State Ex Rel. Garcia v. Bd. of Com'rs of Rio Arriba County.

• Decision Date: 02 May 1916
• Docket Number: No. 1847.,1847.
• Citation: 21 N.M. 632,157 P. 656
• Parties: STATE EX REL. GARCIAv.BOARD OF COM'RS OF RIO ARRIBA COUNTY.
• Court: New Mexico Supreme Court

21 N.M. 632

157 P. 656

STATE EX REL. GARCIA

v.BOARD OF COM'RS OF RIO ARRIBA COUNTY.

No. 1847.

Supreme Court of New Mexico.

May 2, 1916.

Syllabus by the Court.

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 exist, on which he relies to defeat the issuance of the same.

The Legislature, by the provisions of section 2 of chapter 12 of the Laws of 1915, providing for the salaries of deputy sheriffs of counties of the fourth class a total of not to exceed $700, intended to provide for the payment of salaries of such deputies as were appointed after the election of the county officers at the first general election held under the Constitution of the state, where deputies had been employed and expenditures made or contracted, to the extent of such limitation. The further limitation of the section that none, referring to deputies, be employed except upon the authority of the board of county commissioners was intended to have application only to the future, and does not require authorization of the board of county commissioners in the employment of deputies prior to the passage of the act.

An account by the sheriff of a county of the fourth class for reimbursement for sums paid out on account of the employment of deputies is not in contravention of the provisions of section 1 of article 10 of the Constitution of New Mexico, prohibiting county officers from receiving to his own use any fees or emoluments other than the annual salary provided by law.

Appeal from District Court, Rio Arriba County; E. C. Abbott, Judge.

Mandamus by the State, on the relation of Elias Garcia, against the Board of County Commissioners of Rio Arriba County, N. M. From judgment for defendant, plaintiff appeals. Reversed and remanded.

This proceeding in mandamus was instituted in the district court of Rio Arriba county by the relator, Elias Garcia, the duly elected, qualified, and acting sheriff of said county, who alleged in his petition for the writ that, in order to perform the duties incident to his office, the employment of deputies was absolutely necessary, and were therefore employed by relator, who made use of their services, in the proper discharge of his duties, from the time of his qualification as sheriff of said county until after the 20th day of February, 1915, at which time an act relating to county officers was passed by the state Legislature, being chapter 12 of the Session Laws of 1915, providing salaries and compensation of county officers and deputies. Relator further alleged by his petition that he had paid in part and become liable in law and by his promise to pay the sum of $2,158.00 to his said deputies for their services so rendered; that no compensation was fixed by law for the said sheriff or his deputies prior to the enactment of the salary measure referred to, adopted at the legislative session of 1915, and that by said act Rio Arriba county was designated a county of the fourth class, and the relator, under the terms of said act, became entitled to receive from said county the sum of $700 per year for the compensation of deputies employed by him prior to and up to the time of the passing of said law; that relator filed with the board of county commissioners of Rio Arriba county an itemized account under oath, as required by law, and that it became the duty of the board of county commissioners of said county to pay to said relator the said sum of $700 per year, or a total of $2,158.33, for deputy hire referred to. But, notwithstanding relator's demand upon the said board of county commissioners, and notwithstanding the fact that there were ample funds in the treasury to pay said claim, the defendant board of county commissioners failed and refused to pay the sum due and owing relator, or to issue certificates of indebtedness as provided by the salary measure, or in any other manner to settle said claim. Wherefore relator prayed for an alternative writ of mandamus, commanding the defendant board of county commissioners of said county to allow and pay the said claim, or to issue certificates of indebtedness therefor.

An alternative writ of mandamus reciting the facts referred to in said petition was subsequently issued, together with the rule to show cause, in response to which an answer was filed by defendant board of county commissioners of said county, in conformity with the order of the district court.

The answer of the defendant board of county commissioners set up that the information or petition of relator did not state facts sufficient to sustain the issuance of said alternative writ for the following reasons:

“(a) That it does not appear from said information and petition that the employment of deputy sheriffs by relator had been authorized by defendant board, as required by law to be done. (b) That it does not appear from said petition that relator has expended the sum demanded, to wit, $2,158.35, or any sum whatever in the employment of deputies, and the payment to him of said sum or any portion thereof would be in violation of section 6 of chapter 12 of the Laws of 1915, and contrary to the inhibition of section 1 of article 10 of the Constitution of the state of New Mexico.”

The answer further denied and admitted certain more or less formal allegations, set out in relator's petition and the writ, and, among others, denied that relator became and was entitled to receive from said county the sum of $700 per year, or any sum, for the purpose of paying deputies, admitted that relator filed his account as related in the petition, and that relator made demand for payment of said account as alleged, and that there were sufficient funds for the payment thereof, or that certificates of indebtedness could have been issued by said defendant board. And by way of further answer, the defendant board of county commissioners alleged that at no time had it authorized the expenditure of $700 per annum, or any sum, for the employment of deputies by relator, nor had it authorized relator to employ deputies at all, except that after the passage of the salary act referred to and pursuant to the terms thereof the said defendant board authorized relator, as sheriff of said county, to employ deputies, and fixed the annual compensation therefor at the sum of $300, and finally prayed for a dismissal of the writ at relator's cost. Whereupon relator filed his motion to strike paragraph 1 of the answer, on the ground that the answer to an alternative writ must be limited to a denial of the facts therein alleged, and because it was an attempt to create other issues than those of fact, which motion was overruled, and the action of the court duly excepted to. Thereupon certain findings were made by the district court and judgment entered, which recited that the court found that the information upon which the alternative writ was based does not state facts sufficient to sustain the issuance of a peremptory writ of mandamus, in that it does not appear from said information that the employment of deputies by relator had been authorized by the defendant board, as required by law to be done. And further finding that the payment by defendant board of the sum demanded by relator would be contrary to the provisions of chapter 12 of the Session Laws of 1915, and that said payment is inhibited by the provisions of section 1 of article 10 of the Constitution of New Mexico, and ordering and adjudging that the petition of relator and the alternative writ of mandamus be dismissed, and that the defendant board of county commissioners recover from the relator its costs. From such judgment of the district court an appeal was prayed and allowed.

An account by the sheriff of a county of the fourth class for reimbursement for sums paid out on account of the employment of deputies is not in contravention of the provisions of section 1 of article 10 of the Constitution of New Mexico, prohibiting county officers from receiving to their own use any fees or emoluments other than the annual salary provided by law.

E. P. Davies, of Santa Fé, for appellant.

John R. McFie and A. M. Edwards, both of Santa Fé, for appellee.

HANNA, J. (after stating the facts as above).

The first point presented for our consideration by the appellant is based upon the first assignment of error, and is predicated upon the action of the trial court in overruling relator's motion to strike paragraph 1 of the answer of respondent; appellant's contention in this respect being based upon the theory that the return of the respondent to the alternative writ of mandamus must be limited to a denial of the facts alleged therein, and that the motion should have been granted because the said paragraph of the answer attempted to create other issues than those of fact.

Appellant contends that under section 3420, Code 1915, no other pleading or written allegation is allowed than the writ and answer, and that under the authority of the case of Conklin v. Cunningham, 7 N. M. 445, 38 Pac. 170, the return of respondent to an alternative writ must be limited to a denial of the facts alleged therein, and traverses in pleadings cannot properly create other issues than those of fact, nor can the conclusion of law resulting from such statements in the alternative writ be controverted by the respondent in his answer. In a word, the theory of appellant is that the alternative writ has been declared legally sufficient by the court in signing the same and cannot be attacked as to its sufficiency in law, but the respondent is restricted to a denial of the facts recited in the alternative writ.

[1] The question turns upon the construction of our statute dealing with the subject of mandamus, which appears as sections 3411-3424, inclusive, of the Code of 1915.

Our first inquiry is directed to the intent of the statute in limiting...