Williams v. City of Tucumcari.
| Decision Date | 30 July 1926 |
| Docket Number | No. 2907.,2907. |
| Parties | WILLIAMSv.CITY OF TUCUMCARI. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where a complaint is verified and the answer thereto is not verified, the court may, upon motion seasonably made, grant permission to a defendant to add a verification; although there is pending at the time a motion to strike the answer and for judgment because of such defect.
A motion for judgment on the pleadings made by plaintiff avails nothing where the complaint does not state a cause of action.
Where a general provision in a statute authorizes the fixing of salaries of all officers of a city, without stating specifically how it shall be done, and a special provision of the same section requires the city clerk's salary to be fixed by ordinance, the special provision must prevail over the general provision, if they conflict.
Where the statute requires an act of a city to be done in the form of an ordinance, it can only be done in that form; a resolution is not sufficient, except, perhaps, when passed with all formalities required of ordinances; an informal order of the city council is not sufficient.
Appeal from District Court, Quay County; Hatch, Judge.
Action by J. C. Williams against the city of Tucumcari to recover salary as city clerk. From a judgment for defendant, plaintiff appeals. Affirmed.
The plaintiff's complaint was verified and the defendant's answer thereto was not verified. The plaintiff moved to strike the answer and for judgment. While this motion was pending, the defendant moved for permission to add a verification to its answer, which was sustained by the court, and thereupon the answer was duly verified. The court then overruled plaintiff's motion to strike the answer and for judgment, following which the plaintiff filed a reply.
The facts material to a decision of this case are substantially as follows: The city of Tucumcari is a municipality existing under the laws of the state of New Mexico. That in October, 1908, ordinance No. 7 was passed by said city's council, which, among other things, fixed the salary of the city clerk at $25 per month, and has not been repealed by any subsequent ordinance. That on March 26, 1920, the city council of the city of Tucumcari passed the following order, as shown by the minutes of the city council of that date:
At the meeting of the city council of said city held on March 24, 1922, the city council passed the following order, as shown by its minutes of said date:
The minutes of each meeting were signed by the mayors in office, and attested by the city clerk.
From the beginning of the term of office of the new officers, succeeding March 26, 1920, the city clerk was paid $125 a month. The plaintiff was elected clerk of the city of Tucumcari at the election held on April 4, 1922, and duly qualified as such April 14, 1922. After the passage of the order of March 26, 1920, and until August 1, 1922, the city clerk was paid $125 per month, the plaintiff having received a salary of $125 per month from the time he was inducted into office until August 1, 1922. From that date ordinance No. 160 became effective, authorizing the employment of a waterworks clerk to collect the water rents and garbage tax, work that had previously been done by the city clerk. The council then appointed a collector of rents and garbage tax, as provided by said ordinance No. 160, and relieved the city clerk of this work, and reduced his salary to $25 per month. Until the time this suit was brought, five months had elapsed during which time plaintiff had been paid $25 per month. This action was brought to recover the $100 per month for five months claimed by him under the orders of the city council heretofore mentioned.
A motion for judgment on the pleadings made by plaintiff avails nothing where the complaint does not state a cause for action.
C. H. Alldredge, of Tucumcari, and H. A. Kiker, of Raton, for appellant.
R. A. Prentice, of Tucumcari, for appellee.
[1][2] We have concluded there was never any legal authority for the city council to pay to plaintiff the salary claimed, which makes it unnecessary to decide a number of propositions advanced. The allegations of the complaint show clearly that such claim is based upon informal orders made by...
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Dugger v. City of Santa Fe
...No. 1985-107. In New Mexico, a resolution does not carry the weight of law, as do ordinances for municipalities. Williams v. City of Tucumcari, 31 N.M. 533, 249 P. 106 (1926). Thus, it is commonly recognized that "a resolution, generally speaking, is simply an expression of opinion or mind ......
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Atlixco Coalition v. County of Bernalillo, 18,901, 18,950, 18,951.
...with the requisite formality which would allow the inference that they are de facto ordinances. See also Williams v. City of Tucumcari, 31 N.M. 533, 536, 249 P. 106, 107 (1926) (noting that resolutions do not have the weight of law, as does an ordinance). This argument, however, ignores sub......
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West Old Town Neighborhood Ass'n v. City of Albuquerque
...as do ordinances). In Dugger, this Court discussed the difference between resolutions and ordinances citing to Williams v. City of Tucumcari, 31 N.M. 533, 249 P. 106 (1926) and 5 Eugene McQuillin, The Law of Municipal Corporations § 15.02 (3d ed. 1088). Id. The distinction between our case ......
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WEST BLUFF v. City of Albuquerque
...adopted by resolution, which "do[] not carry the weight of law, as do ordinances for municipalities." Id. (citing Williams v. City of Tucumcari, 31 N.M. 533, 249 P. 106 (1926)). But see W. Old Town Neighborhood Ass'n v. City of Albuquerque, 1996-NMCA-107, ¶ 12, 122 N.M. 495, 927 P.2d 529 (c......