(5 N. M. 289)

LEWIS v. BACA et al. ¿Supreme Court of New Mexico. March 2, 1889.)

EQUITY JURISDICTION-EXCEPTIONS.

stance of the contents of these lost papers are embraced in the record. Exceptions were taken, as stated in the supposed record, to the refusal of the court to give a series of instructions moved by the defendants, but the record also shows that the court, accord

1. An action upon a contract by which plaintiff delivered to defendant's intestate a number of sheep, to receive in return, at the expiration of a fixed period, a quantity of wool and an equal number of sheep, is not of an equitable nature, requiring to the memory of the presiding judge, ing relief by a court of chancery, though the accounts between the parties have been carelessly kept.

2. After such an action has been removed from the probate to the district court on appeal, it is triable de novo before a jury, and the fact that it is an appeal from the probate court does not deprive a party of his right to a jury trial. 3. Where, after a trial and before the record is made up for appeal, the papers are destroyed by fire, and, owing to the uncertainty of the judge's recollection as to the giving and refusal of instructions, the bill of exceptions does not show what occurred, the court will not, on appeal, undertake to settle a conflict between the memory of the trial judge and the counsel, but will refuse to examine any question relative to instructions.

Appeal from district court, Santa Fe county.

actually gave the first instruction moved, and the substance of the other rejected instructions, or embodied them in the general charge by the court of its own motion. The trial judge makes the following statement in the bill of exceptions and record: "My best impression is that the defendant's first instruction was given or included in the general charge; that the second instruction was given or included in the general charge, and not repeated; that the defendant's third and fifth instructions were marked Refused,' because substantially included in the general charge, and not repeated; that the fourth instruction was refused. The court charged the jury to judge of the credibility of the witnesses and of the weight of the evidence. My impres|sion is that the second instruction was more definite as to the time when limitation would begin to run, or when the cause of action accrued, or, if not, it was qualified by fix

Action on contract by Charles W. Lewis against Luciano Baca and Ramon Padilla, administrators, etc., of Joseph Lackey, deceased. Judgment for defendants in the probate court, and plaintiff appealed to the district court, where plaintiff recovered judg-ing the time. So long after the trial, I can ment, and defendants appeal.

Gildersleeve & Preston, for appellants. Catron, Knaebel & Clancy, for appellee.

HENDERSON, J. This suit was begun in the probate court of Santa Fe county by appellee, Lewis, to recover from the estate of Joseph Lackey the sum of $10,202.20. The claim is stated in the following form: "The Estate of Joseph Lackey, deceased, to Charles W. Lewis, Dr.

"For 2,500 improved ewes, delivered to said Lackey by said Lewis in April, 1882, on the condition that said Lackey was to pay therefor one-half of the increase and onehalf of the wool from said ewes, there being now due on said contract the following amounts, viz.: 3,868 merino ewes.. 870 yearling ewes.. 1,336 wethers...... 18,285 pounds of wool.

$5,802 00

870 00 1,336 00 2,194 20

$10,202 20" After taking proof in the probate court, the whole demand was rejected. Lewis thereupon appealed to the district court. He there recovered judgment for $5,250. The verdict of the jury contained the items on which the damages were assessed. The administrators of Lackey appealed.

The record before us is in such condition as to render it impossible to det rm.ne what was or what was not done in the court below, in the way of giving or refusing instructions. After the trial and before the record was filed in this court many of the papers in the case were accidentally destroyed by fire. No effort was made to substitute them in the court below as lost records. Counsel seem to have agreed that the sub

only give the impressions I have at this time." Again, the trial judge says in the record: "Though not deemed regular to sign bills of exception in this class of cases, I have done so at the request of counsel in this case. [Signed] R. A. REEVES, Judge First Judicial District."

The only instruction conceded to have been asked and refused, unless the substance of it was embraced in the general charge by the court, was the fourth, which is as follows: "If the jury believe that Lewis and Alderete, or any other witness on this trial, has testified to an untruth on any material point, you may then disregard the entire testimony of any such witness." The court below says in the bill of exceptions that the jury was instructed as to the credibility of the witnesses and the weight of the evidence. If any instruction whatever was given to the jury on this point, and not appearing in the record, we will presume it to have properly declared the law on the subject, and for that reason the refusal to charge as in the fourth instruction cannot be regarded as erroneous. The charge set out as having been given by the court of its own motion, for a like reason, cannot be inquired into, because the judge certifying the bill and record says the general charge of the court embraced matters not appearing in this record. This court on appeal will not receive any extrinsic evidence of matters that transpired at the trial dehors the record, to aid in the construction of the bill of exceptions. The only guide for this purpose is the bill itself, in connection with the record; which must be considered as presenting a distinct, substantive case, which, if defective in any material point, cannot be supplied by intendment of the court. Dunlop v. Munroe, 7

Cranch, 242; Spaulding v. Alford, 1 Pick. 37; | effect. Lackey was an old man, and made Pow. App. Proc. 240.

his home at the house of Lewis for many years. This may explain many things that otherwise would operate strongly against the bona fides and legal validity of the claim as asserted, and, as we think, proven, not only by Lewis himself, but at least in part by two other witnesses.

The second and only remaining question before us is whether the case should not have been tried by the court, not because it was essentially an equity proceeding, founded upon equitable elements, demanding the application of a chancery remedy, but because it was an appeal from the probate court, and, although triable de novo in the district court, the presiding judge should have heard the case as the probate judge did, and found the facts and made his declaration of law thereon. A trial de novo, as we take it, means a trial anew in the appellate tribunal, according to the usual or prescribed mode of procedure in other cases involving similar questions, whether of law or fact. It was a simple question of fact whether Lackey in his life-time received sheep upon a “partido,"

After the seal of the judge has been affixed to the bill, the truth of the statements therein contained can never thereafter be doubted. Saund. Pl. & Ev. p. 318. A bill of exceptions is founded on matter of law, or on a point of law arising out of a matter of fact not denied. 3 Bl. Comm. 372; 1 Saund. Pl. & Ev. pp. 316, 317. Every matter of fact arising upon exceptions on the subject of instructions is, to say the least, made doubtful by the manner in which the record comes before us. Appellants' counsel, by consent of opposing counsel, presented to the court below what they termed a "bill of exceptions," and that portion of the record deemed essential to a correct review of the case here, but the court made amendments the effect of which was to leave the whole record in doubt as to whether the memory of the court was correct or that of counsel in presenting the "substance of what occurred" at the trial. We will not undertake to settle the conflict, but will disregard every matter of fact contained in the bill, and not arising out of the record proper. This leaves for our consideration two ques-upon the terms claimed by the plaintiff. tions: These facts were triable by a jury on an origFirst, whether the cause could or should inal suit in that court. Did his election to have been tried as a case in chancery, as sue in the probate court in the first instance upon a bill filed in the usual course of prac-deprive him, when compelled to appeal to tice. The proceeding in the probate court is informal as to matters of pleading, and therefore the plaintiff was not bound to that degree of accuracy of statement required in a superior court of record. Claims, whether legal or equitable, so they can be established by proper evidence, and within the jurisdictional power of the probate court to entertain, may be asserted in that tribunal against the estates of deceased persons. This claim was based on a contract for the price or value of sheep and wool. Nothing is said, except that the amount claimed was due and unpaid. The facts would have justified an action in assumpsit in the district court, as the amount exceeded $100. We do not see any necessity for applying to a court of chancery for reiief, on the facts disclosed in this record. It was a share, or, as called in this record, "a partido contract" to accept a number of ewes, and pay a pound and a half of wool per annum for each sheep, and at the end of the "partido" to return a like number of ewes to the owner. The evidence

shows that 2,000 ewes were delivered on this

contract in 1882, and were worth at that time and at the date of the death of Lackey one dollar and a half per head. The lowest price of wool in any of the years between 1882 and 1886 was 12 cents per pound. The business dealings between Lewis and Lackey were conducted in a very loose and irregular manner. This may be explained upon the theory that Lewis believed Lackey intended to make his son Jesse his heir by executing a will. It seems he thought the declaration by Lackey of his intention to constitute his son his heir operated as a will to that

that court, of a right secured by law, had he sued in that tribunal? We think not. A right to a trial by jury in all cases at law, when the amount is above $20, is secured by the constitution of the United States and by the local statutes of New Mexico. This was a suit at law There is no error arising upon this record, and the judgment below is affirmed.

BRINKER, J., concurs.

(5 N. M. 183)

CHAVEZ v. LUNA, Collector, et al. (Supreme Court of New Mexico. Jan. 23, 1889.) LEGISLATURE-ORGANIZATION-REVIEW BY COURTS. in passing upon the validity of an act of the terriThe courts of New Mexico have no jurisdiction, torial legislature, to review the action of that body in respect to its organization, or the election and qualifications of its members.

ty.

Appeal from district court, Valencia coun

H. L. Warren, for appellant. Wm. Breeden, Atty. Gen., for appellees.

HENDERSON, J. The complainant, and appellant here, filed in the district court of Valencia county a bill to enjoin the collector, assessor, and board of county commissioners from levying and collecting from him any taxes on account of interest accruing on certain bonds. It is charged that a tax levy had been made, and that the defendant, as sheriff and collector of the county, was about to seize and sell his property unless the taxes levied to pay interest on the bonds were paid. He charges that the bonds are void, because

the pretended acts under which they were issued were never passed by the legislative assembly of this territory, and therefore of no legal validity. The acts assailed as void are entitled as follows: "An act to provide for the erection of a capitol building in the city of Santa Fe," approved March 29, 1884; and "An act authorizing the building of a penitentiary in the territory of New Mexico, and regulating its management," approved March 14, 1884; and a certain other act, entitled "An act to create the office of county assessor, and to provide for the election and qualification of such officer," approved April 3, 1884. A demurrer was interposed to the bill, and sustained, and, the complainant electing to stand upon his bill, it was dismissed, and the case brought here by appeal.

when William H. Keller, one of the original five, absented himself, and never again participated in the proceedings of the body; that on the 26th day of March one Jose Inocencio Valdez, of Colfax county, who had been elected to the office, appeared for the first time and took the oath of office, and thereafter participated in the proceedings of the body. It is further stated in the bill that eight persons alone composed the body at the several dates when the acts sought to be declared invalid were passed. The journal record kept by the council is referred to as evidence of the truth of the charges contained in the bill.

The position assumed in argument on behalf of the appellant is this: In order to give the pretended acts set forth in the bill the force and effect of valid laws, they must have been lawfully enacted by a legally constituted legislative assembly of this territory. It is contended that the full membership of the council consisted of 12 duly chosen councilmen, and that a less number than seven was not a quorum to do business for any purpose, or to determine any question concerning or affecting the organization of that branch of the legislative assembly. It is urged that five persons, not being a majority of the body, could not organize or pass upon the election and qualifications of other persons asserting claims to membership in the body; that the action taken by the five in seating Mr. Catron was void for want of power in them to do any valid act, and that for the same reason the action taken by the six, including Catron, in admitting McComas and Montoya, was for the like reason also void; that these steps taken in order to get a quorum were illegal, arbitrary, and void. It is further argued that executive recognition could not give to the action of a minority any validity whatever, as the act of congress of March 14, 1884, was, and was by congress intended to be, a limitation on the powers of the legislative assembly in the matter of determining the membership of the body; that the only power left to the council under the act of congress above referred to was the determination of valid contests pending before the body; and that the journal shows that there was neither a contest pending nor a quorum voting when the three last-named persons were admitted. Appellant cites a long list of cases in support of the jurisdiction of the court to entertain the bill and grant the relief prayed.

The bill is, in substance, the following: Complainant is a citizen and tax-payer of Valencia county, and the defendants are the sheriff and collector, county assessor, and county board of commissioners. The defend. ant Luna, as collector of taxes, had a warrant in his hands for the collection of the territorial and county taxes, including the taxes levied to pay the interest accruing on the bonds issued under the first two of the acts herein set forth, and was about to seize and sell complainant's property, and would do so unless the taxes were paid or the officer restrained by injunction from so doing. The bill further recites that by virtue of an act of Congress approved February 14, 1884, a session of the legislative assembly of New Mexico was held, commencing on the third Monday in February, 1884; that according to an act of congress approved June 19, 1878, the council of said legislative assembly was composed of twelve members; that by the act of February 14th, above referred to, the "members elect to the legislative assembly of the territory in November, 1882, and all vacancies legally filled since that time, if any, were declared to be legal members of the legislative assembly thereby authorized, subject to all legal contests; that on the day appointed for the convening of the said legislative assembly under the act aforesaid, only five members appeared and took the oath of office; that after the oath of office had been administered by the secretary of the territory to the said five members of the council, on motion of one of the five, one Thomas B. Catron was declared to be entitled to a seat in the body, who was thereupon admitted, and took the oath of office; that after the admission of Thomas B. Catron, on motion and without There is no doubt whatever about the power contest, Charles C. McComas and J. M. of the court to inquire into the facts attending Montoya were declared by the vote of the six the passage of a bill by the legislature of a members, including Mr. Catron, entitled to state, where the constitution of the state preseats in the body, who thereupon appeared scribes the mode to be observed by the legisand took the oath of office, and were admit-lature in passing bills. Where the constituted as members of the council; that said tion has been violated, the acts are void. In council was constituted or composed of the five persons first mentioned, as legally entitled to seats in the body, and Thomas B. Catron and Charles C. McComas and J. M. Montoya, until the 26th day of March, 1884,

Spangler v. Jacoby, 14 Ill. 297, the court said: "It is competent to show from the journals of either branch of the legislature that a particular act was not passed in the mode prescribed by the constitution, and thereby de

feat its operation altogether." To the same effect, see State v. McBride, 4 Mo. 303; Purdy v. People, 4 Hili, 384; Green v. Weller, 32 Miss. 651; Hensoldt v. Petersburg, 63 Ill. 157; Town of South Ottawa v. Perkins, 94 U. S. 267; Post v. Supervisors, 105 U. S. 668.

tion 7 of the organic act of this territory is as follows: "That the legislative power of the territory shall extend to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of this act. But no law shall be passed interfering with the primary disposal of the soil. No tax shall be imposed upon the property of the United States, nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents. All the laws passed by the legislative assembly and governor shall be submitted to the congress of the United States, and, if disapproved, shall be null and of no

The rule of law, however, declared in the foregoing class of cases does not apply to the state of facts presented by this bill. The question here is not one of mere mode of passage of the acts assailed. There was a quorum present and voting for the several bills at the date of their passage through the council. The only question, therefore, is one of organization of the body. Can the courts entertain a bill to review the action of the legis-effect." lature in the manner of its organization or the election and qualifications of its members? In the case of People v. Mahaney, 13 Mich. 481, COOLEY, J., said: "As the court are bound judicially to take notice of what the law is, we have no doubt it is our right as well as our duty to take notice, not only of the printed | statute books, but also of the journals of the two houses, to enable us to determine whether all the constitutional requisites to the validity of a statute have been complied with. * * * But although the courts must take judicial notice of legislative action so far as it affects the validity of statutes, they have no such power as respects the facts attending the election of the several members; and it remains to be seen whether we can notice those facts, even after they have been spread upon the legislative journals, and make them the basis of judgments, the retrospective effect of which would be to unseat members of a body long since adjourned, and to annul its action by declaring the votes of such members illegal and invalid." And, further on in the same opinion, it is said: "It is a sufficient answer to this argument that, while the constitution has conferred the general judicial power of the state upon the courts and officers specified, there are certain powers of a judicial nature which, by the

same instrument, are expressly conferred upon other bodies or officers, and among them is the power to judge of the qualifications, elections, and returns of members of the legislature. The terms employed clearly show that each house, in deciding, acts in a judicial capacity, and there is no clause in the constitution which empowers this or any other court to review their action."

General superintending control over "inferior courts" possessed by the district and supreme courts in this territory does not extend to the judicial action of the legislative houses in the case where it has been deemed necessary to confer such powers upon them with a view to enable them to perfect their organization and perform their legislative duties. It may, however, be said that no such judicial power has been delegated by congress to the territorial legislature in express terms, as is done usually by the constitutions of the states, and that, therefore, the rules of decision in the states do not apply here. Sec

Whether in these general terms it was intended by congress to confer legislative powers upon the legislative assembly of New Mexico, with the usual and ordinary incidental judicial power to determine finally the election, qualification, and return of the members, we do not decide. It is sufficient to say that by the very terms of the organic act above quoted "all of the laws passed by the legisla tive assembly and governor shall be submitted to the congress of the United States, and, if disapproved, shall be null and of no effect." We must presume that in obedience to the fundamental law of the territory these acts, together with all others passed at the session of 1884, were submitted to congress; and, there being nothing to show that they were disapproved, they have received the passive assent of congress, and have been in that way approved. Congress has plenary power over the subject, and, being approved by it, there is nothing upon which to ground the jurisdiction of the courts over the subject sought to be reviewed.

LONG, C. J., and REEVES, J., concur.

(5 N. M. 327)

LYONS et al. v. Woods, Sheriff, et al.

(Supreme Court of New Mexico. April 2, 1889.)

Appeal from district court, Grant county. Wm. B. Childers, for appellants. Wm. Breeden, Atty. Gen., for appellees.

LONG, C. J. On the authority of Chavez v. Luna, ante, 344, (decided at the January term, 1889,) the judgment of the court below in this cause is affirmed.

BRINKER, J., (dissenting.) On the 27th day of August, 1885, the complainants filed in the court below their bill of complaint against the defendants, as follows:

"Your orators, Thomas Lyons and Angus Campbell, partners doing business under the firm name and style of Lyons & Campbell, Cornelius Bennett, Martin W. Bremen, and Joseph F. Bennett, all residents and citizens of the town of Silver City, in the county of Grant and territory of New Mexico, and William J. Betterton, Charles L. Betterton, and Calvin Castlin, partners doing business at the town of Deming, in said county and

"Your orators further show that these items go to make up the sums total which the said sheriff and ex officio collector is about to collect from your orators, respectively, as the amount of taxation due from each for various purposes pretended 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. 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

territory, under the firm name and style of | capitol building tax, $7.75. Betterton, Son Betterton, Son & Co., in behalf of themselves, & Co., total assessable property, $11,285,and all other tax-payers of said Grant county penitentiary tax, $5.64; capitol building tax, who shall come in and contribute to the ex-$9.03. penses of this suit, do bring this their bill of complaint against James B. Woods, sheriff and ex officio collector of taxes within and for said county, and Richard Hudson, assessor of said county of Grant, and Angus Campbell, John Classen, and Granville N. Wood, constituting the board of county commissioners of the said county of Grant. Your orators represent that the defendant James B. Woods is sheriff and ex officio collector of taxes; that the defendant Richard Hudson is assessor; and defendants Angus Campbell and John Classen and Granville N. Wood are county commissioners, and constitute the board of county commissioners of the county of Grant, in the territory of New Mexico; and that all of said officers are residents and citizens of said county of Grant. And thereupon your orators complain and say that each of your orators is a tax-payer within said county, and whose property is referred to and described in a certain list and assessment roll now in the hands of said defendant James B. Woods, prepared from assessments claimed to have been regularly made by the assessor of said Grant county, compiled under the direction of the board of county commissioners of said county, approved by said board, July 10, 1885, and received by said James B. Woods, sheriff and collector as aforesaid, on the 13th day of Au-in the same manner as other territorial taxes gust, 1885, which said list, under the laws of are levied and collected. Your orators furthe territory of New Mexico, is the warrant ther represent that the said pretended special and evidence of authority under and by vir- taxes provided for under said pretended acts tue of which he, the said sheriff and ex officio of the legislative assembly have been ascollector, is about to collect and is collecting sessed by the tax assessor of the said county the various sums of money making up the of Grant, passed upon by the board of county several items of taxation as therein set forth. commissioners of said county sitting as a That among the items of taxation in said tax- board of equalization as required by law, and list and assessment roll (being for this pres-are now on the tax-lists in the hands of the ent year 1885) set forth, and upon which said defendant Woods, as collector of the each of your orators is therein noted as being county of Grant, which said tax-lists in the taxed, are the two items respectively de- hands of the said collector have attached to scribed in said list as Penitentiary Bonds' them the warrant provided by law requiring and Capitol Building Bonds,' and that the said collector to collect the taxes by said lists sums of money set opposite the names of or rolls shown to have been levied, and that each of your orators, and in the columns copies of said lists or rolls are now on file in headed, respectively, Penitentiary Bonds,' the probate clerk's office of said county of and Capitol Building Bonds,' and levied as Grant, and that all the steps required by law taxation upon your orators and each of them for the proper levy of taxes, with reference for purposes partially described by said col- thereto, have been taken, so that the said umn headings, and that the several assess-lists and rolls in the hands of said defendant, ments of property of your orators respective- the collector as aforesaid, of said county of ly, and the amounts severally taxed thereon Grant, and the copies thereof in the said profor said partially described purposes, are as bate clerk's office, on their face and by virfollows, to-wit: Lyons & Campbell, total tue of said pretended acts of the said legisassessable property, $158,310,-penitentiary lative assembly aforesaid, and the general tax, $79.15; capitol building tax, $126.64. revenue law of the territory, are a lien upon Martin W. Bremen, total assessable property, the real and personal property of your ora$19,120,-penitentiary tax, $9.41; capitol building tax, $15.06. Cornelius Bennett, total assessable property, $6,900, — penitentiary tax, $3.30; capitol building tax, $5.28. Joseph F. Bennett, total assessable property, $7,490,-penitentiary tax, $3.60;

tors in the 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, has the force and effect of personal