State Ex Rel. Perea v. Bd. of Com'rs of De Baca County

• Decision Date: 02 July 1919
• Docket Number: No. 2319.,2319.
• Citation: 182 P. 865,25 N.M. 338
• Parties: STATE ex rel. PEREA et al.v.BOARD OF COM'RS OF DE BACA COUNTY et al.
• Court: New Mexico Supreme Court

25 N.M. 338

182 P. 865

STATE ex rel. PEREA et al.

v.BOARD OF COM'RS OF DE BACA COUNTY et al.

No. 2319.

Supreme Court of New Mexico.

July 2, 1919.On Motion for Rehearing, July 31, 1919.

Syllabus by the Court.

A “ministerial act” is an act which an officer performs under a given state of facts, in a prescribed manner, in obedience to a mandate of legal authority, without regard to the exercise of his own judgment upon the propriety of the act being done. Held, that chapter 11, Laws 1917, requiring the board of loan commissioners to determine the amount of indebtedness owing by certain counties, from parts of which a new county was created, and to apportion such debts between the new county and the old counties upon the basis of the assessed valuation which the property taken from the old county bore to the total assessed valuation in such old county, did not confer upon such board judicial powers.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Ministerial Act.]

Sections 9, 10, and 11, c. 11, Laws 1917, construed. Held, that De Baca county was liable for its pro rata share of the total indebtedness of the counties from which it was carved.

The apportionment of debts and property between two counties, upon division, belongs exclusively to the Legislature. The legislative will in the matter is supreme in the absence of constitutional requirements.

On Motion for Rehearing.

Section 10, art. 9, of the Constitution, which limits the right of a county to issue bonds, has no application to the right of the Legislature, in the creation of a new county, to fix the liability of a new county to the parent county and to require the new county to issue bonds therefor.

Appeal from District Court, De Baca County; Richardson, Judge.

Mandamus by the State, on the relation of Florentino Perea and others, against the Board of County Commissioners of De Baca County and others. From an adverse judgment, plaintiffs appeal. Reversed and remanded, with directions, and rehearing denied.

A ministerial act is an act which an officer performs under a given state of facts, in a prescribed manner, in obedience to a mandate of legal authority, without regard to exercise of his own judgment on the propriety of the act being done.

Chester A. Hunker, Chas. W. G. Ward, and John D. W. Veeder, all of Las Vegas, for appellants.

H. R. Parsons, of Ft. Sumner, for appellees.

ROBERTS, J.

The county of De Baca was created by chapter 11, Laws 1917, out of portions of Guadalupe, Chaves, and Roosevelt counties. Chapter 16, Laws 1912 (chapter 91, Code 1915), created the board of loan commissioners of the state of New Mexico, composed of the Attorney General, state treasurer, and state auditor, for the purpose of fixing and determining the indebtedness to be assumed by the state under the Enabling Act and the Constitution of New Mexico, and refunding the same. The act creating De Baca county provided that the board of loan commissioners should ascertain the total indebtedness of the counties of Chaves and Guadalupe, less the amount of cash on hand, to meet such indebtedness at the time the act went into effect, and that from the assessment rolls for the year 1916 such board should ascertain the total value of the taxable property in each of said counties and the total value of the taxable property in the area taken from each of said counties to form the county of De Baca, and the indebtedness owing by each of the parent counties, and that De Baca county should pay its proportionate part of such indebtedness based on the said assessed valuation of the part so taken, compared with the assessed valuation remaining in the parent county.

The board of loan commissioners determined that the act required the payment by De Baca county to the county of Guadalupe of its proportionate part of the total indebtedness of Guadalupe county owing at the time the new county was created. The county commissioners of De Baca county dispute the liability of the new county as to all of the indebtedness of Guadalupe county, save the bonded indebtedness. The board of loan commissioners held that De Baca county should pay to the county of Guadalupe the sum of $28,571.52, which represented its part of the total indebtedness of Guadalupe county. The commissioners of De Baca county admitted a liability of $12,144.75 only.

Suit in mandamus was instituted by the board of commissioners of Gaudalupe county against the board of commissioners of De Baca county to require such board to issue the bonds of the new county in the sum fixed by the board of loan commissioners. The case was heard in the district court upon stipulated facts. It is agreed that the amount fixed by the board of loan commissioners is correct if De Baca county is liable for its proportionate part of the total indebtedness of Guadalupe county. On the other hand, if liable only for its proportionate part of the bonded indebtedness, the amount which it should pay is $17,021.60.

The trial court held that De Baca county was liable only for its pro rata share of the bonded indebtedness, and that under the legislative act it was not required to pay a part of the floating indebtedness of Guadalupe county. To review this judgment this appeal is prosecuted by the board of commissioners of Guadalupe county.

Two questions are presented for determination, viz.: First, did the act in question confer upon the board of loan commissioners judicial powers in contravention of the Constitution of the state? and, second, was De Baca county, under the terms of the act, required to pay to Guadalupe county only its proportionate part of the bonded indebtedness of the parent county, or its proportionate part of the total indebtedness? The first question requires only passing notice. The act creating the board of loan commissioners and the act now under consideration did not attempt to confer upon such board judicial powers.

[1] A ministerial act is an act which an officer performs under a given state of facts, in a prescribed manner, in obedience to a mandate of legal authority, without regard to the exercise of his own judgment upon the propriety of the act being done. Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1, Ann. Cas. 1915C, 200; Rains v. Simpson, 50 Tex. 495, 32 Am. Rep. 609. And, as said by the Indiana Supreme Court in Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468:

“The act is none the less ministerial because the person performing it may have to satisfy himself that the state of fact exists under which it is his right and duty to perform.”

Under the act creating the board of loan commissioners and the act now under consideration, such board was only required to determine the amount of indebtedness owing, and in the case of De Baca county the assessed valuation of the property taken from the parent county and put into the new county and the proportionate part which such value bore to the total valuation of the property of the old county as it originally existed. This was not a judicial function, but a ministerial act.

The main point is as to whether De Baca county was liable for its pro rata share of the total indebtedness, or only the bonded indebtedness of the parent county. Section 9 reads as follows:

“As soon as practicable...