State Ex Rel.Burg v. City of Albuquerque

• Decision Date: 18 June 1926
• Docket Number: No. 2861.,2861.
• Parties: STATE ex rel.BURGv.CITY OF ALBUQUERQUE et al.
• Court: New Mexico Supreme Court

31 N.M. 576

249 P. 242

STATE ex rel.BURG

v.CITY OF ALBUQUERQUE et al.

No. 2861.

Supreme Court of New Mexico.

June 18, 1926.Rehearing Denied Aug. 11, 1926.

Syllabus by the Court.

A judgment of dismissal, erroneously entered, appearing in the record proper, is inherently and fatally defective, and may be contested in the Supreme Court without formal exception.

(a) The “alternative writ of mandamus” is the initial pleading when granted, and the application becomes functus officio.

(b) An alternative writ of mandamus should itself contain allegations of all necessary facts necessary to authorize the relief sought.

(c) The legal sufficiency of an alternative writ of mandamus is properly raised by answer.

The mere statement in a writ of mandamus that a copy of the application is attached does not make the allegations of fact in such application a part of the writ.

The allegations of fact in an application for an alternative writ of mandamus are no part of the writ, and ordinarily cannot be so considered in determining its legal sufficiency.

The question of the legal sufficiency of an alternative writ of mandamus, raised by the answer and sustained, authorizes the dismissal of the cause in absence of a request to amend the writ.

(a) Where the respondent in a mandamus proceeding answers the allegations of fact in the application, treating them as though contained in the alternative writ, such allegations of fact should be treated by the trial court as supplementing those contained in the writ.

Allegations of fact in mandamus proceedings should be pleaded with the same certainty, no more nor no less, as in ordinary actions.

Where allegations of fact in a pleading point unerringly to other facts not specifically pleaded, such pleading is not vulnerable to a general demurrer on account of a failure to specifically plead the latter facts.

It is the general rule that “mandamus” may issue to enforce the performance of a public duty by public officers not due to the government itself as such, upon application of any citizen whose rights are affected in common with those of the general public.

(a) See instances in this case in which a pleading is sufficient to withstand a general demurrer based upon the ground that its allegations are “conclusions of law.”

(b) A complaint will not be held insufficient on general demurrer, unless there is a failure to allege some matter essential to relief, and will not be held insufficient because the allegations are indefinite, incomplete, or ordinarily because they state conclusions. The remedy is a motion to make more definite and certain.

The word “people,” used in a city charter, providing for the submission of a question to a vote of “the people” of the city, means the qualified voters of such city.

As a matter of practice, the trial court should treat legal exceptions to an alternative writ of mandamus made in the answer as a demurrer would be treated in ordinary actions, giving the same opportunity to amend upon the writ being held insufficient in law.

On Motion for Rehearing.

The courts of this state will take judicial notice of public acts of the state Legislature creating, chartering, and conferring powers upon municipal corporations, and of all general laws relating thereto, but not of the fact of incorporation of any particular city under such laws, in the absence of statute requiring it.

Ordinarily this court will not review a question not raised in the court below, or presented to the Supreme Court by assignment of error, or one not argued or presented in the briefs of the parties, or a new and original question raised on motion for rehearing, except in a case where the judgment of the district court is inherently and fundamentally erroneous.

Constitutional questions, not raised in the regular and orderly procedure in the trial, are ordinarily rejected unless the jurisdiction of the court below, or that of the appellate court, is involved; in which case it may be raised at any time, or on the court's own motion.

Only persons claiming to be adversely affected by an act of the Legislature or charter of a city are authorized to question its constitutionality.

The function of amicus curiæ is to call the court's attention to the facts or situations that may have escaped consideration. He is not a party and cannot assume the functions of a party. He must accept the case before the court with the issues made by the parties.

Where the constitutionality of a provision in a city charter is not contested by an authorized person, and the jurisdiction of the court is not involved, the Supreme Court will not raise the question on its own account, and amici curiæ have no authority to do so.

Error to District Court, Bernalillo County; Hickey, Judge.

Proceeding by the State, on the relation of John Baron Burg, for mandamus to be directed to the City of Albuquerque and its commissioners. Judgment dismissing the action and quashing an alternative writ, and the relator brings error. Reversed and remanded.

See, also, 30 N. M. 424, 234 P. 1012.

The plaintiff in error filed a verified application in the district court of Bernalillo county for a writ of mandamus against the city of Albuquerque and its commissioners, to require such commissioners to submit for adoption or rejection by the qualified voters of the city a certain ordinance granting a franchise to the Albuquerque Gas & Electric Company; such referendum being requested by petitions as provided by a provision of the city charter of the city of Albuquerque. Upon such application, an alternative writ of mandamus was issued, but failed to meet the requirements of section 3415, Code 1915, in that it did not state facts showing the obligation of the defendants to perform the act which they were commanded to do. A pleading, entitled, “Answer and Return to Alternative Writ,” was filed by the city and its commissioners, setting up both allegations of law and of fact, as reasons for not complying with such mandate. The contents of this answer will appear more fully in the opinion.

Upon hearing, the district court dismissed the proceeding and quashed the writ because the writ failed to state a cause of action. Upon motion of the defendants in error, the bill of exceptions was stricken by this court, leaving only the record proper for consideration. The sole question to be determined is whether or not the court erred in dismissing the action and quashing the writ.

The parties will be referred to as relator and respondents, as they appeared in the district court.

The remedy against too general or indefinite allegations of a complaint is by motion.

John Baron Burg, Rodey & Rodey, and J. Lewis Clark, all of Albuquerque, for plaintiff in error.

H. B. Jamison, of Albuquerque, for defendants in error.

BRICE, District Judge (after stating the facts as above).

[1] 1. The first assignment of error sufficiently raises the question of whether or not the court erred in dismissing the case upon the grounds stated in the order of dismissal. It was not necessary for the relator to take any exception to the action of the court in dismissing said cause; for, if the court erred by such action, its judgment was inherently and fatally defective, appearing upon the face of the record proper, and may be contested by writ of error or appeal without an exception. Baca v. Perea, 25 N. M. 442, 184 P. 482; Barnes v. Scott, 29 Fla. 285, 11 So. 48; Platteter v. Lumber Co., 149 Wis. 186, 135 N. W. 535; Long v. Billings et al., 7 Wash. 267, 34 P. 936.

[2] 2. The alternative writ does not contain any allegations of fact showing the obligation of respondents to perform the act they were commanded in it to perform as required by the statute, and in that regard lacked allegations sufficient to state a cause of action. Upon granting of the alternative writ, the application is functus officio, and the alternative writ becomes the initial pleading in the case and should state a cause of action within itself. 18 R. C. L. p. 294; Crawford v. District School Board, 68 Or. 388, 137 P. 217, 50 L. R. A. (N. S.) 147, Ann. Cas. 1915C, 477. The question of its sufficiency in that regard was properly raised in the answer.

“The answer to an alternative writ of mandamus under our statutes may assign any legal reasons upon which respondent relies to defeat the issuance of the peremptory writ, as well as plead the facts, if any exists, on which he relies to defeat the issuance of the same.” State ex rel. Garcia v. Board of Co. Com'rs, 21 N. M. 632, 157 P. 656; Beadles v. Fry, 15 Okl. 428, 82 P. 1041, 2 L. R. A. (N. S.) 855.

[3] 3. Statements in the writ, making reference to a copy of the application as being annexed, were insufficient to incorporate the allegations of fact in the application as part of the writ. There was no reference made except it was stated that a copy of such application was annexed. This did not make its allegations of fact a part of the writ, even if such allegations could by proper reference be so made.

[4] 4. The relator cites Wampler v. State of Indiana ex rel. Alexander, 148 Ind. 557, 47 N. E. 1068, 38 L. R. A. 829, to the effect that the alternative writ of mandamus may be supplemented by the facts stated in the application in determining whether it is sufficient to withstand a demurrer. This authority supports such contention, but the statement of that court in the opinion shows that this practice is local, and by reason of long recognition by the courts apparently it was not thought best to change it. It is not the law of any other jurisdiction, that we can discover, where the writ is held to be the initial pleading after its issuance.

[5] 5. The respondents filed an answer raising the questions of the legal sufficiency of the writ and the application, also answering the allegations of fact in the application as though they were incorporated in the writ. Paragraphs 1 and 2 of the answer are in the nature of general demurrers, and,...