Ward v. City of Roswell
| Citation | 281 P. 28,34 N.M. 326 |
| Decision Date | 19 September 1929 |
| Docket Number | No. 3284.,3284. |
| Parties | WARDv.CITY OF ROSWELL et al. |
| Court | Supreme Court of New Mexico |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Operation of motion illegally adopted by city council to furnish free water to city officials may be enjoined at suit of taxpayer.
City council may not dispose of public property gratuitously without authority of law.
Compensation of city officials can only be fixed by ordinance.
Appeal from District Court, Chavez County; Brice, Judge.
Taxpayer's suit by M. H. Ward against the City of Roswell and others. From an adverse decree, defendants appeal. Affirmed and remanded.
Operation of motion illegally adopted by city council to furnish free water to city officials may be enjoined at suit of taxpayer.
John T. McClure and J. C. Gilbert, both of Roswell, for appellants.
Reese & Reese, of Roswell, for appellee.
This is a taxpayer's suit to enjoin the furnishing of free water to the city officials of Roswell from its municipally owned plant under a motion or resolution passed by the city council, and recorded as follows:
The decree recites that a demurrer to the complaint was overruled, and the defendants given ten days to plead: that they failed to plead within said time, announced that they declined to plead, and would stand on their demurrer; that the court then heard the case upon its merits, and heard all evidence submitted in behalf of the plaintiff. The decree then incorporates findings of fact, and enjoins enforcement of the motion or furnishing of free water to city officials.
There is some contention as to the procedure. Appellants contend that some of the facts found are not within the pleadings, and cannot be considered in support of the decree. Appellee contends that, since appellants took leave to plead, they have waived the demurrer, and that their position here is as if they had not demurred, and that, having failed to bring up the evidence, the findings are conclusive.
As we see little in the findings to affect the questions really argued, we shall not concern ourselves with these contentions.
[1][2] The demurrer, of course, was addressed to the sufficiency of the allegations of the complaint. We understand appellants to question their sufficiency on the following grounds: First, it does not appear that plaintiff is without other adequate remedy; second, it does not appear that he is threatened with substantial or irreparable injury; third, it does not appear that the adoption and operation of the motion were illegal.
The right of a taxpayer to sue to enjoin threatened devastavit of municipal funds or property is well established in this state. Asplund v. Hannett, 31 N. M. 641, 249 P. 1074, 58 A. L. R. 573. Such right...
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City of Las Cruces v. Rio Grande Gas Co.
...which the taxpayer shares are not in point. See Shipley v. Smith, 45 N.M. 23, 107 P.2d 1050, 131 A.L.R. 1225 (1940); Ward v. City of Roswell, 34 N.M. 326, 281 P. 28 (1929). Rio Grande seeks injunctive relief on the basis that Las Cruces is distributing natural gas beyond the five-mile limit......
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Shipley v. Smith
...of the performance of the general public duty because the people are regarded as the real, moving party.”’ See also Ward v. City of Roswell, 34 N.M. 326, 281 P. 28, where we said: “The right of a taxpayer to sue to enjoin threatened devastavit of municipal funds or property is well establis......
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