Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1919-04-20
HOLDS AMENDING
PROVISION Of OLD
CHARTER IS VALID
Attorney Gives Opinion, at the
Request of Commissioner,
That Voters Have Right to
Amend Present Charter,

That the present city charter can
be amended by the citizens of Albu-
querque is the opinion of United
States Attorney Summers Burkhart.
His opinion was expressed in a letter,
written yesterday by Mr.. Burkhart
to Walter NJ Connell, one Of the COM
missioners, who had asked him for his
view.
Mr.. Burkharts opinion touches one
of the moot points at issue in the com
ing election. Opponents of the new
charter object to the fact that it can
not be amended except by act of the
legislature and point to the provision
of the present charter which says that
it can he amended by the voters of the
city. The constitutionality of this pro-
vision was under attack and Mr..
Burkharts opinion was sought.
Mr. Burkbarts letter follows:
Walter NJ. Council, Esq, Albuquerque,
n M.
Dear Sir:--In response to your re-
quest for my opinion on the several
questions submitted by you | have
to say:
1, The present charter Of Albuquer-
que was formed under the provisions
of chapter Sc, laws of 1917. The va
lidity of this law is question on the
ground that it attempts to delegate to
cities to be organized Hereunder, leg
islative power, which is said to be
contrary to our constitution There
is some conflict amongst the courts
on this question, but think the decid-
ed weight Of authority is against the
contention. ] personally am of the
opinion that the legislature has the
power to authorize local self-govern-
ment in municipalities and that this
statute is constitutional.
3. There is no doubt whatever in
my mind that whether this law is con-
stitutional or not, the present city
government is a de facto government
and it's officers are de facto officers
and have the legal right to exercise all
the powers granted to them. hy that
law and that no one can successfully
question the legality of the present
charter and the exercise of the powers
thereby granted to the present COM
missioners, except the state in a direct
proceeding for that purpose.
In the case of City of Albuquerque
VS.. Water supply company, ia Pac.
2l7-21S, being a case in which the va
lidity of certain acts of the present
officers of Albuquerque was ques-
toned on the ground that this law is
UNCONSTITUTIONAL our supreme court
declined to pass upon its constitution
ality and said in its syllabus; ~
"a municipal corporation created
under an unconstitutional charter is
u de facto corporation and its officers
are de facto officers. The existence
Of the corporation and its right to
make contracts and transact business
as such corporation can not be raised
collaterally. The existence of such
municipality can only be questioned
by the state in a direct proceeding in
stituted by the attorney general for
chat purpose, and until the question is
thus raised and an adjudication had
ousting the corporation from exercise
of the franchise, all acts done and con-
tracts made by the officers of such a
de facto municipality are as valid and
binding upon it and the property
within it's limits as though such Off
GERS were de jure officers of de 1ure
cooperation. For this reason it is UNI
necessary to determine the constttu-
tionality of chapter So, laws 1917 un-
der which the present charter of the
city of Albuquerque was framed.
3. There is no doubt in my opinion
that the present charter can be legally
amended so as to provide for five
commissioners instead of three, by
the submission to the voters of Albu-
querque of such an amendment pro-
posed either by the commissioners
themselves or upon a petition signed
by Is per cent of the number of voters
voting at the last election and by cast
ing of a majority of the votes at the
election ito be held for such amend
ment. The law of 1917 provides:
article VT: Section I. Amend
ment to this charter may be proposed
by members of the commission, or by
a petition signed by ] 3 per cent of the
voters at the last preceding election.
Not less than thirty 500 nor more
than forty (40) days after the filing
of any proposed amendment with the
commission it shall be submitted to
the electorate for adoption or rejec-
ton"
1t is clear that if the people of AL
buquerque have a right to adopt a
commission form of government and
a charter for that purpose under this
law. it can, under this provision of the
law itself. amend its charter at any
time in the manner laid down by that
law.
4. 1t is equally clear that If such
an amendment were adopted and an
election should be held hereunder for
two additional commissioners, the adj
ditional commissioners elected at that
election would be an integral part Of
the city commission, clothed with the
same powers that the three commits
sioners first elected have.
Personally I am strongly opposed
to the adoption of the new charter for
the reason that under the provisions
of the law of 1919 under which it Is
framed the new charter itself could
not be amended by the people of AL
buquerque and there could be no
amendment thereof except by the
direct action of the legislature.