Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1902-07-19
CITY ATTORNEYS OPINION.
The City Council Acted Illegally at lis Session on
Monday Evening.

Hon. b. NJ. Read, attorney for tn
city of Santa Fe, has given the New
Mexican the following official opinion
for publications:
Santa Fe, N. NJ, July II, 1902.
Hon. Leo Hersch, Canuto Alarid, ant
Octaviano Rodriguez, members o
City Council, City of Santa I'e.
Sirs: Your favor of this date in whic1
you ask for my legal opinion on the
following points; a. Has the city au.
thority to appropriate money for spe-
cial purposes? (2) Has the city auth
ority to discriminate in the paying OF
accounts or must all creditors be treat
ed alike? go Has the city any auth
ority to create a fund by mere reso-
luton? (D Does a mere resolution re-
peal an ordinance? (5) Have we an or
dinance providing how moneys derived
from land options fines, etc, be dis
posed of? to hand.
l infer from the language of your
questions that you have been prompted
to ask these questions by the action of
the council at its last meeting.
On the afternoon of the day of the
last meeting of the city council, the 14th
instant. member of the council came
into my office and asked me whether
moneys derived from fines, licenses and
land options could be segregated from
the general fund and applied to the
payments of salaries of officers, and
thus create a salary fund. L examined
the law in his presence and told him
that according to my understanding of
the law it could not be done. Such was
my opinion then and l am of the same
opinion yet. This being an official
opinion, asked by city officials, / shall
give my reasons for holding as I do.
The city council has no authority to
create special fund except from mon
eys collected for any one year from
assessments made for the special pur-
pose.
Sec. 305, Comp. L. 1897.
BY an ordinance approved May II,
1901, it is provided that moneys derived
from land options shall be covered in
to the general fund of the municipali-
ty."
See minutes of council, Book B, p. 224.
This ordinance has not been repealed.
An ordinance can only be amended,
or repealed by an ordinance
and not by a mere resolution so that
even if the council had the authority to
money from the general
fund for any special purpose it can on
ly be done by properly drawn, ap-
proved and published ordinance.
"a resolution is an order of the coun-
Gil of special and temporary charac-
ter, an ordinance prescribes perma-
nent rule of conduct or government"
Blanchard " Bissell, II Ohio st. SO,
1903.
But if the organic law requires an
act to be done by ordinance, or if such
requirement is implied by necessary in
ference a resolution is not sufficient"
Newman V. Emporia, 32 Kan. 456.
Hunt V. Lambertville, As N. J. l.. 279.
granting authority to build a sewer was
set aside.
AS to the discriminate ton of payments,
neither counties nor municipalities
have any authority to prefer one cred
itor to another. officers as well as per-
sons who furnish materials, etc, to
or municipalities are creditors
in the eyes of the law and must all be
treated ;.iike, that is if there is not
enough money to pay them in full each
shall receive his pro rata share of the
money collected, every three months.
Sec. 3O1, Comp. Laws 1897.
I have no doubts but that the coun-
I'll will at it's next meeting rectify the
error committed at it's last meeting, if
he matter is properly looked into. 1t
,an be done by having the parties who
'eceived +the money reimburse it into
he city fund and then let the whole |
amount be pro rated among city Off
.ials and city creditors. OF course this |
an only be done by all the officials and |
agreeing to return the money. |
, for one, will be only too glad to do
10 in order to enable the council to ex-
ricate itself from the awkward situa-
ion it has inadvertently placed itself
Respectfully,
BENJAMIN M. READ,
City Attorney.
G,,hanr1frA l<&v> A11n AYouy hAvfron