Albuquerque evening citizen. [volume] (Albuquerque, N.M.) 1905-1907, 1905-10-18
COURT RENDERS
IMPORTANT OPINIONS
Judge Abbott Refuses to In
~terfere in Treasurer Office
Squabble.
OPINION AGAINST COMMISSIONERS

Late yesterday afternoon Judge Ira
A. Abbott fled an order declining to
grant the petition Of counsel for f. A.
Hubbell, asking Tor an Injunction
against Justo II. Armijo, to restrain
him from taking possession of The oil
flee OF the county treasurer in the
court house. and asking that said F.
"A, Hubbeil be allowed To ~peaceably
remove certain records from the office
as pc sonal property. BY the order
Just filed, Armijo is left free to enter
the vault in the treasurer's office, and
gives hin fuI possession of the OF
flee.
Today Judge Abbott handed down
an opinion in the case o. w. b. Chill
ders, ct al, VS.. the board OF county
commissioners of Bernalillo county,
in which the plaintiffs asked that an
injunction be granted restraining
the commissioners from borrowing
money to carry on the affairs of the
county and which injunction vas
granted. The court also handed down
an opinion in the case of F. A. Hub
bell VS.. the board Of county commits
sioners, in which Hubbell asked for
an injunction against the commits
sioners to restrain them from enforc-
ing their order placing Justo r. Ar
milo in possession of the treasurer's
Office in the court house, but which pc
tition was denied by Judge Abbott
yesterday.
; The written opinions in the two
cases are as follows:
Opinion in Taxpayers Suit.
Territory of New Mexico, in the Dis
trict court, Bernalillo county.
w. b. Childers, ct al,
VS.. No. 6,S1S.
Board of County Commissioners Of
Bernalillo County, ct ais.
OPINION.
In this cause, the plaintiffs, as tax
payers, call in question the validity of
the act of the county commission
ers in borrowing money for the nee
essary expenses of the present (Sep-
tember) term of the district court of
said county.
The defendants justify on the ground
of necessity, alleging that otherwise
it would not have been possible for
the reasons stated in their answer to
hold said term OF court, and further
claiming that the plaintiffs as tax pay
ers, cannot maintain this action.
1t is not claimed that the power to
borrow money is conferred on county
commissioners in this territory in eX-
press terms, but that it exists by neces-
sary inference from the statutes defin-
ing their powers and duties. These pow
ers are mainly enumerated and de-
scribed in Section 664 of the Com
piled Laws of 1897, id no less than ff-
Tnan nNVH . am hnD1I hn
that in so wide a range of subjects the
power to borrow money failed of men
tion because of inadvertence or mis-
take. 1t is much more probable that
it was considered and purposely omit
ted. So recently as hast winter it was
apparently thought necessary that the
county commissioners of this county
should have authority from the legisla-
tive assembly to borrow money for
the construction of a dyke to pro-
tect the city Of Albuquerque from the
threatened inundation by the Rio
Grande. Certainly, that was a case
of greater necessity than that of hold
ing a term of court at a particular
time.
Power so important and liable to
abuse as that of public officials to
borrow money should not be estab-
lished b ythe courts on anything less
than direct constitutional or statutory
provisions or absolutely necessary de-
ductions from them. Even if by that
rule of construction it could be held
that county commissioners in New
Mexico could borrow money in GER
tain emergencies, such a case is not
in my opinion presented by the an
Swer in this ause. II is highly i'm
portant that the courts should be held,
but still more important that they
should not be held in violation of the
laws they are designed to administer.
If it is not easy for any citizen to
adopt that view when officials in whose
competence and honesty he has faith,
are in power, and would do the bor-
rowing, he should consider whether /
he would be content to have the
same power exercised at some future
time by officials whom he should be-
lieve to be incompetent or corrupt.
Besides, the statute provisions in
relation to court funds, appear to
have been very carefully framed to
limit expenditures for court purposes
10 money actually in hand from taxa
ton. It was, too, the plain intent of
the Bateman act, so called. to pre-
vent further expenditures in excess of
current taxation, by county and other
officers.
The plaintiffs, as tax payers, are en-
titled to maintain the action on the au-
thority of Catron VS.. board of county
commissioners, etc, 5 n. NJ, p. 2O3,
and Champion VS.. Zabriskie, 1O1 u. s., |
p. COG.
(Signed) IRA -. ABBOTT,
Judge.