State Ex Rel. Clancy v. Porter

• Decision Date: 17 December 1917
• Docket Number: No. 1989.,1989.
• Citation: 169 P. 471,23 N.M. 508
• Parties: STATE ex rel. CLANCY, Atty. Gen.,v.PORTER et al.
• Court: New Mexico Supreme Court

23 N.M. 508

169 P. 471

STATE ex rel. CLANCY, Atty. Gen.,

v.PORTER et al.

No. 1989.

Supreme Court of New Mexico.

Dec. 17, 1917.

Syllabus by the Court.

Where the existence of the fact that a petition signed by not less than a majority of the qualified electors residing within the territory embraced in the proposed incorporation is necessary, before the board of county commissioners is authorized to proceed with the incorporation of a village, under sections 3764 and 3766, Code 1915, and no provision is made in the statute for the determination of such fact by the said board, its action in incorporating a village may at any time be shown to have been without jurisdiction and void, by establishing the fact that the petition on which it acted was not so signed.

Appeal from District Court, Curry County; Richardson, Judge.

Quo warranto by the State of New Mexico, on relation of F. W. Clancy, Attorney General, against B. M. Porter and others. From a judgment dismissing the proceeding, relator appeals. Reversed.

Action by county commissioners in incorporating a village may at any time be shown to have been without jurisdiction by showing that petition on which it acted was not signed by majority of qualified electors, as required by Code 1915, §§ 3764, 3766.

Patton & Bratton, of Clovis, for appellant.

A. W. Hockenhull and W. A. Havener, both of Clovis, for appellees.

ROBERTS, J.

This is a quo warranto proceeding, and was instituted in the district court of Curry county by the state on relation of Frank W. Clancy, Attorney General, against the respondents and appellees to inquire by what right respondents were exercising the functions and enjoying the privileges and benefits of certain purported and pretended offices in the purported and pretended village of Melrose, in Curry county; it being alleged that said purported and pretended village had never been incorporated in the manner and form prescribed by law.

Respondents filed their plea and answer in which they alleged that said village was duly incorporated in September, 1915, and that they were the duly qualified and acting officers of said village. They attached to their plea copies of the minutes or orders of the board of county commissioners upon which they rely for the authority of the corporation and its legal creation. To this plea relator filed a first amended replication in which he admitted the entry of the minutes alleged to have been made by the corporation, but alleged that the petition for the incorporation of the village of Melrose had not been signed by a majority of the qualified voters residing within the territory embraced in the proposed incorporated village. The replication contained other allegations of irregularities in the creation of the pretended corporation which it was alleged invalidated the same. Respondents filed a rejoinder which amounted to a general denial of relator's replication. Thereafter respondents filed a motion to dismiss upon three grounds; the first being:

“That the court herein has no jurisdiction to hear or determine the within quo warranto proceedings for the reason that the findings and order of the county commissioners duly incorporating the village of Melrose was and is conclusive.”

The court having sustained this ground of the motion and dismissed the proceedings, its action in so doing presents the question for review in this court.

The provisions of the statute relating to the incorporation of villages, in so far as they bear upon the present question, are sections 3764 and 3766, Code 1915, which reads as follows:

“3764. That whenever the inhabitants of any part of this State, not embraced within the limits of any city or incorporated town, shall desire to be organized into an incorporated village, they may apply by petition in writing, signed by not less than a majority of the qualified voters residing within the territory embraced in the proposed incorporated village, to the board of county commissioners of the county wherein such proposed village is situated, which petition shall describe the territory to be included in such proposed village and have annexed thereto an accurate map or plat thereof.”

“3766. That when any such petition as herein provided shall be presented to the board of commissioners, which must be at a regular meeting thereof, the same shall be filed by the clerk to be finally acted upon at the next regular meeting of the board. If the commissioners are satisfied with the genuineness of the signatures appearing on said petition and upon the deposit of sufficient money or a guarantee to be approved by the board to cover the expenses of the survey and census herein provided for, they shall appoint some suitable person to take a census of the inhabitants of such proposed village and cause a survey to be made by the county surveyor, who shall mark the boundaries of the same by substantial stone monuments so that the same can be readily traced and shall establish and set a like monument at the center of such village, and shall file with the clerk of said board a report of such survey, with field notes and plat thereof, bearing reference to the public surveys of the United States. The report of such survey and the census herein provided for shall be filed on or before the first day of the next regular meeting of the county commissioners and if by them found to comply with the requirements of this act they shall declare the people of the territory embraced in such survey to be an incorporated village and thereupon shall order an election to be held therein for the election of such officers thereof as are provided for in the next section.”

The theory upon which the trial court sustained the motion was that the power had been conferred upon the board of county commissioners by the Legislature to determine the fact as to whether or not the petition had been signed by the requisite number of qualified voters residing within the territory embraced in the proposed incorporated village; there being quite a number of authorities holding that, where such power is conferred upon a court or tribunal, its...