Argument for Appellant.

227 U. S.

Mr. T. B. Catron and Mr. George B. Barber for appellant:

Chapter 80 of the Laws of 1909, relied on as the basis of the right to change the county seat in question, is both a local law, and also a special law, and if otherwise legally enacted is in violation of the Springer Act of July 30, 1886, and is illegal and void and conferred no right to change a county seat in New Mexico.

As to what constitutes a local, special act, or private acts, see People v. Supervisors, 43 N. Y. 16; Matter v. Henneberger, 155 N. Y. 424-427; People v. O'Brien, 38 N. Y. 193; Ferguson v. Ross, 126 N. Y. 464; Closson v. Trenton, 48 N. J. L. 439; Commonwealth v. Patten, 88 Pa. St. 260; Davis v. Clark, 106 Pa. St. 260; McCarthy v. Commonwealth, 110 Pa. St. 246 et seq.; Montgomery v. Commonwealth, 91 Pa. St. 125; Devine v. Commissioners, 84 Illinois, 591 et seq.; State v. Herrman, 75 Missouri, 346; Scowden's Appeal, 96 Pa. St. 424-425; Klokke v. Dodge, 103 Illinois, 125; State v. Mitchell, 21 Oh. St. 592; State v. Judges, 21 Oh. St. 11; Strange v. Dubuque, 62 Iowa, 205; Suth. on Stat. Const., §§ 127, 128, 129, and cases cited; Smith's Com., §§ 595, 596; Sedgwick, Const. Law, 32; Potters' Dwarris on Stats. 355; Ex parte Westerfield, 55 California, 552; Desmond v. Dunn, 55 California, 251; Sedgwick on Stat. Cons., § 127; Van Riper v. Parsons, 40 N. J. L. 123; Zeigler v. Gadis, 44 N. J. L. 363; Hammer v. State, 44 N. J. L. 669; People v. Supervisors, 43 N. Y. 16.

Private acts are those relating to a particular place, or to several particular places, or to one or several particular counties. 1 Kent, Comm. 415; 3 Bouvier Institutes, 95; Jacob's Law Dict. voce Statute; 2 Dwarris on Statutes, 463; Ferguson v. Ross, 126 N. Y. 464; Matter v. Henneberger, 155 N. Y. 425; Van Giessen v. Bloomfield, 47 N. J. L. 442; Closson v. Trenton, 48 N. J. L. 440; Davis v. Clark, 106 Pa. St. 384; McCarthy v. Commonwealth, 110 Pa. St.

227 U.S.

Argument for Appellant.

It is admitted that classification, even where not specially recognized by nature, custom, the laws of trade, or the Constitution must, in certain cases, be adopted ex necessitate, as in the case of cities under the act of May 23, 1874; Wheeler v. Philadelphia, 27 P. F. S. 338, and Kilgore v. Magee, 4 Nor. 401. See also Davis v. Clark, 10 Out. (106 Pa. St.) 377; Commonwealth v. Patten, 7 Nor. 260, and Scowden's Appeal, 15 Nor. 425.

Of all forms of special legislation that under the attempted disguise of a general law is the most vicious. Devine v. Commissioners, 84 Illinois, 591; Klokke v. Dodge, 103 Illinois, 126. See also Codlin v. County Commissioners, 9 New Mex. 577.

Chapter 80 of the Laws of 1909, even if it was not a local or special law, never was legally enacted, was not approved by the governor nor was it ever signed by the president of the council or speaker of the House of Representatives. There is no evidence that it ever reached the governor more than three days before the adjournment of the legislature. See § 1842, Rev. Stat.; Field v. Clark, 143 U. S. 671; Panghorn v. Young, 32 N. J. L. 30; Cooley on Const. Lim., 7th ed., 124.

The plaintiff made a prima facie case, and the burden was thrown on defendants to establish the necessary facts to show that Chapter 80 has become a law by legal enactment. State v. Howell, 26 Nevada, 98; State v. Swift, 10 Nevada, 182 et seq.; Sherman v. Story, 30 California, 256.

The provisions of the second clause of § 631 of the Compiled Laws prescribing the form of the ballot is not and cannot be made applicable to the election in question, the ballot as prescribed is in an unintelligible form to the average voter, is deceiving and misleading and makes it uncertain to the average voter how he should vote, and this is also applicable to the order for the election which prescribed the form of the ballot.

The election was void because no petition "asking for

Argument for Appellant.

227 U. S.

the removal of the county seat of said county to some other designated place," or to Carrizozo was ever presented to or acted on by the Board of County Commissioners of Lincoln county, when they called the election to be held August 17, 1909.

A petition of this kind, which did not inform the signer that he was actually asking for the removal of the county seat to Carrizozo, as the statute required he should do before an election was held, is deceptive; doubtless signers were deceived by believing that the petition only asked for a vote on the proposition, and that the time was opportune for them to vote on it so as to retain it at Lincoln. Lilly v. Lakin, 56 Alabama, 122; Tally v. Grider, 66 Alabama, 122; Lanier v. Padgett, 18 Florida, 843-844; McKinley v. Commissioners, 26 Florida, 264 et seq.; Zeiler v. Chapman, 53 Missouri, 405-406; State ex rel. Lexington v. Saline Co., 45 Missouri, 242; State v. Saline Co. Ct., 48 Missouri, 390; State v. Woodson, 67 Missouri, 336; State v. Albin, 44 Missouri, 348-349; Detroit v. Bearss, 39 Indiana, 598; People's Bank v. Pomona, 48 Kansas, 55; Culver v. Hayden, 1 Vermont, 359; Blackwell, Tax Titles, 213; Pitkin v. McNair, 56 Barb. 77-78; Wheeler v. Mills, 40 Barb. 644; Brun v. Eastman, 50 Barb. 639; People v. Kopplekom, 16 Michigan, 342; Nefzger v. Railway, 36 Iowa, 644; State v. Piper, 17 Nebraska, 618, 619; Adrienne v. McCafferty, 2 Rob. (N. Y.) 353.

The order made by the Commissioners for an election did not specify that the election was to be held for any purpose, and was therefore a nullity.

The elction is also void because there was no registration of the voters.

Unless the legislature provides for the special election to be held in such limited time only as will not admit of a registration, and will not be within the power of the Board to give time enough to make the registration, the registration law must be complied with; if it is possible

to comply with it, it must be done. State v. Scarburox, 110 N. C. P. 232; Smith v. Board of Comm., 45 Fed. Rep. 725 McCrary on Elections, 2d ed., § 193.

Mr. John Y. Hewitt and Mr. Andrew H. Hudspeth for appellees

MR. JUSTICE HOLMES delivered the opinion of the court.

The first of these suits is a bill in equity brought by taxpayers to restrain the County Commissioners of Lincoln County from erecting a court house and jail in the town of Carrizozo, the board assuming that the county seat has been changed from Lincoln to that town. The second is a quo warranto at the relation of a tax-payer against the same board to stop the same and other proceedings taken by the board on the same ground. The Supreme Court of the Territory affirmed a decree dismissing the bill and also a judgment denying the quo warranto. 15 N. Mex. 742. 16 N. Mex. 467. Both cases raised the question whether the attempted change of the county seat was void, and turn on the same facts, which may be stated in connection with the several objections that the appellants take.

In the first place it is said that the statute under which the attempted change took place is void because it is a local law, and the act of Congress of July 30, 1886, c. 818, §1, 24 Stat. 170,' provides that the Legislature of the Territory shall not pass local or special laws in the matter among others of changing county seats. The statute, being c. 80 of the Laws of New Mexico of 1909, is thought to be local because by § 2 it enacts that the place to which it is proposed to remove the county seat 'shall be at least twenty miles distant from the then county seat of said county, and that no proposition to remove a county seat from a place situated on a railroad to one not so situated shall be entertained. It is argued at great length and is obvious that at any given time this enactment does not bear in the same way on every part of the Territory.

In its present form the statute may be specially favorable to the change from Lincoln to Carrizozo, if, as is said, the latter town is on a railroad and Lincoln is not. It may be admitted that a local act could be disguised in general terms, if a legislature would condescend to evading its duties under a constitution or organic act. It may be assumed that general words are not necessarily enough to disguise such an intent. But it is not lightly to be supposed that a legislature is less faithful to its obligations than a court. General words indicate and affirm a general intent, and if the fact that different sections are differently affected is enough to make a law local the field of legislation would be narrowed beyond anything that Congress could have dreamed. It cannot have been intended for instance that no laws should be passed concerning cities or towns, yet such laws would be local in their application. The phrase local law means, primarily at least, a law that in fact if not in form is directed only to a specific spot. If it has a wider meaning it involves questions of degree that cannot be decided by putting cases other than the one before us. We know nothing that would warrant us in declaring that this law was not intended according to its purport to regulate generally the change of county seats. Ritchie v. Franklin County, 22 Wall. 67.

The full discussion in Codlin v. Kohlhousen, 9 N. Mex. 565, has lost but little of its force and applicability notwithstanding the later amendment of the statute. The law is shown not to be a local law, and with regard to the twenty-mile limit it is said to be only reasonable to believe that the Legislature intended, in fixing it, "to prevent cities and towns situated within a few miles of each other from engaging in those injurious contests for the supremacy for the location of the county seat, based upon population only. The wisdom of these conditions is apparent, and it is within the power of the legislature to make them."

However it may be as to the foregoing question, which