Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1892-03-19
AN UNLAWFUL PROCEEDING.
A Bold Attempt of the Santa Fo City
Council to Gain Control Of Irri-
cation Privileges,
Fall Text of the District Attorney :
Opinion of that Water Ordinance
A special Act that Governs
Precinct MayOrdOmOs.

A special Act that Governs
Precinct MayOrdOmOs.
Appended is the full text OF the opinion
OF District Attorney TNitchell relative tc
the irrigation ordinance adopted by The
city council at its session on Tuesday
last:
Messrs Hipolto Vigil and Juan b. Lucero, jus
tees OF the peace, santa Fe county New Mex
leo.
SANTA FEE, March Is, '92.-Dear Sirs
You have asked me for my opinion rs to
whether or not the city of Santa Ee has
the power through its city council to ap.
point a person to the office of superinten-
dent Of the distribution Of water, running
in the acequlas on the north and soLth
sides of the Rio Santa t'e, within the cor
porate limits OF the city.
NV opinion is, after careful considera.
ton OF the matter, that the ely cOunc!I
has not the power. Presumably the az
ton of the city council in passing an or
diuanCe upon this sui CT was based upon
the wording of the 72d sub division Of
section 1922 of the Compiled Laws Of
1854, which Is as follows:
"They shall have power to construct
public wells, cisterns and reservoirs
in the streets and other public
and private places within the city
or town, or beyond the limits
thereof, for the purpose OF supplying the
same with water to provide proper pumps
and conducting pipes or bitches, to regul.
ate the distribution Of water for irrigation
and other purposes, and TO levy an equit-
able and just tax upon all consumers OF
water, for the purpose OF defraylng the
expenses OF snch improvements"
This section is part OF an act OF the
26th legislative assembly, entitled "Au
act to incorporate cities and towns" APP
law applicable to the creation and main
tenance of municipal corporations in the
territory of New Mexico. BY special
act of the legislative assembly OF the
territory of New Mexico, approved Feb
ruary II, 1880, entitled can act special
to the county of Santa Fe," it is made
the duty Of the Justices of the peace of
precincts Nos. and 4, annually, to call
and hold on the first Monday of March
of each year an election to appoint
mayordomos or distributors o. water on
the north and south sides OF the Santa
Fe rivers, at which election, the owners,
renters and partitloners of lands irrigated
by the water of the said river, in precincts
Nos. 3, 4 and 5, of said county, shall vote,
and it is the duty OF the said mayordomos
80 elected to comply with all the laws of
this territory governing the maintenance
and flow Of water in aCeQuias. This is a
law special to the county Of Santa Fe and
to the precincts mentioned therein. This
law has never been repealed. The per
sons elected under this statute as mayor
domos of the acequias on the north and
south sides of the Santa Fe river, on the
first Monday of March, 1892, are the
only persons in whom is vested authority
to manage and control the distribution
OF water for the purpose of irrigation
in the two main aceguias taken out of the
Rio Santa Fe; as to which law shorld
govern, the special or the general statute,
it seems to me of easy solution. Ii is
easily decided by the application of the
universal rule Of statutory construction,
that general law which does not in it's
terms; necessarily repeal prior special
laws affecting the same subject, must
yield TO those special laws in the respect
III which they have specific application
according to their teams, just as much
as if the provisions of the special laws
had been enacted as exceptions to the
general laws. There is no repeating
clause to the act under which the city OF
Santa Fe is incorporated. A general
statute will not ordinarily repeaI bv
IN ,iinotinp y,ottin,lor la,a1 OBJ.
and private acts and local customs
affecting only certain localities in their
rights, privileges or property, are IN
affected by a general enactment. The
special act governing the election of
mayordomos in precincts 8, 4 and 5 is
purely local, and being thus distinct
and special in Character the rule applies
that a general law applicable to the entire
territory will not modify or repeal in
whole or in part a special act unless by
express words. (State vs. Douglass,
4 Vroom, 1868; stale VS.. Hills, Vroom,
III.
A peculiarly instructive case upon this
point ls that of Goldson vs.. Buck, in
which Lord Ellenborough delivered the
opinion, found in 10th East at page 376 |
This rule of construction has even
clearer and more certain application to
general laws which do not act exclusive |
" on an existing i'm nediate general sab |
ject, but which contemplate the mere !
power Of the coming into being of nu-
merons general subjects, coming within
the scope and purview OF the policy and
intent Of the general laws which provide |
tor the future Incorporation OF bodies |
polite. The statutory provision which |
the city has attempted to invoke is gen
eral provision and was enacted as a rule :
Tor the guidance of the people in the
creation of future municipal corporations. |
1t gives the people no control over prior
special municipal charters-much the less |
does it give the people such control over
prior special law 8 enacted for the admin
istratlon Of public affairs in specific locali
ties.
Il seems to me that any honest man,
b aving desire to follow the principles OF I
rectitude and integrity, can come to no
other than the above.
But there is another matter which seems
to me to absolutely control in the con-
struction 10 be placed upon this I'D sub
division Of section 1922. In my opinion
this subdivision does not contemplate the
granting to municipalities of the power
claimed by the city, even in localities
" hich are not affected by prior special
law, regarding the distribution Of water
for the pnrnOapa of jrripation A nprson