State Ex Rel. Dow v. Graham , 33 N.M. 504 ( 1928 )

The argument on this motion is directed to the single point that "the court of equity had no jurisdiction to entertain this cause of action." It is presented under three propositions, namely:

"A. A county is an involuntary political or civil division of the state, subject at all times to control by the Legislature, owning no property in a private or proprietary capacity.

"B. Courts will not interfere by injunction with the exercise of legislative or political functions.

"C. Quo warranto is the exclusive remedy to test the legality of the organization of Rio Grande county."

[4] We cannot admit the correctness of proposition A, as stated. Counties are, no doubt, in general, subject to legislative control. But such control is in turn subject to constitutional limitation. The authorities cited by appellees do not question this. In New Mexico, the Legislature may not, by local or special law, regulate county affairs, locate or change county seats, or change county lines except in creating new counties. Const. art. 4, § 24.

It will not do, therefore, to say that counties are completely subject to legislative control.

[5] Proposition B is evidently taken from Frantz v. Autry,18 Okla. 561, 91 P. 193. It is found in the opinion by Haines, J. The Oklahoma Territorial Supreme Court was divided, and several elaborate opinions were filed. We find nothing in the case, nor in the authorities there cited, which seems to us to conflict with what we have held. Whether the abolishing of a county and the disposition of its property is a purely political question under the control of the Legislature, and not a matter of judicial cognizance, depends, as does the former proposition, upon the Constitution. Since we find that these matters have not been left to legislative regulation by local or special law, the property rights here involved would not seem to be mere political rights, but rather to be legal rights which the courts are bound to recognize.

Proposition C was presented originally and disposed of. We decided merely that a remedy by quo warranto to accrue only in the future did not bar jurisdiction in equity. To bring the case within the rule of Tularosa Ditch Case, 16 N.M. 750, 120 P. 301, and State ex rel. Northwestern Colonization Improvement Co. of Chihuahua v. Huller, 23 N.M. 306, 168 P. 528, 1 A.L.R. 170, appellees urged that, since the Legislature had made complete provision, and nothing but the lapse of time was to intervene, Rio Grande county was to be treated as though it were already in possession of its rights as a county and in possession of the property and territory in dispute. We considered that it was rather to be deemed, for the purposes of the argument, as a county in process of formation. The Tennessee cases were cited as illustrative of the distinction between prohibiting and undoing acts — the former the function of injunction. A more recent illustration is found in Oklahoma jurisprudence. It is stated thus in Specht v. Joint School Dist., 97 Okla. 202, 223 P. 386:

"If the action was for the purpose of determining the question of the validity of an existing organization, then quo warranto was the proper remedy. * * * If the action was to prevent the superintendent of public instruction from doing some illegal act in furthering the organization of the consolidated district, then injunction was the proper remedy."

In that case, finding that the consolidated district was still in process of creation, injunction was held to lie. In Shore v. Board of Education, 97 Okla. 273, 223 P. 867, the action was to enjoin issuance of bonds on the ground that the district had not been legally organized, and, since it was actually functioning under color of law, it was held that quo warranto was the sole remedy.

In the case at bar the so-called new county was not functioning, nor was it in possession of the property in question. Certain individuals, however, threatened acts in furtherance of the statute. The very threat is injurious and unsettling. The situation can be relieved only by a prompt decision of the only legal question involved, the constitutionality of the statute. The public interest and convenience are properly to be considered in determining whether equity should assume jurisdiction. Spelling on Injunctions and Other Extraordinary Remedies (2d Ed.) § 620; Jaramillo v. State,32 N.M. 20, 250 P. 729; Board of Commissioners of Guadalupe County v. Anaya, 31 N.M. 182, 242 P. 335. We do not think that equity can deny the only adequate and immediately available relief.

We find no merit in the motion for rehearing, and it will be denied.

It is so ordered.

BICKLEY, J., concurs.