Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1907-08-23

answer by original action in the SUI
preme Court of the United States.
T. That the Territory of New Mex
leo is organized, created and constl'
tuted with lawful functions only and
is incapable of doing things which are
unlawful, in itself that to charge that
the Territory of New Mexico, hav-
ing none but lawful powers and ca
pacty to do lawful things, has un'
lawfully conspired, as set forth in the
complaint, is to charge an absurdity,
repugnant to the law and impossible
of being true.
8. That the Territory of New Mex
leo as such cannot have conspired un
lawfully or otherwise, having no capa.
city so to do. It's officers may con
spire, but when they do so they cease
to represent or bind the Territory
of New Mexico, but the complaint
herein attempts to charge the Terri
tory of New Mexico with fraud and
conspiracy.
8. That the court has no jurisdic
ton of the subject Of this action.
TO- That the plaintiff, the United
States of America, has no legal capa-
city to sue herein.
II. That this defendant is not, nor
are the defendants, George w,
Prichard, as attorney general of the
Territory of New Mexico Miguel A.
Otero or Alpheus "A. Keen. necessary
or proper parties to complete determi-
nation of any cause of action which
the plaintiff, the United States of
America, may have herein.
II. That the complaint does not
state facts sufficient to constitute
cause of action.
13. That it appears by the com.
plant herein that all the lands in
the complaint described were duly and
legally selected, and that the title
thereto passed out of the United
States to the Territory of New MeXi-
co, wherefore the plaintiff has no
cause of action to demand an account
ing therefor, or an injunction in re-
spect thereto, or a judgment for mon
ey damages on account thereof, but
such cause of action, if any there be,
is shown upon the face of the com
plant to pertain to the Territory OF
New Mexico or to the institutions and
benefciaries of such grant.
IA. That said complaint is con-
Trajectory and repugnant to itself
in setting forth, in paragraph X there
Of, that the funds constituted by said
lands belong to the University of said
Territory, and thereafter praying for
judgment in favor of plaintiff on ac-
count of the alleged waste and de-
struction OF such funds and lands.
Is. That said complaint is brought
by the grantor of property or the stat
ed creator of a trust as alleged, to en-
force that which the complaint char
acterizes as a trust, and shows on its
face that the subject of such alleged
trust had passed from the plaintiff to
the Territory of New Mexico for the
benefit of certain institutions of said
Territory; that such action is unpre-
cedented the grantor Or creator of
trust having no cause of action in
regard thereto; that the right of ac
tion to enforce trust is either in
the cestui que trust who has suffered
damage by the action of the trustee
or by the trustee to correct errors in
the performance of the trust by it's
agents; that the plaintiff, as trustor
as it characterizes itself in said com.
plant, is without any cause or right
of action in the premises.
16. That if any right exists in
plaintiff, the United States of Ameri-
ca, to declare a forfeiture of alleged
conditions attached to a grant of
lands, such right is only in the Con-
gress of the United States.
II. That, as appears upon the face
of the complaint, the plaintiff mas no
interest in the contract which it seeks
to cancel, or in the lands referred to
in such contract.
IS. That the said complaint is in
sufficient, vague, uncertain, and i'm
proper pleading; states conclusions of
law and matter of argument, and fails
to set forth a cause of action as
against this defendant, the Territory
OF New Mexico
Wherefore, this defendant and it's
attorney general pray to be hence dis
missed, with costs.
ALBERT B. FALL,
Attorney General for the Territory of
New Mexico, Santa Fe, N. M.
R. C. GORTNER,
Assistant Attorney General of Coun.