Lyons v. Woods
This was a bill filed by James Lyons and others in the district court of the third judicial district of the territory of New Mexico for the county of Grant, August 27, 1885, against Woods and others, being the collector of taxes, the assessor, and the county commissioners for that county, averring that complainants were taxpayers within said county, whose property was referred to and described in the tax list and assessment roll in the hands of defendant Woods, collector, which list and roll were prepared from assessments made by the assessor of Grant county, compiled under the direction of the board of county commissioners, and approved by that board, and received by Woods, as collector, August 13, 1885, said list and roll being, under the laws of the territory, the warrant under and by virtue of which the collector was about to collect, and was collecting, the various sums of money making up the several items of taxation as therein set forth. That among the items of taxation in said tax list and assessment roll for 1885, and upon which each of complainants was therin noted as being taxed, were two items respectively described in said list as 'penitentiary taxes' and 'capitol building taxes,' set down in columns, headed 'Penitentiary Bonds' and 'Capitol Building Bonds,' and levied as taxes upon complainants, and each of them, for the purposes described by said column heading.

The bill then set forth the several assessments of complainants' property, respectively, and the amounts severally taxed thereon, and alleged that the items described went to make up the sums total which the collector was about to collect from complainants, respectively, as the amount of taxes due 'from each for various purposes presented to be warranted by law and pretended to be due and payable for and during the year 1885; that the amounts of money thus in said list pretended to be due and payable upon account of penitentiary bonds and upon account of capitol building bonds and as taxation so levied for and on account of said items are so claimed and levied and included in said list by virtue and under authority of pretended acts of the legislative assembly of said territory pretended to have been approved by the governor of said territory, which said pretended acts so pretended to have been approved are entitled and described, respectively, as follows: 'An act authorizing the building of a penitentiary in the territory of New Mexico, and regulating its management,' approved March 14, 1884, and 'An act to provide for the erection of a capitol building in the city of Santa Fe.' approved March 29, 1884.'

The bill thus continued: 'Your orators further represent that said pretended taxes under the pretended acts of the said legislative assembly aforesaid, and by the terms thereof, are to be assessed and levied in the same manner as other territorial taxes are levied and collected. Your orators further represent that the said pretended special taxes provided for under said pretended acts of the legislative assembly have been assessed by the tax assessor of the said county of Grant, passed upon by the board of county commissioners of said county sitting as a board of equalization as required by law, and are now on the tax lists in the hands of said defendant Woods, as collector of county of Grant, which said tax lists in the hands of said collector have attached to them the warrant provided by law requiring said collector to collect the taxes by said lists or rolls shown to have been levied; and that copies of said lists or rolls are now on file in the probate clerk's office of said county of Grant; and that all the steps required by law for the proper levy of taxes with reference thereto have been taken, so that the said lists and rolls in the hands of said defendant, the collector, as aforesaid, of said county of Grant, and the copies thereof in the said probate clerk's office, on their face, and by virtue of said pretended acts of the said legislative assembly aforesaid and the general revenue law of the territory, are a lien upon the real and personal property of your orators in said county of Grant, and are a cloud upon the title of your orators to their property; and that said taxation pretended to have been assessed under invalid and pretended laws of said territory, as hereinafter alleged, have the force and effect of personal judgment against your orators, and are liens upon their property as aforesaid, and said lists or rolls are by law given the effect of executions against the property of your orators so assessed.

'Your orators further represent that said pretended acts of the legislative assembly entitled, as aforesaid, 'An act authorizing the building of a penitentiary in the territory of New Mexico, and regulating its management,' approved March 14, 1884, and 'An act to provide for the erection of a capitol building in the city of Santa Fe,' approved March 29, 1884, under which said assessment of taxation is made, and by virtue of which said pretended liens against your orators' property are asserted, and by virtue of which said pretended assessment rolls are claimed to have the effect of executions in the hands of the said defendant as sheriff and ex officio collector of said county of Grant, are not, and never have become, valid laws of said territory of New Mexico, for the reason that the same never were introduced and passed through the council of said legislative assembly when a legal quorum of said council was present and participating in the proceedings thereof, and for the reason that a majority of a legal quorum of said council never voted in favor of said pretended laws so as to legally the same through said body; and your orators charge the facts to be that an act of congress of the United States of America was passed and approved on the 14th day of February, 1884, and thereby became a law, which said act of congress, among other things, provided that a session of the legislative assembly of said territory should be held, and said assembly convene, on the third Monday of February, A. D. 1884; and said act of congress declared that the members elected to the territorial legislature of said territory in November, 1882, and all vacancies legally filled since that time, if any, should be the legal members of the legislature by said act authorized, subject to all valid contest.

'Your orators further state that in accordance with said act of congress a pretended session of said legislative assembly was held, commencing on the third Monday of February, A. D. 1884.

'Your orators further state the fact to be, and that the same so appears by the published journal of the proceedings of said pretended sessions of the council of said legislative assembly, that upon the convening of said council on the said third Monday in February, A. D. 1884, only five members appeared who had regularly received certificates of election, and were so shown to be elected by the election returns of the said election held in November, A. D. 1882, to have been elected members of said council, to wit, Jose Armijo y Vigil, of Socorro county; Pablo Gallegos, of Rio Arribi county; W. H. Keller and Andrew Sena, of San Miguel county; and John A. Miller, of Dona Ana, Lincoln, and Grant counties; and that thereupon the said five persons qualified as members of said council by taking the oath of office required by law and signing the roll of members.

'Your orators further allege that by law the said council is composed of twelve members, and that seven thereof are necessary to constitute a legal quorum for the transaction of business.

'Your orators further allege that after said five members had been sworn in, as aforesaid, a motion was unanimously adopted by the vote of said five members only, and no more, that Thomas B. Catron, of Santa Fe county, be declared entitled prima facie to the seat from Santa Fe county, and that thereupon the said Thomas B. Catron took the oath of office as a member of said council, signed its roll, and thereafter acted as a member thereof.

'And your orators further allege that said Catron's seat was claimed by Henry L. Warren, of Santa Fe county, and that said Warren held a certificate of election as a member of said council from Santa Fe county, which said certificate was the first certificate of election issued by the county commissioners as evidence of the election of members of said council from said county at said election held in said month of November, A. D. 1882; but that afterwards said county commissioners, acting under protest, and compelled by an order of the district court in said county of Santa Fe, issued a certificate of election to said Thomas B. Catron.

'Your orators further allege that they are not informed as to whom the election returns on file in the office of the secretary of the territory show to have been elected as a member of said council from the said county of Santa Fe at said election.

'Your orators further allege that afterwards, while said council was composed of the said five persons as aforesaid and the said Thomas B. Catron, and no others, a motion was therein introduced by the said John A. Miller to the effect that Charles C. McComas and Jose Manuel Montoya be declared entitled prima facie to the seats from Bernalillo county, subject to the right of contest; and that said motion was unanimously adopted by the vote of the said six members, and no more, who were then acting, as aforesaid, as members of said council.

'Your orators further allege that said Charles C. McComas and Jose M. Montoya held no certificates of election whatever as members of said body, but, on the contrary, Charles Montaldo and Francisco Perea held the certificates of election to the seats therein of the members from said county of Bernalillo, and that all the election returns of the election held in said month of November, A. D. 1882, both in the office of the county commissioners, and in that of the secretary of said territory, showed and still show that said Charles Montaldo and Francisco Perea received a majority of the votes cast in said county at said election for members of the council from said county, and that said Charles C. McComas and Jose M. Montoya did not receive a majority of said votes so cast, and were not duly-elected members of said council.

'Your orators further allege that the said Charles C. McComas, after the said election in November, A. D. 1882, had commenced proceedings as a contestant for the seat of said Charles Montaldo as a member in said council from Bernalillo county, and served his notice of contest on said Montaldo, and taken testimony under said notice of contest; and that said Jose M. Montoya had so commenced contest proceedings against the said Francisco Perea for the other seat of the member from said county of Bernalillo, and that said notice of contest so served and testimony so taken were duly filed with the secretary of the territory, and by him were transmitted and delivered to the said pretended council so organized as aforesaid, and at the time of the proceedings aforesaid the said papers relating to said contest were in possession of the said secretary; and that long afterwards, to wit, on the 3d day of April, A. D. 1884, the committee on elections of said pretended council reported to said body that the said contested election cases had been referred to them, and that they found that said McComas and Montoya were entitled to the seats then held by them in said body, which said reports are stated by the journal published by said body to have been on said day adopted.

'Your orators further allege that the said six persons aforesaid and the said McComas and Montoya constituted said council until on or about the 25th day of March, A. D. 1884, when the said W. H. Kellar absented himself from said body, and never afterwards participated in its proceedings.

'And your orators further allege that after the said Kellar had ceased to act with said body, J. Innocente Valdez, who was elected a member of the council from Colfax and Mora counties, took the oath of office, and participated in the proceedings; but your orators allege that at no time during the pretended session of said body did more than six persons, including the said Thomas B. Catron, take part in its proceedings, except the said Charles C. McComas and J. M. Montoya, unlawfully and arbitrarily seated as aforesaid.

'And your orators further allege that, including the said McComas, Montoya, and Catron, there were just eight members of said body present and voting when the said bill aforesaid, entitled 'An act authorizing the building of a penitentiary in the territory of New Mexico, and regulating the management,' was introduced and passed through its several readings in said body; that said last-mentioned bill, by the journal of said pretended council, is alleged to have passed, under a suspension of the rules of said council, on the 14th day of March, A. D. 1884, and which said journal shows that there were present on said day the said Jose Armijo y Vigil, T. B. Catron, Pablo Gallegos, W. H. Kellar, and McComas, Miller, Montoya, and Sena, and no more, and that said journal does not show that said lastmentioned bill was ever passed on any other day, and that on said day it had never been determined by any legal quorum or by any other way, except by the illegal and arbitrary action of the said six persons aforesaid, that said McComas and Montoya were entitled to said seats in said body.

'And your orators further allege that, including the said McComas, Montoya, and Catron, there were just eight members of said body present and voting when said bill aforesaid, entitled 'An act to provide for the erection of a capitol building in the city of Santa Fe,' was introduced and passed through its several readings in said body; that said last-mentioned bill, by the journal of said body, is alleged to have passed, under a suspension of the rules, on the 26th day of March, A. D. 1884, and which said journal shows there were present on said day the said Jose Armijo y Vigil, T. B. Catron, and McComas, Montoya, Gallegos, Sena, Miller, and Valdez, and no more, and that of these Messrs. Catron, McComas, Montoya, Gallegos, Sena, and Armijo y Vigil voted in favor of the passage of said lastmentioned bill, while Messrs. Miller and Valdez voted against the passage of the same; and that said journal does not show that said last-mentioned bill was ever passed on any other day, and that on said day it had never been determined by any legal quorum, or by any other way, except by the illegal and arbitrary action of the six persons aforesaid, that said McComas and Montoya were lawfully entitled to seats in said body.

'Your orators further represent that said pretended acts of the legislative assembly aforesaid, having been approved by the governor's signature, attached thereto, and filed in the office of the secretary of the territory, and certified by said secretary as valid laws, legally passed by the legislative assembly of the territory, and that said acts have been incorporated and published in volumes of the laws of the territory, so that on their face they seem to be valid laws, so as to give apparent validity to the assessment of said taxation and to the lien on the property of your orators aforesaid, when in truth and fact the said pretended acts of the said legislative assembly were never legally passed by said legislative assembly, and are absolutely null and void; and that by reason of the premises the said defendant, collector as aforesaid, has acquired and can acquire no authority in law whatever for exacting and collecting the said pretended taxes from your orators, either by virtue of said pretended acts of the legislative assembly or the steps taken as aforesaid thereunder.' The bill then set up various grounds of equity interposition, not necessary to be repeated, and prayed an injunction and for general relief. To this bill a general demurrer was filed by the defendants, and sustained, and, the complainants declining to plead further, the bill was dismissed for want of equity, with costs, December 4, 1885, whereupon complainants prayed an appeal to the supreme court of the territory, by which the decree was affirmed on the authority of Chavez v. Luna, 21 Pac. 344, Brinker, J., dissenting (Id. 346). The case was thereupon brought by appeal to this court.

W. B. Childers, for appellants.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court. 

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