Albuquerque morning journal., 1907-08-25

erwise. consent has been given that
the said territory may be sued herein.
8. That the relations of the United
States of America and its territories
are such that questions which may
arise between them are not judicial.
but political. determinable and re-
lievable by congress and the political
branches of the general government,
but not capable of adjudication be-
tween the general government and its
territories in the courts
6. That, II sued in its sovereign ca
pacity. the Territory Of New Mexico,
like a state, can only be held to an
swer by original action IN the SUI
preme court of the United States.
T. That the Territory OF New Mex
leo is organized, created and consti-
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, having
none but lawful powers and capacity
to do lawful things, has unlawfuliy
conspired, as set forth in the COM
plant. is to charge an absurdity. re-
pugnant to the law and impossible Of
being true.
s. That the Territory of New Mexico
as such cannot have conspired unlaw-
fully or otherwise, having no capac-
ity so to do Its officers may con-
spire but when they do so they cease
to represent or bind the Territory of
New Mexico, but the complaint here
in attempts to charge the Territory Of
New Mexico with. fraud and con-
spiracy.
8, That the court has no jurisdiction
of the subject of this action.
10. That the Rlaintiff, the United
States of America has no legal ca
pacity to sue herein,
H.. 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 deter
mination of any cause of action which
the plaintiff, the United States of
America, may have herein.
H. That the complaint does not
state facts sufficient to constitute a
cause of action.
13. That it appears by the com
plant herein that all the lands in the
complaint described were duly and le-
gally selected ana that the title
thereto passed out of the United
States to the Territory of New Mex
leo, wherefore the plaintiff has no
cause of action to demand an account
ing therefor, or an injunction in re-
spect thereto, or judgment for
money 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
beneficiaries of such grant.
IA. That said complaint is contra
dictory and repugnant to itself in set
ting forth. in paragraph Y thereof,
that the funds constituted by said
lands belong to the university of said
territory, and thereafter paying 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
stated creator of trust as alleged, to
enforce that which the complaint
characterizes as a trust and shows on
Its face that the subject of such al
legged trust had passed from the
plaintiff to the Territory of New Mex
leo for the benefit Of certain instl-
tutions of said territory; that such
action Is unprecedented the grontor on
creator u trust having no cause 81
action i'm regard thereto that the
fright of action to enforce a trust Is
either I'm 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 its agents. that the plaintiff as
tfustOr as II characteriZes itself In
said complaint is without any cause
or right of action in the premises.
1G, That If any right exists In
plaintiff, the United states of Amer
lea, 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
H. That as appears upon the face
OF the complaint, the plaintiff has no
interest in the contract which 1t seeks
To cancel, or in the lands referred to
In such contract.
Is. That the said complaint is in
sufficient. vague, uncertain and im-
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 its
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 Counsel