State ex rel. Garcia v. Martinez

• Decision Date: 06 October 1969
• Docket Number: No. 8647,8647
• Parties: STATE ex rel. Eloy GARCIA, Felix Sanchez and Sam Gonzales, Plaintiffs-Appellants, v. Marcelino MARTINEZ, John Valdez, George Wisehart, J. E. Rael, Max Ortega, Benny Ortega, Village of Questa, Taos County Board of County Commissioners, J. J. Montoya, Felipe Ortega and Paul Casias, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 458

459 P.2d 458

80 N.M. 659

STATE ex rel. Eloy GARCIA, Felix Sanchez and Sam Gonzales, Plaintiffs-Appellants, v. Marcelino MARTINEZ, John Valdez, George Wisehart, J. E.

Rael, Max Ortega, Benny Ortega, Village of Questa, Taos

County Board of County Commissioners, J. J. Montoya, Felipe

Ortega and Paul Casias, Defendants-Appellees.

No. 8647.

Supreme Court of New Mexico.

Oct. 6, 1969.

Lorenzo E. Tapia, Albuquerque, Watson & Watson, Neil C. Stillinger, Santa Fe, for plaintiffs-appellants

Eliu E. Romero, Taos, Bachicha & Corlett, Santa Fe, for defendants-appellees.

OPINION

MOISE, Justice.

This is a quo warranto proceeding in which the validity of the incorporation of the Village of Questa is at issue. To dispose of this appeal we need consider only the question of whether the trial court ruled correctly on the issue of where the burden of proof lay, and on the legal effect of the findings of the board of county commissioners that all statutory requirements had been met.

Appellees resist consideration of the two points deemed controlling on the grounds that no attack was made on the findings of the trial court in this regard and no requested findings were submitted by appellants. It is sufficient answer to appellees' argument to point out that the points relied on by appellants are in the nature of attacks on the rulings of the trial court on legal issues, and accordingly may be advanced here without findings or requested findings with reference thereto. Compare New Jersey Zinc Co. v. Local 890 of International Union of Mine, Mill & Smelter Workers, 57 N.M. 617, 261 P.2d 648 (1953). (Although Supreme Court Rule 15 (§ 21--2--1(15), N.M.S.A.1953) has been rewritten since these cases were decided, no change was made that would alter the results of this decision.)

Where did the burden of proof rest--on plaintiffs-appellants or on defendants-appellees? The answer is clear. In the early case of State ex rel. Northwestern Colonization & Improvement Co. of Chihuahua v. Huller, 23 N.M. 306, 334, 168 P. 528, 536, 1 A.L.R. 170 (1917); cert. denied, Huller v. N.M. ex rel. Northwestern Colonization & Improvement Co., 246 U.S. 667, 38 S.Ct. 336, 62 L.Ed. 929, dismissed for lack of jurisdiction, 247 U.S. 503,38 S.Ct. 536, 62 L.Ed. 1239 (1918), a proceeding in the nature of quo warranto to try title to office in a private corporation, we stated that the burden rested upon the respondents 'at all times to justify their alleged acts of usurpation.' The rule as thus stated is generally recognized as applicable as well in quo warranto cases involving public or municipal corporations. People ex rel. Smith v. City of San Jose, 100 Cal.App.2d 57, 222 P.2d 947 (1950); Whitten v. Chapman, 45 Idaho 653, 264 P. 871 (1928); Jones v. State ex rel. McFarland, 207 Miss. 208, 42 So.2d 123 (1949); 17 McQuillin, Mun.Corp., § 50.19 (3rd Ed. 1968); 4 Yokley, Mun.Corp., § 599 (1959); 44 Am.Jur., Quo Warranto, §§ 106, 107. It is accordingly apparent that the trial court erred insofar as it held that appellants had the burden of proof of the allegations of their complaint. It would not necessarily follow that this error must result in a reversal, unless the appellants' position was prejudiced by the court's ruling which denied them the right to attack the findings of the county commission which support the commission's jurisdiction to establish the municipality. The answer to this problem revolves directly around whether the last sentence in § 14--4--1, N.M.S.A.1953, as amended by ch. 145, § 1, N.M.S.L.1939, made the findings by the county commission of the jurisdictional facts required thereby conclusive and not subject to attack in a quo warranto proceeding such as this. The section, as amended, reads (it was repealed by ch. 300, § 595, N.M.S.L.1965):

'Whenever the inhabitants of any part of this state, not embraced within the limits of any incorporated city, town or village, 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 owners of real estate proposed to be included within the incorporated village, and who have paid a real estate property tax thereon for the previous year, and who reside within such territory, to the board of county commissioners of the county wherein such proposed village is situated, which petition shall have annexed thereto an accurate map or plat thereof. The said board of county commissioners shall determine from the tax rolls of the county whether a majority of the owners of real estate located in such territory have paid such property tax and have signed the petition.' (Emphasis supplied.)

This section was considered in State ex rel. Clancy v. Porter, 23 N.M. 508, 169 P. 471 (1917), without the last italicized sentence, which was added in 1939 (ch. 145, § 1, N.M.S.L.1939). It was held that absent a provision in the statute that the board of county...