Volume 20 — New Mexico Reports

Mechem, Judge. Action by Trinidad Baca and others against the unknown heirs of Jacinto Palaez, deceased, and others. From judgment for plaintiffs, defendants appeal. (Brief on merits.) The 'transcript is imperfect and insufficient for the purpose of reviewing this case on appeal. No bill of exceptions was ever made up and only a portion of the evidence carried into transcript. The certificate is not in the form required by law. Ch. 57, Laws of 1907.

Action by Ella Taylor against Oscar C. Taylor. From a judgment for plaintiff, defendant appeals. The complaint does not show that any ground of divorce exists. Sub-section 6 of Section 32 of Chapter 63' of the Laws of 1901, which provides that one of the grounds of 'divorce is “Neglect on the part of the husband to support the wife, according to his means, station in life, and ability,” is the provision upon which appellee relies.

Mechem, Judge. Amado Ancheta was convicted of. rape, and appeals. The verdiqt is founded on prejudice. The whole story is unreasonable. The court erred in admitting testimony concerning the attempt made by appellant to bribe two witnesses. The charge of rape is easily made and the court should carefully guard the rights of the state and the accused. Hubert v. State, 104 N. W. (Neb.) 276.

S. Groves, O. L. Owen, and H. IT. Williams, Commissioners. Proceeding instituted before the State Corporation Commission by the New Mexico Wool Growers’ Association, by Horace C. Abbott, its president, and Charles Chadwick, its secretary, against the Atchison. Topeka & Santa Fé Eailway Company, a corporation. From an order denying the relief sought, petitioner appeals.

L. Medler, Judge. George Montgomery was charged with unlawfully selling liquors, and from the sustaining of a motion to quash the indictment, the State appeals. The indictment was drawn under section 4126, C. L. 1897. The statutes include a person not engaged in the business of selling liquor as well as one that is so engaged. A repetition of language occurs if this is not so. The question is purely one of statutory construction.

C. Mechem, Judge. Action by Ed. S. Mundy against W. J. Irwin. From decree for plaintiff, defendant appeals. Complaint is defective because of insufficient allegation as to description. Marriner v. Dennison, 20 Pac. 386; 76 Fed. 533. A contract which equity will specifically enforce must be specific in its terms and certain with reference to the description of the property and the estate to be conveyed. Warville on Vendors, par. 96, vol. 1.

C. Abbott, Judge. José P. Lucero was convicted of solicitation of bribery, and appeals. The indictment is defective. There is no charge that the money was “solicited, taken or received” for the vote of appellant on any matter or thing pending or in any manner before the legislature for its consideration. An indictment cannot be aided by intendment nor is it safe to indulge in speculation as to what may have been in the mind of the pleader.

Ravnolds, Judge. Mjandamus by the State, on relation of O. Lorenzino, against the County Commissioners of McKinley County, New Mexico. From judgment for defendants, relator appeals. The territory embracing the Diamond Coal' Camp, relator’s saloon building and residence is a village for the purpose oÍ granting license for sale of intoxicating liquor.

McClure, Judge. Action by the City of Roswell against IT. S. Bateman. From judgment for plaintiff, defendant appeals. The 'word “may,” as used in section 2892, C. L. 1897, means “must” or “shall.” In re McCort, 3-4 Pac. (Kan.) 456. The assessment being levied by the front foot rather than for benefits received, is in contravention of the fourteenth amendment of the Constitution of the United States. Norwood v. Baker, 172 U. S. 269; McCormack v. Patch-in, 53 Mr. 33; 1 Abb.

Action, of. the First National Bank of Raton against Charles E. Dennis, receiver of the American Bank & Trust Company. From a judgment for defendant, plaintiff appeals. • Instructions between banks to remit collections made, establish the relation of principal and agent, not that of debtor and creditor. Hutchinson v. National Bank of Commerce, 41 So. (Ala.) 143.

C. Mechem, Judge.' Mandamus by the State, on relation of A. B. Baca, against Max H. Montoya, Treasurer of Socorro County. Demurrer to defendant’s answer sustained, judgment for plaintiff, and defendant' appeals. Appellee is entitled to no compensation for rendition of services except such as is provided for by act of the Legislature. Sec. 1, art. 10, State Const.; State v. Romero, 124 Pac. (N. M.) 649; id., 125 Pac.; Herbert v. Bd. County Commissioners, decided July 25, 1913.

: Action by C. W. Durrett against the Chicago, Rock Island & Pacific Railway Company. From judgment for plaintiff, defendant appeals. The court erred in refusing to give the first requested instruction, which was to the effect that plaintiff waived all claims for damages because of his written request made to defendant to keep the cattle in question on the train not exceeding thirty-six hours. We are unable to find any authorities on the question.

J. Leahy, Judge. Action by A.- O. Jahren against Paul Butler and others. From a judgment for plaintiff, defendants appeal. Held: under the facts of that case that the statute of limitations was applicable. STATEMENT OF FACTS.

Action by J. II. Sloan against J. B. Wood and another, copartners- doing business as the Wood-Davis Hardware Company. Judgment for plaintiff, and defendants bring error. Defendants were independent contractors who had completed and turned over their work to the owner, by whom it had been accepted, and therefore were not liable to third persons for injuries resulting from alleged defects in the. work. Thompson on Neg., 686, and cases cited; Whart. on Neg.

Action by the Board of Trustees of the Cebilleta de La Joya Grant, for the benefit of the owners in common thereof, against the Board of Trustees of the Belen Land Grant. The Court of Private Land Claims had jurisdiction of the original petition of Felipe Peralta and Tomas Cordoba for the confirmation of the grant. 6 Fed. Stats. Ann. 54.. As to what constitutes jurisdiction see Brougham v. Oceanic Steam Nav. Co., 205 Fed. 856.

F. Baynolds, Judge. Action by Paul Grates, by his next friend, Barbarita .Aragon Brown, against Petra Garcia. From judgment for defendant, plaintiff appeals. There was no evidence to support the verdict, and it was error for the court not to grant appellant a new trial. Hilliard on New Trials, 445 and authorities cited; Moore on Facts, secs. 69-76; Puritan Mfg. Co. v. Toti & Grady, 14 N. M. 425.

A. Richardson, Judge. Action by M. J. De Witt against the United States Fidelity & Guaranty Company of Baltimore, Md. From judgment for plaintiff, defendant appeals. The complaint proceeded on the theory of an action ex contractu and that theory cannot be changed. Gallegos v. Sandoval, 106 Pac. (N. M.) 373. The sheriff, being the obligee, is the only person who could proceed on the bond.

C. Abbott, Judge. Suit by José Eafael Lovato and others against A. B. Eenehan and another. From a judgment of dismissal, plaintiffs appeal. The substituted trustee is the proper party to bring suit for his cestui que trust. Subsections 2 and 3, sec. 2685, C. L. 1897. The substituted trustee stands in the shoes of his father, the original trustee. Perry on Trusts, (6th Ed.) sec. 73.

<p>On motion to retax costs.</p> <p>No briefs fled.</p>

Judge. W. P. Harbert, convicted of the crime of statutory rape, appeals. The evidence is not sufficient to sustain the verdict. The case must therefore be reversed. Stain v. Albuquerque, 10 N. M. 491; Spencer v. Gross Kelly, 135 Pac. (N. M.) 77; Romero v. Gonzales, 3 N. M. 5. “Substantial,” as used in the decisions of the court, means “of real worth and value.” 2 Stand. Diet. 1793. Children are highly imitative.

William T. Clienault was convicted of feloniously having in his possession for evil purposes a woman and minor, in violation of Comp. Laws 1897, § 1349, and appeals. A penal statute, to be valid, must define the offense with certainty. It must be sufficiently definite to show what the Legislature intended to punish. Clark & Marshall Law of Crimes, sec. 45, p. 59; State v. Partlow, 91 N. C. 550; Forster v. Territory, 1 Wash. 411, 25 Pac. 459; State v. Mann, 2 Oreg. 238.

D. Leib, Judge. Action by the Clayton Town-Site Company against the Clayton Drug Company and another. From judgment for plaintiff, defendants appeal. The order given by Slack to the Drug Company was inadmissible, for the reason that no connection was shown between the Drug Company and Bushnell Brothers, defendants. Jones on Evid., sec. 136; sec. 170. Hayden was not shown to have power to bind the Clayton Drug Co. or Rose M. Bushnell.

D. Leib, Judge. Caria Vansickel was convicted of murder in the first degree, and appeals. The court erred in refusing to give requested instruction eleven to the effect that the danger need not be actual but may be so manifestly apparent as to create a reasonable belief of present impending peril to life or limb. Wharton on Homicide, 457; Tilley v. State, 5 Am. St. R. 882; Bonner v. State, 15 S. W. (Tex.) 821; Brumlet v. State, 57 Am. R. (Tex.) 612; Bell v. State, 20 Tex.

C. Abbott, Judge. Action by Roy J. Crichton and others against Andy Storz and others. From judgment for defendants, plaintiffs appeal.

L. Medler, Judge. Action by P. G. James against Henry Lutz and another. From an order, overruling a motion to vacate, judgment, defendants appeal. This case, by consent, was set down for trial. Counsel for appellant was engaged in the trial of two cases on a certain day, finished therewith and left the court house at four in the afternoon.

Action by Lucy ML Anderson and another against Mary E. Eeed. From judgment for plaintiffs, defendant appeals. This action does not survive. Sec. 3087, C. L. 1897. As to what is fraud in the inducement. Page on Contracts, secs, 87, 95; 20 Cyc. 20 and cases cited; Ellis v. Newbrough, 27 Pac. 490. As to what is fraud and fraudulent representation.

Action by John R. Webb against John T. .Beal and others. From judgment for plaintiff, defendants appeal. (No’brief on file.) Attorney’s fees and expenses necessarily incurred in dissolving a wrongful restraining order are proper elements of damages in a suit on the injunction bond. 22 Cyc. 1053, 1056, 2 High Injunctions, (2nd Ed.) 1050, 1061; 1 Spell, on Injunctions, (2d Ed.) 796 Territory v. RindscofE, 5 N. M!. 93, 20 Pae-. 180; Mulvane v. Tullock, 50 Pac. (Kan.) 897.

<p>Appeal' from District Court, Roosevelt County; McClure, Judge.</p> <p>Action by R. II. Warren against R. Kornegay and others. Judgment for plaintiff. Defendants appeal.</p>

C. Abbott, Judge. Manuel Roybal y Lopez was convicted of stealing and selling one head of neat cattle, and appeals. - The evidence is insufficient to sustain the verdict in that' it shows that the appellant sold the calf in question under an honest claim of ownership, the intent essential to larceny therefore being absent.

' '• Action by William D. Klutts and another against Moses B. Jones, Treasurer, and another. From judgment for defendants, plaintiffs appeal. Facts may be stated on information and belief as well as positively. : Sub-secs. 47 and 48, see. 2685, C. L. 1897. Bona fide residents of the school district were entitled to vote at the election. Sec. 1, art. 7, Constitution of N. M. To be a legal voter one must be a resident of the district.

L. Medler, Judge. Action by Eugene Van Patten against Nathan E. Boyd; Prom judgment for plaintiff, defendant appeals. Boyd had no vested right as against the U. S., but by reason of his valid and subsisting homestead entry he did have such right as against the appellee. Shepley v. Cowan, 91 D. S. 330, 23 L. Ed. 424. Equity will declare and enforce a trust as to the land on account of the false and fraudulent evidence adduced by appellee before the Land Department.

L. Medler, Judge. Action by the Third National Exchange Bank of San-dusky, Ohio, and another against D. B. Smith and another. Held: occupied, and possessed the said lands for more than 15 years, under and by virtue of the conveyances from the commissioners of the Eefugio colony grant and the said mesne conveyances; and that the said defendant D. B. Smith and his assigns now hold and possess and are cultivating the said lands under and by virtue of the said…

F. Raynolds, Judge. 'Condemnation proceedings by the Atchison, Topeka fr Santa Fé Railway Company against Johanna Richter. From a judgment for Richter, the railway company appeals. .The owner of land which has been entered upon by a public service corporation and subsequently condemned is not entitled to compensation in the condemnation proceedings for ties, culverts, rails, etc. Cohen v. St. L., Ft.

<p>SYLLABUS BY THE COURT.</p> <p>1. Executors, administrators, and other persons and corporations specified in section 17 of chapter 57 of the Laws of 1907, are entitled to supersede a judgment against them, as such, only when they have sued out1 an appeal or writ of error within 60 days from the date of the entry of the final judgment of which they complained. P. 308</p> <p>2. Where an administrator, as such, seeks to supersede a judgment against him by suing out an appeal five months after the date of entry of the final judgment of which he complains, he is not entitled to an order of this court directing the trial judge to permit a supersedeas of the judgment.</p> <p>P. 308</p> <p>3. It is an elementary rule of construction of statutes that all parts of an act relating to the same subject should be considered together, and not each by itself. P. 30-9</p>

Disbarment proceedings, against Yin W. Moore. STATEMENT OF FACTS. This is a companion case of that entitled “In the Matter of the Proceedings Looking to- the Disbarment of Charles H. Hittson,” 150 Pac. 733, decided at this term of court, but, as jret, unreported. The facts are somewhat tlie same in tlie two cases. The respondent, V. W. Moore, is a practising attorney in the city of Tueumcari.

Disbarment proceedings against C. II. Hittson. STATEMENT OP PACTS. This is an original proceeding instituted in this court, under the statute', looking to the disbarment of C. FI. Hittson, a member of the bar' of- this state. The proceedings are based upon a written accusation filed by the At* corney General, charging respondent with unprofessional acts, to which disbarment as a consequence is by law at-cached.

Action by Albert Wallis against John Mulligan. From judgment for plaintiff, defendant appeals. If the court’s findings were unsupported by the evidence, or if a fact material to a finding upon which the judgment is based is unsupported by evidence, the judgment will be reversed. Brooks v. Clifton, 22 Ark. 54; Hedge v. Williams, 63 Pac. (Cal.) 721; Standard Co. v. Windham Bank, 42 Atl.

Raynolds, Judge. Habeas corpus by Mrs. F. A. Focks against Mrs. Mary Munger. From judgment for defendant, plaintiff appeals. The wishes of the child are not material. The parents are entitled to the possession and custody of their own child as against a stranger. Moore v. Christian, 56.Miss. 408, 31 Aru.

F. Raynolds, Judge. Action by Thomas MeMillen against D. II. Boatright, Miayor, and others. From judgment for plaintiff, defendants appeal, and plaintiff moves to dismiss the appeal. STATEMENT OP PACTS.

F. Baynolcls, Judge. Action by Julianita Apoclaca cle Gurule against Thomas-R. Duran. From a judgment for defendant, plaihtiF appeal's. The court erred in refusing to grant leave to amend the-reply and to permit appellant to- introduce additional testimony. Bliss on Code Plead., sec. 431, p. 664; Cook v. Spears,. 2 Cal. 409; Hayden v. Hayden, 46 Cal. 232; Cook v. Croisan, -36 Pac. 532; Blood v. Fairbanks, 48 Cal. 171; Bean v. Stoneman, 37 Pac. 777; Valencia v. Crouch, 91 Am.

A. Richardson, Judge. Action by Jacques Michelet against C. W. Cole. From judgment for plaintiff, defendant appeals. The grant of the fee included a grant of the right of way. Broom’s Legal Maxims, 310; Wash. Real Prop. (6th Ed.), sec. 1231; Id., sec. 1234. Cole acquired a wáy of necessity whether the same was expressly granted or not. 14 Cyc. 1174.

Action by John T. Childers against the Southern Pacile Company. Prom judgment for plaintiff, defendant appeals. Appellee was a mere trespasser upon the tracks of appellant company; did not contemplate passage on its line of railroad; that there was no privity between the two, nor was he oh the right of way for the purpose of transacting any business with appellant company. Under the pleadings and proof appellee was not entitled to recover under the law. Phila.

<p>SYLLABUS BY THE COURT.</p> <p>Where a class of taxpayers are willfully and intentionally discriminated against, not by overvaluation of their property, but by undervaluation of the property of other taxpayers*, and where they have no adequate legal or statutory remedy, they may be relieved in equity from the discriminatory portion of such tax. c</p> <p>P. 379</p>

D. Lieb, Judge. ■Action by the First National,Bank of Eaton, and others,, against Thomas McBride, Treasurer of Colfax Counly,. N. MJ From judgment for plaintiffs, defendant appeals.. The court erred in holding that complainants alleged a violation of section 5219 of the Eevised Statutes of the-United States, because that section does not apply to moneyed capital in the hands of individuals unless such money comes into competition with the money of national banks.

D. Lieb, Judge. Action by tbe Price Shoe & Clothing Company and others against Thomas McBride, Treasurer of Colfax County. From judgment for plaintiffs, defendant appeals. The state board of equalization had no power to increase the valuations fixed by the county authorities. Chapter 124, Laws 1909. . The assessments made by the officials were discrimina-' tory and therefore unconstitutional and void.

<p>Appeal from District Court, Santa Fé County; Merritt C. Meehem, Judge.</p> <p>Injunction by Harry H. Dorman against William G. Sargent, as State Auditor. From a judgment for defendant, plaintiff appeals.</p>

Original mandamus by Iiowell Earnest, as Traveling-Auditor and Bank Examiner of the State of New Mexico, against William O. Sargent, State Auditor of the State •of New Mexico. Did House Bill No. 294 pass the Legislature within the ■constitutional time limit?

C. Mechem, Judge. Suit by Joseph E. Smith, next friend of John D. Herbert and another, infant heirs of John D. Herbert, deceased, against Henry Steen and another. From a judgment for defendants, plaintiff appeals. Trial court had jurisdiction of this case, because the facts stated in the complaint and relief prayed were of an equitable nature and such relief as only could be afforded in a court of equity. The probate court is of limited jurisdiction.

F. Baynolds, Judge. Action by Willie Elgin, as administrator de bonis non of the goods, chattels, and credits of M. B. Atkinson & Sons, against Gross-ICelly & Co., a corporation. From a judgment for plaintiff, defendant appeals. Action for money had and received is purely equitable and recovery must be upon equitable principles. 27 Cye. 849.

J. Leahy, Judge. James Griggs was convicted of larceny of cattle, and appeals. Ownership must be proved by sufficient evidence or the conviction cannot be sustained. McKnight v. State, 58 S. W. 95; Kinney v. State, 19 S. W. 681; Thompson v. State, 23 Tex. App. 356; Atkins v. State, 44 Tex. Cr. 291; 12, Cyc. 382. There is no proof of venue and no sufficient evidence of the taking.

C. Abbott, Judge. Action by Mayme E. Alldredge against Eobert E. All-dredge and others, in which Elmer E. Studley and another intervene. Judgment for plaintiff, and defendant Eobert E. Alldredge appeals.

C. Abbott, Judge. Action by M¡ayme E. Alldredge against -Bobert E. All-dredge and others. Judgment for plaintiffs, and defendants appeal. Appellant was entitled to a 'jury trial to determine the amount of money to be awarded as attorneys’ fees, if there . was a contract on the subject, which we deny. Sec. 12, art. 2, Constitution of N. M.; 7th Amend. U. S. Const.; Act April 7, 1874, c. 18, 27 Stat. L. U. S.; sub sec. 110, sec. 2685, O. L. 1897; Baca v. Anaya, 84 Pac.

Action by John S. Cadwell and another against J. M. Higginbotham and others. From a judgment for pl-uitiffs, defendants appeal. The court erred in permitting the plaintiffs to file, as a trial amendment, the second amended complaint, the same introducing a new cause of action. Sub sec. 82, see. 2685, C. L. 1897; Loretto Lit. Soc. v. Benevolent Soc., 136 Pac. (N. M.) 858; Candelario v. Miera, 134- Pac. (N. M.) 829; Bank v. Speed, 15 N. M. 1, 4; 31 Cyc. 409.

A. Richardson, Judge. Action by Kid Speakman against John S. Hayden and others. From judgment for plaintiff, defendants appeal. Hayden was not acting as'agent ofiBábler in'making the loan. Jones on Evid.

Action by H. S. Murdoch against Seaon Loche. From a judgment for plaintiff, defendant appeals. STATEMENT OP PACTS. This is an action brought in the district court for Colfax county by appellee against appellant.

Application by Thomas M. Bates for writ of habeas corpus. STATEMENT OP PACTS. This is an application by Thomas M. Bates for a writ of habeas corpus, based upon the following state of facts, to-wit: The petitioner, on the 21st day of October, 1914, was sentenced to serve a term in the state penitentiary of not less than 12 nor more than 15 months, from and after said date, upon a verdict of guilty by a jury upon an indictment charging an assault with intent to kill.

Action by Julia S. Crawford, administratrix of John W. Crawford, deceased, against the Western Clay & Gypsum Products Company. From a judgment for plaintiff, defendant appeals. The court erred in refusing to instruct the jury for appellant. The deceased knew and comprehended the danger. Peed v. Stockmeyer, 74 Fed. 186; Cole v. Chicago N. W. Ey. Co., 71 Wis. 114, 5 Am. St. E. SOI. The court erred in giving the sixth requested instruction.

.F. Baynolcls, Judge. Action by the State of New Mexico against the Atchison, Topeka & Santa Fe Bailway Company. From a judgment of' dismissal, entered on sustaining a demurrer to the complaint, the State appeals. The tax attempted to be collected in this case is based on chapter 8, Laws of 1905.

Action between Elise Dewitz and Paul E. Dewitz, and the Joyce-Pruitt Company, a corporation. Prom a judgment confirming a mortgage foreclosure sale, Elise and Paul E. Dewitz appeal. A mortgage foreclosure sale must be supported by a valid judgment or decree of a competent court. 27 Cyc. 1680; 24 C]rc. 10 and cases cited. The notary taking the acknowledgment to the mortgage was a stockholder and director of the corporation,, which rendered the mortgage void.

<p>Petition for mandamus by the State Highway Commission against Wm. G. Sargent, State Auditor.</p>

- Suit to quiet title by James P. Mitchell and- others against Guadalupe C. Frietze and others. From a decree for complainants, defendants appeal. The several assessments in the names of the heirs of certain persons, without enumerating them, were authorized by law.

<p>Appeal from District Court, Santa Fé County; Mechem, Judge.</p> <p>Suit by the Atchison, Topeka & Santa Fé Eailway Company against Celso Lopez, Treasurer and Collector of Taxes-. From a judgment for complainant, defendant appeals.</p> <p>The court erred in holding the bridge law unconstitutional.</p> <p>Secs. 1, 2 and 3, chapter 11, Laws 1899; sec. 1, c. 60, Laws of 1897 (sec. 867, C. L. 1897); Guthrie National Bank v. Guthrie, 173 IT. S. 538; Codlin v. Co. Com., 9 N. M. 567; Territory v. Cutinola, 4 N. M. 305; Territory v. Beaven, 15 N. M. 357; Sears v. Fewson, 15 N. M. 133; Smith v. Judge, 17 Cal. 554; Lewis-Suth. Stat. Const. (3d Ed.) 351.</p> <p>An act providing for a new system of compensation for county officers repeals all .prior laws on the subject.</p> <p>Lew. Suth. Stat. Const. 355; Commonwealth v. Mann, 168 Pa. St. 390; Commonwealth v. Allegheny County, 168 Pa. St. 308.</p> <p>In construing a, statute words may be restricted or .enlarged according to the intent with which they were used.</p> <p>Lewis-Suth. Stat. Const., sec. 378.</p> <p>Continual and long acquiscence in and recognition of the validity of the classification law of 1897 and the bridge law are factors to be considered by the court.</p> <p>Lewis-Suth. Stat. Const. 477, 489; Wetherington v. District Court, 143 Pac. (Nev.) 330.</p> <p>Statutes will be construed as to prevent hardships and absurdities.</p> <p>Lewis-Suth. Stat. Const., sec. 490.</p> <p>The county commissioners, independent of these statutes, had the general and express authority to make thé levies under sub-see. 11 of section 664, C. L. 1897.</p> <p>The judgment levy was legal.</p> <p>See. 657,' C. L. 1897; c. 108, Laws 1909; U. S. Trust Co. v. Territory, 10 N. M. 431; Territory ex rel. v. Bd. Co. Corns., 14 N. M. 134.</p> <p>The classification law of 1897 ((see. 1, chapter 60, Laws 1897) upon which the bridge act is based, made no provision for its future operations, and such acts, without exception, have been universally condemned.</p> <p>Julian v. Model B. L. L. & L. Assn., 116 Wis. —:; Lewis’ Sutherland on Statutory Construction (2d Ed.), sections 199, 203 and 214; Thomas v. Austin, 103 Ga. 701, 30 S. E. 627; Codlin v. County Commissioners, 9 N. M. 565; Holt v. Mayor, etc., of Birmingham, 19 South. 735 (Ala.); Alexander v. City of Elizabeth, 28 Atl. Rep. 51 (N. J.); Territory v/Baca, 6 N. M. 420..</p> <p>The holding of Guthrie National Bank v. Guthriej 173 H. S. 528, does not mean that the Legislature may violate one of the constitutional inhibitions.</p> <p>If appellant’s contention that the classification act is valid is correct, the levy would raise more than the amount permitted by statute.</p> <p>There must he distinct authority for making a levy.</p> <p>1 Cooley on Taxation, 546; 27 Am. & Eng. Ene¡ Law, 730. ' ^</p> <p>Where a portion of a tax is illegal, a sale of the property for such tax is void, although a part of the tax- is valid.</p> <p>Gage v. Pumpelly, 115 U. S. 454; McLaughlin v. Thompson, 55 111. 249; Gage v. Goudy, 141 111. 215; Drake v. Ogden, 128 111. 603.</p> <p>“Whatever preliminaries are by law made essential to the levy of a tax must be observed or the tax will be void.”</p> <p>Cooley on Taxation, vol. 1, p. 562; 37 Dye. 971; Couper v. Rowe, 42 Ga. 299; Huntington v. Central Pac. Ry. Co., 2 Sawyer, 503; State Auditor v. Jackson Company, 65 Ala. 142; Hughes v. Reis, 40 Cal. 255; Hitchen v. Smith, 101 Penn. 452; Chicago, B. & Q. Ry. Co. v. People, -213 111. 458; Nelson v. Oklahoma City, etc., 104 Pac. 42; Ventimiglea v. Eichner, 140 N. T. 401.</p> <p>STATEMENT OF FACTS.</p> <p>The Atchison, Topeka & Santa Fé Railway Company, plaintiff in the court below, brought this action to restrain the collection by Santa Fé county of certain taxes levied for the year 1912. In its first cause of action the railway company sought to defeat the collection of two levies for the construction of certain bridges in said county upon several grounds; the only one, however, which is before this court for consideration, being based upon the contention that both of said levies were made under the provisions of chapter 11 of the Laws of 1899, as amended. This, law, commonly known as the “Bridge Law,” is alleged to be a special law in conflict with the act of Congress approved July 30, 1886, commonly known as the Springer Act. This being the only question passed upon by the trial court, it will be the only question considered by this court in passing upon this, the first cause of action, and the first question presented.</p> <p>The second cause of action was based upon allegel illegal levies for courthouse building purposes, and as to this cause of action the court found against the plaintiff, and no appeal has been taken from such finding, so that the same presents no question for our determination.</p> <p>The third cause of action, however, is predicated upon an alleged illegal and void levy of 1% mills for the year 191.3 for the county judgment fund. By stipulation of the parties, it appears that this levy covered two judgments, one rendered in cause No. 6393 in the district court of Santa Fé county for .$344.43, and one in cause No. 6738 in the same court for $4,046.91, on certain interest coupons of .Santa Fé county bonds. The trial court found that, at the time said judgment levy was made, judgment had not been entered in cause No. 6393, and that the judgment in No. 6738 was not for current expenses, and that the levy was therefore illegal and void. A perpetual injunction was entered in the district court, restraining the appellant, as treasurer and collector of .Santa Fé county, from selling or offering for .sale the property of the plaintiff, and from taking any action for the enforcement or collection of taxes against the plaintiff under the levies referred to in the first and third causes of action .of plaintiff’s complaint. From the final judgment of the district court, and perpetual injunction thereby granted and .allowed, this appeal was taken.</p>

Suit for mandatory injunction by J. M. Miller against the Hagerman Irrigation Company, a corporation. From a judgment for plaintiff, defendant appeals. Tbe court erred in holding that sec. 60, c. 49, Laws-1907, requires that defendant should carry water of plaintiff in its canal, and erred in holding that said act, when so construed, is constitutional. Appellant is not a public service corporation of such a-character that it must carry water without compensation.

• Appeal-from District Court, Santa Fé County; E. C. Abbott', Judge. Action by Aniceto Abeytia and others against Willie Spiegelberg and others, wherein T. B. Catron and others intervened. From a judgment for plaintiffs, defendants and interveners appeal.

<p>Application for writ of prohibition by the State, on the relation of Robert T. Mansker, Sheriff of Union County, against Hon. Thomas D. Leib, Judge of the Eighth Judicial District of the State of New Mexico, and the District Court of Union County.</p>

F. Raynolds, Judge. Action by tbe National- Kubber Supply Company against Oleson & Exter and others, wherein Herbert Asselin, administrator of the estate of Joseph A. Nadeau, deceased, intervened.. Erojn judgment for plaintiff, interevener appeals. The agreement being in writing the court erred in receiving or considering oral evidence to vary or change the terms thereof. McCormick Harvesting Mach.

<p>Original application by John Henry Towndrow for a writ of habeas corpus.</p>

• Appeal from District Court, Mora County; J. Leahy, Judge. Irvin Ogden was convicted of criminal libel, and appeals. The indictment does not charge a libel. Sec. 17, c. 11, L. 1889. As to what is colloquium, see: Van Veichten v. Hopkins, 4 Am. Dee. 339; State v.. Elliot, 61 Pac. 981; Barnes v. State, 41 Atl. 781; 2' Words & Phrases, 3569; Squires v. State, 73 Am.