Stockard v. Mayor & City Council of Roswell

• Decision Date: 31 August 1911
• Citation: 117 P. 846,16 N.M. 340
• Court: New Mexico Supreme Court
• Parties: TERRITORY ex rel. STOCKARDv.MAYOR & CITY COUNCIL OF ROSWELL, NEW MEXICO.

16 N.M. 340

117 P. 846

TERRITORY ex rel. STOCKARD

v.MAYOR & CITY COUNCIL OF ROSWELL, NEW MEXICO.

Supreme Court of the Territory of New Mexico.

Aug. 31, 1911.

Syllabus by the Court.

The relator, and upwards of 500 others, purporting to be electors and residents of the city of Roswell, signed and presented to the mayor and city council of said city a petition for an election to determine whether Roswell would establish the commission form of government, so called, under the provisions of chapter 87, Acts of 1909, of the Assembly of New Mexico. The petition was referred to a committee of members of the council. Under the circumstances recited in the statement of the case, which follows, held, that the withdrawals from the petition there described were effectual, and that the peremptory writ, which was granted pro forma, should have been refused.

(Additional Syllabus by Editorial Staff.)

Where a motion to award a peremptory writ of mandamus did not specify as a ground therefor that the return to the alternative writ set up inconsistent defenses, that ground for sustaining the issuance of the peremptory writ will not be considered in the Supreme Court.

Appeal from District Court, Chaves County; before Justice E. R. Wright.

Mandamus by the Territory, on the relation of J. W. Stockard, against the Mayor and City Council of Roswell. From an order granting a peremptory writ, pro forma, respondents appeal. Reversed and remanded.

Mechem and Wright, JJ., dissenting.

The relator, and upwards of five hundred others, electors and residents of the City of Roswell, signed and presented to the Mayor and City Council of said city, a petition for an election to determine whether Roswell would establish the commission form of government, so called, under the provisions of Chapter 87, Acts of 1909, of the Assembly of New Mexico. The petition was referred to a committee of members of the council. Under the circumstances recited in the statement of the case, which follows: Held, that the withdrawals from the petition there described were effectual, and that the peremptory writ, which was granted pro forma, should have been refused.

The respondents, here the appellants, were, on the 2d day of May, 1911, and still are, the mayor and city council of the city of Roswell, and constituted the governing body of that city under the laws of New Mexico. At a regular meeting of said body, held on May 2, 1911, a petition for an election on the commission form of government, under chapter 87, Acts of 1909, of the Assembly of New Mexico, purporting to bear the signatures of 584 residents and electors of the city of Roswell, was presented, and was immediately referred to a committee of three members of the council, with instructions to investigate and report on the sufficiency of the petition. At the next regular meeting of the mayor and council, held June 9, 1911, the committee reported that, “after disregarding as signers the names of such persons as have petitioned for leave to withdraw, and names of persons not electors, residents of the city of Roswell, we find *** that said ‘Petition for Election’ does not contain names of the requisite number of electors, residents of the city of Roswell, as required by law, and it is therefore insufficient to warrant the calling of an election pursuant thereto, and so accordingly recommend that the same be denied. ***” The committee's report was accepted and approved, and the petition in effect denied. On June 13, 1911, a petition for mandamus was filed in the district court of Chaves county, to require the mayor and city council to call an election as prayed for in said petition, or show cause why they had not done so, and an alternative writ of mandamus was issued accordingly, to which the respondents duly made a return. The relator thereupon moved for a peremptory writ of mandamus, on grounds set out in the motion, and which, so far as necessary, are stated in the opinion. This motion was, by agreement, heard by the judge of the Sixth district, and by him sustained, pro forma, and a peremptory writ awarded, from which action the respondent appealed to this court.

H. M. Dow, for appellants. Dye & Dunn and J. D. Mell, for appellee.

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

[2] In the brief for the relator, it is claimed that in the return of the respondents to the alternative writ inconsistent defenses were set up, and that therefore the peremptory writ was properly awarded. In the relator's motion to award the peremptory writ, that ground is not specified, and it is not therefore a question which was decided by the trial court, and is not here for review.

[1] There remain but two questions between the parties for determination by this court, or one question with two branches, namely, whether an elector who signed the petition in question, and whose signature was on it when it was received by the mayor and council, had the right afterwards to withdraw from the petition, or, as stated in the briefs, “withdraw his name,” so as to prevent it from being counted to make up the number requisite, by section 2 of the act referred to, to secure the calling of an election; and whether, if such a right exists, effectual withdrawals were made in this instance.

As to the latter branch of the question, it is contended that the committee to which the petition was referred had no power to accept or make such withdrawals. Undoubtedly it had not the power to accept withdrawals as a finality, and it did not apparently attempt that, as the report does not state that leave to withdraw had been granted, or that the names of persons not electors had been striken out, but, in effect, recommended that the mayor and council “disregard” such names and deny the petition. While the report does not recite that those names were presented with it to the mayor and council, it would seem that such must have been the case, since the names of both classes are fully set forth in the return to the alternative writ of mandamus. It is true that in the return it is, in substance, stated that the signatures “were withdrawn by the committee at the request and upon the...