Albuquerque morning journal., 1907-09-21
Judge Abbott Rules United
States Has Right to Inquire
into Disposition Of TimberI
From Institutional Lands, 4
TEXT OF INTERESTING
RULING ON QUESTION
Contention Of Defense that
Territory as Sovereign Power
Cannot Be Suedl DiSp{oved
M the Court, ~
N the Court,

As announced yesterday in the
Morning Jou1nX Judge ira A. Abbott,
presiding in VI Second district court
has returnedHan opinion in which he
overrules THE demurrer to the COM
plant of the United States against
the Territory of New Mexico, the
American Lumber compa ~, ct al, III
which the government SEEKS to COM
pei the territory to make an account
ing for timber sold from certain IN
stitutional lands, to the defendant
corporations, and which the complaint
of the government AYERS, the territory
had no right to sell The demurrer
which was argued at length some days
ago before Judge Abbott, was brought
by attorneys for the defense, the Ter
ritory of New Mexico and the corpora
tiOns, on the main ground that the
territory as sovereign power could
not be sued in a United States court
without the consent of the territory,
and that the United States having
passed title to the land had no legal
right to inquire into the disposition
made of the timber off such land.
In the argument on the demurrer
the territory was represented by At
torney General A. b. Fall, who made
a strong argument for the suprem-
acy of the territory in conducting the
management Of the timbcr ands m
question. Attorney f, w. DObson Of
Aibuquerdue, appealed dNfof the Amer
ican Lumber company, while the gov
ernment's side of the case was pre-
sented by Special Assistant Attorney
General Ormsby McHarg, who ap-
peared alone and for whose argument
the ruling by Judge Abbott Is a do
cided victory since his contention Of
the governors right to bring the
suit and also of the jurisdiction of the
United States court to hear the case,
is sustained throughout.
The case, it is understood, may go
to the supreme court of the territory
on the demurrer, or it may proceed
to hearing on its merits. It is n
matter of such importance that the
full text of the courts ruling Is given
below:
Territory of New Mexico, Second Ju-
dicia District. In the District Court
for the Trial of Causes Arising I'm
der the Constitution and Laws Of
the United States.
The United States VS.. The Territory
of New Mexico and The American
Lumber Company; No 2.
ne 0HlAtu OldltS vs.. Inc IfIIItOIg
of New Mexico and The American
Lumber Company; No. 3.
The United States VS.. The Territory
of New Mexico and Clark M. Carr;
No 4.
Opinion.
Some Of the questions raised in
these causes are of such Importance
that | think IL advisable to state my
reasons for overruling the demurrers
TO the amended complaints.
The essential allegations Of the
complaints are that land. which was
granted TO the territory of New Mex
leo by act of congress of June 21,
1898, has been sold contrary to the
terms of that act by the territory,
through its officers appointed for the
purpose; that by collusion between
those officers and the purchasers, who
are made defendants, II was sold at a
grossly inadequate price and In
quantities much In excess of that fixed
for single purchaser by the terms
OF that act, and that the territory has
received the money so obtained. The
defendants take the ground that the
United States by said act and the To-
cations or designations made as
therein stated provided. definitely and
which is the subject of these suits. and
now has no interest In 1t on which
II can maintain this action. Further
they declare that even II the existence
of the cause of action and the interest
of the United States in Il be granted,
yet the territory of New Mexico Is n
sovereign body polite and cannot be
sued except as congress may by law
authorize suits to be brought against
It, or that, II Il can be otherwise sued,
Il can only be In the supreme court
of the United States as a state of the
union might be sued.
That the United States could, In
the proper forum. maintain this ace
tlon against New Mexico If the latter
were a state, and otherwise related to
It's subject matter and the other par-
ties to IT, as set forth In the bills OF
complaint Is I'm my opinion estab-
tContInued on Page 2. col i.l