Page v. Town of Gallup

• Decision Date: 15 June 1920
• Docket Number: No. 2327.,2327.
• Citation: 191 P. 460,26 N.M. 239
• Court: New Mexico Supreme Court
• Parties: PAGEv.TOWN OF GALLUP ET AL.

26 N.M. 239

191 P. 460

PAGE

v.TOWN OF GALLUP ET AL.

No. 2327.

Supreme Court of New Mexico.

June 15, 1920.

Syllabus by the Court.

Where a material issue is tendered by the pleadings, judgment on the pleadings is improper.

Where power to do an act is conferred upon a municipality in general terms without describing the mode of exercising it, the trustees have the discretion as to the manner in which the power shall be employed, and the courts will not interfere with this discretion This rule prevails, of course, only where there is no fraud or collusion on the part of the officers charged with the performance of the duty.

A municipality in its discretion may authorize its property to be used incidentally for a purpose other than that for which it is primarily purchased or constructed, if the use for incidental purposes does not interfere with the use for the primary purpose.

In a suit to set aside and annul a written executory contract, and to perpetually enjoin one of the parties thereto from performing the contract on his part, all the parties to the contract are necessary and indispensable parties to the suit, without which the court is without jurisdiction to annul such contract, or to enjoin a party from performing it.

Where a suit cannot be entertained and a decree made in respect to the interest before the court without doing manifest injustice to interested parties who are not and cannot be brought before the court, the suit will be dismissed.

The court will not decide a question which has become moot.

Appeal from District Court, McKinley County; Raynolds, Judge.

Suit by Gregory Page against the Town of Gallup and others. Judgment for complainant, and defendants appeal. Reversed and remanded with instructions.

Where a material issue is tendered by the pleadings, judgment on the pleadings is improper.

Burkhart & Coors, of Albuquerque, and Alfred Ruiz, of Gallup, for appellants.

H. C. Denny, of Gallup, and C. M. Botts, of Albuquerque, for appellee.

ROBERTS, J.

Appellee instituted this suit in the district court of McKinley county against the appellants, town of Gallup and its officials, by which he sought to enjoin and restrain the said appellants from carrying out the terms of a certain contract, entered into by the said town with the Stearns-Rogers Manufacturing Company for the purchase of electrical machinery and equipment. The complaint alleged that it was given out by said town that said machinery had been purchased for the purpose of pumping and supplying water to said town, but in truth and in fact such stated purpose was but a subterfuge, and that the machinery contracted for was purchased for the purpose of installing an electric light plant; that bonds had been voted and sold for the purpose of constructing a water-works system, and that the town officials were diverting funds so raised for the purpose of constructing and equipping an electric lighting system. Appellee was alleged to be a resident and taxpayer of the town, and suit was brought on behalf of himself and all others similarly situated. The complaint further alleged that the said electrical machinery and equipment so contracted to be purchased was not necessary or essential for a complete waterworks system for the said town, and that the purchasing of the same would be a waste of the public funds of the said town. This constituted what might be designated as appellee's first cause of action, and the relief sought as to this was an injunction preventing and restraining the appellants from performing or carrying out any of the terms of the contract for the purchase of said electrical equipment, and from entering or attempting to enter into further contracts for the purchase of additional electrical equipment, and from misappropriating and misapplying any of the funds from the issuance and sale of said water bonds, and from appropriating and applying any of the proceeds of said bond issue and sale to any other purpose than that of the construction and extension of the system for the purpose of supplying water to the said town of Gallup.

The appellants filed an answer, denying the misappropriation and that appellants intended to purchase, or had contracted to purchase, the machinery for the purpose of installing a lighting plant for the said town, and denied that the machinery was not necessary to furnish power for pumping a necessary supply of water for the town. The answer affirmatively alleged that the machinery contracted to be purchased was necessary for a modern electrical pumping plant to furnish an adequate supply of water for the present and reasonable anticipated needs of the town and its inhabitants; that no machinery whatever had been contracted for that was not necessary for said pumping plant, and to pump water, and that the town intended to use the same machinery which was installed and was necessary to operate the water pumps of the town to supply electric current for lighting purposes, but that such latter use was incidental to the primary use for pumping, and would not interfere with or impair the usefulness of the plant for the primary use of pumping water; that such incidental use was for the benefit of the town and its inhabitants; that no additional machinery whatever over that required for furnishing power for pumping water had been or would be purchased by the appellants with the proceeds of said bond issue.

The appellee in his complaint set up what is designated as a second cause of action against the appellants, in which he alleged that the town trustees were proposing to issue water and light revenue warrants of the town of Gallup in the amount of $30,000, and to use the proceeds derived therefrom for the purpose of installing an electric light plant and system for lighting the streets and residence of the town of Gallup; that they were pledging revenues derived from the waterworks, and the lighting plant to be constructed, to the payment of such revenue warrants and interest thereon; that such revenue warrants constituted an indebtedness of the town of Gallup, and the warrants when issued would be void for two reasons: First, the proposition to create the indebtedness had not been submitted to a vote of the qualified electors of the town, as required by section 12 of article 9 of the state Constitution; and, second, that it would create an indebtedness in excess of the limitation imposed by section 13 of article 9 of the state Constitution.

The answer as to this denied that the revenue warrants would constitute any indebtedness against the town of Gallup; alleged that only certain portions of the revenues derived from the water and lighting system were pledged to the payment of such revenue warrants; that the money to be derived therefrom was to be used for the construction and installation of a lighting system for the town of Gallup, which was to be operated in conjunction with the waterworks.

The trial court granted a temporary injunction upon the filing of the complaint, and, when appellants filed their answer, they moved the court to dissolve the temporary injunction, which was refused. Appellants then asked that the case be set down for trial. This was refused because of the view entertained by the court that the answer stated no defense to the matter set forth in the complaint. Appellee filed a reply, denying that portion of the answer which set up the fact that the purchase of the machinery in question was necessary for the operation of the water system.

After the court announced that no evidence would be heard counsel for appellee moved for a judgment on the pleadings, which was granted, and the temporary injunction was made permanent. By the final judgment the appellants were perpetually restrained and enjoined from fulfilling or carrying out any of the terms of the contract theretofore attempted to be entered into by them for the purchase by the said town of Gallup of electrical supplies and equipment, and from entering into, or attempting to enter into, further contracts for the purchase of additional electrical equipment, and from issuing or negotiating any of the evidences of indebtedness or so-called water and light revenue warrants attempted to be authorized by Ordinance 125 of the town of Gallup, and from misappropriating or misapplying any of the funds derived from the issue and sale of bonds theretofore made for the purpose of securing funds for the construction and extension of a system for supplying water for said town of Gallup, and from applying any of the proceeds of said bond issue and sale to any other purpose than that of the construction and extension of a system for supplying water for said town, and from doing or suffering to be done each and all of the acts and threatened acts complained of in appellee's complaint. To review this judgment this appeal is taken.

[1] The first point to be considered is whether the appellee was entitled to judgment on the pleadings. It is the contention of appellants that an issue of fact was raised by the answer; consequently they were entitled to a trial. The rule of law is well settled that “where a material issue is tendered by the pleadings, judgment on the pleadings is improper.” 31 Cyc. 608; Sutherland on Code Pleadings, vol. 1, § 1447; Reed v. Rogers, 19 N. M. 177, 141 Pac. 611; Dugger v. Young, 25 N. M. 671, 187 Pac. 552. The material issue tendered here by appellants' answer was as to whether or not the town council, acting in good faith within its discretion, determined and decided that it was necessary to install the electrical machinery in question for the purpose of pumping water for the town. The answer set up that competent engineers had advised the town council that the economical and efficient way to pump the water was to do it by electric generators, and use the current for the purpose of power with which to pump the water, and that the town council, in its discretion, had decided that this was the...