting at that election voted in favor of issuing the bonds.
As the record does not show that registration of voters was either required or had for the election, or that any other method by which the total number of qualified voters of the town of Gallup should be ascertained, it would seem to follow that, if the returns of the election are not to be accepted to establish the number of qualified voters, oral proof must be resorted to to ascertain the number of such voters. That resort should be held to oral evidence to establish such fact seems, at once, repugnant to several well-settled principles of law, and would certainly tend to impair the value of public negotiable securities, concerning which the law is well settled. The Supreme Court of the United States has had this question under consideration, and on several occasions, in deciding cases in which this question was raised, under statutes practically identical, pointed out the necessity of adhering to the result of the election, as shown by the returns, as the only safe and reliable way of determining the number of qualified voters, notwithstanding the fact that in many cases the returns did not show "that a majority" or "two-thirds of the qualified voters" did not participate in the election, according to the claims of those relying upon that fact as a defense against the bonds. St. Joseph Township v. Rogers, 16 Wall. 646, 21 L.Ed. 328; County of Cass v. Johnston, 95 U.S. 368, 24 L.Ed. 416; Carroll County v. Smith, 111 U.S. 563, 4 S.Ct. 539, 28 L.Ed. 517; Pacific Imp. Co. v. City of Clarksdale, 74 F. 528, 20 C.C.A. 635; Madison Co. v. Priestly (C. C.) 42 F. 818; Lamb v. Cain, 129 Ind. 516, 29 N.E. 13, 14 L.R.A. 518; South Bend v. Lewis, 138 Ind. 516, 37 N.E. 986; Taylor v. McFadden, 84 Iowa 270, 50 N.W. 1070; Montgomery County, etc., v. Trimble, 104 Ky. 638, 47 S.W. 773, 42 L.R.A. 738; Shearer v. Bay County Supervisors, 128 Mich. 556, 87 N.W. 789; Tinkel v. Griffin, 26 Mont. 432, 68 P. 859; Davis v. Brown, 46 W.Va. 719, 34 S.E. 839.
In the case of St. Joseph Township v. Rogers, supra, the act of February 28, 1867, of the Illinois Legislature , provided that bonds were authorized to be issued "when it shall appear that a majority of all voters of such township voting at such election" have voted therefor, etc. It appears that an election had been held for the issuing of bonds prior to the enactment of this statute, and in a proviso to section 13 it was provided, substantially, that where an election had already been held, "and a majority of the legal voters of any township were in favor of a subscription," no other election should be held, etc. The question therefore arose as to how this majority of legal voters should be ascertained, as counsel for the plaintiff in error contended: "A statute which authorizes township officers to issue bonds only when an election 'may have already been held, and a majority of the legal voters of the township were in favor' thereof, does not authorize the issue of bonds when less than a 'majority of the legal voters' were in favor thereof, although there were 'a majority of all the legal voters voting at such election.'" The facts proven were that there were 300 legal voters in St. Joseph township at the time of the election, of whom only 75 voted; but a majority of the 75 voted in favor of issuing the bonds. In deciding the case the court said: St. Joseph v. Rogers, 16 Wall. 646, 649, 664, 21 L.Ed. 328.
In the case of Harshman v. Bates County, 92 U.S. 569, 23 L.Ed. 747, the court construed a clause in the Missouri Constitution, which prohibited the Legislature of that state from enacting legislation authorizing counties, cities, or towns from becoming stockholders or loaning their credit to corporations "unless two-thirds of the qualified voters of such county, city or town, at a regular or special election to be held therein, shall assent thereto." This language seems to be practically identical with that used in the act of Congress in the case at bar. The words "assent thereto" would seem to mean the same thing as "affirmatively vote for," as both would be established by voting in favor of the issuance of the bonds; but the real question lies back of that proposition, namely, that the only way of determining who are qualified to vote...
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