Territory of New Mexico v. Stokes
| Decision Date | 28 January 1881 |
| Citation | 2 N.M. 161,1881 NMSC 013 |
| Parties | THE TERRITORY OF NEW MEXICO v. JOSEPH STOKES AND WILLIAM MULLEN. |
| Court | New Mexico Supreme Court |
Appeal from the District Court for Santa Fe county, PRINCE, J.
The defendants in this case were indicted by the grand jury of San Miguel county for burglary under sec. 8, chap. 1, title 8 of an act, entitled " An act to provide for the incorporation of railroad companies and the management of the affairs thereof, and other matters relating thereto," approved February 2d, 1878 (Laws of 1878, p. 43).
Change of venue was taken to Santa Fe county, and the cause tried at the July term, 1880, of the district court at Santa Fe county.
After the evidence was in, defendants, by their counsel, moved the court to instruct the jury to find a verdict of " not guilty," for the reason that the territory had not shown that the defendants entered by force, or otherwise, any car of any corporation formed under the act of the legislature of New Mexico, approved February 2d, 1878, which motion the court overruled, and defendants duly excepted.
There was a verdict of guilty, and motions in arrest of judgment and for new trial were filed in due time.
The bill of exceptions shows that no evidence whatever was introduced on the part of the prosecution to prove that the New Mexico and Southern Pacific Railroad Company (whose car defendants were charged with entering) was organized under the act of February 2d, 1878, above mentioned, and that the court admitted in evidence, against the objection of defendants, a copy of certain articles of incorporation, set forth in the record, pp. 19 to 28.
P. F Conway and C. H. Gildersleeve for appellants.
I.-Appellants claim that the court below erred in admitting in evidence the articles of incorporation above mentioned, and in refusing to instruct the jury to acquit.
An examination of the record (pp. 19 to 28), will show that the articles of incorporation introduced by the prosecution are not drawn in accordance with the provisions of the act entitled " An act to provide for the incorporation of railroad companies and the management of the affairs thereof and other matters relating thereto," approved February 2d, 1878 (Laws of 1878, p. 17).
Sub-head 10, of sec. 2, title 1, chap. 1 of said act (p. 18, Laws of 1878), provides that articles of incorporation must set forth " that at least ten per cent. of its capital stock subscribed has been paid to the treasurer of the intended corporation, giving his name and residence." Section 4 same title and chapter of said act (p. 18, Laws of 1878) provides that, before filing articles of incorporation, the incorporators must have actually subscribed to the capital stock of the corporation at least one thousand dollars for each mile of its road and branches, and at least ten per cent. thereof must have been paid for the benefit of the corporation to a treasurer appointed by subscribers to articles of incorporation.
Section 5, same chapter and title of said act (p. 19, Laws of 1878) is as follows: " There must be securely attached to said articles of incorporation an affidavit of the treasurer named therein, that the requisite amount of capital stock of the intended corporation has been actually subscribed, and that ten per cent. thereof has been actually paid to him for the benefit of said corporation, stating the amount of stock subscribed, and the amount actually paid in."
The articles of incorporation admitted by the court below do not comply in any manner with the provisions of the statute last above quoted, and consequently the New Mexico and Southern Pacific Railroad Company is not a corporation formed under the provisions of the act of Feb. 2d, 1878. Section 8, title 8, chap. 1 of said act (p. 43, Laws of 1878), reads as follows: " Any person who shall in the day or night time, enter by force or otherwise, any car of any corporation, formed under this act, with intent to steal any valuable thing there and then being, shall be deemed guilty of burglary, and upon conviction thereof, shall be punished as in other cases of burglary."
There can be no doubt that the indictment in this case was brought under this section, and in view of the failure of the incorporators of the New Mexico and Southern Pacific Railroad Company to comply with the provisions of this law in framing their articles of incorporation, it is plain that the objection of defendants to the introduction of said articles of incorporation was well taken, and that the court should have given the instruction to the jury to find the defendants not guilty as prayed for in their motion.
II. The action of the court below in admitting said articles of incorporation, and refusing to instruct the jury to acquit, was based upon section 1 of an act entitled " An act in reference to certain incorporated companies in the territory of New Mexico," approved Feb. 12th, 1878 (Laws of 1878, p. 52). We claim that this section cannot be so construed.
It provides that all powers, privileges and exemptions conferred on corporations organized under the act of Feb. 2d, 1878, are also conferred on corporations organized for railroad purposes under the general incorporation law of Dec. 27th, 1867 and Jan. 30th, 1868. Section 8 of the act of Feb. 2d, 1878, under which the indictment is brought, confers no power, privilege or exemption upon a railroad company. It is an act of the sovereign declaring certain acts to be a crime of a nature different from what it was before, or rather making that a crime which was not prior to the passage of the law. It is in derogation of the common law, and should be strictly construed.
The words, powers, privileges and exemptions, used in the act approved Feb. 12th, 1878, Laws of 1878, p. 52, have no reference to sec. 8, title 8, chap. 1, act of Feb. 2d, 1878 (Laws of 1878, p. 43). The first thing requisite in the construction of an act of the legislature is to discover what is the intention of the legislature.
Let us see what was meant and intended by the legislature in the use by it of these words, powers, privileges and exemptions.
Fortunately for the purposes of this inquiry, the legislature has not left its meaning dark or obscure; the powers, privileges and exemptions meant and intended by the act of Feb. 12th, 1878, are set forth at large and in the utmost minutiæ of detail, in the act of Feb. 2d, 1878.
First. As to powers, see title 6, chap. 1 of act approved Feb. 2d, 1878 (pp. 31 to 39, Laws of 1878); there they are defined to be the power of succession by its corporate name, to sue, and be sued in court, to make and use a common seal, and alter the same at pleasure, to acquire, purchase, hold and convey real estate, and so on to the end of the chapter.
Second. As to privileges and exemptions, see title 9, chap. 1, secs. 1 to 10 inclusive, of act approved Feb. 2d, 1878 (Laws 1878, p. 49).
The powers, privileges and exemptions meant are all referred to and defined in the sections above quoted, but nowhere among them do we find any reference to the section of the same act defining the offense of burglary; but this section is found under its proper heading: " Regulation and Management." The conclusion seems most reasonable, that the legislature referred to the powers, privileges and exemptions specifically granted, and not to the section defining a criminal offense.
We submit that, in view of the foregoing, the law of Feb. 12th, 1878, does not bring railroad companies not organized under the law of February 2d, 1878, within the operation of the section defining burglary here sought to be invoked, and that the court below erred in the admission of the testimony complained of and in overruling the motions for new trial, and in arrest of judgment.
The act of February 12th, 1878, attempts only to confer certain " powers, privileges and exemptions" on railroad corporations, and does not in any manner pretend or assume to confer on the territory the right of prosecution for any new character of statutory crime."
The act of February 12th, 1878, is wholly and totally null and void; it attempts to confer on railroad corporations organized previous to February 2d, 1878 (to wit, under the law of December 27th, 1867, and the act of January 30th, 1868, amendatory thereto), all the " powers, privileges and exemptions" conferred on railroad corporations, and for the management of the affairs hereof, by the act approved Feb. 2d, 1878, and hence is in violation of the act of congress, June 10th, 1872, Revised Statutes U.S., sec. 1889, p. 333, which says that " legislative assemblies of the several territories shall not grant private charters or especial privileges," etc."
This act of February 12th, 1878, attempts to grant an especial privilege, and to grant the same...
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