tion. Both classes are "under the control of the state”—that is, under its legislative control, which is a broader and more natural signification of the words employed than ministerial control. The former is applicable to all the classes named in the section, while the latter is not, it being conceded that municipal corporations proper are not under the ministerial control of the state.

It may be said that private corporations are also under the control of the state, but this is true in a limited sense, and only to the extent of the reservations in their charters, or in the organic law, so far as fundamental changes in such charters are concerned.

In respect to the employment of the word such in said section, there is evidently a misapplication of the word. The forced construction contended for, however, does not cure this, since there would still remain the incongruous expression "for such * * * penal or reformatory corporations as are or may be under the control of the state." The same implication said to arise in respect to municipal corporations proper, may quite as consistently be said to arise as to penal corporations, if the construction contended for be adopted, to wit, that all penal corporations are not under the ministerial control of the state-a proposition which is no more admissible than that all such corporations are not under its legislative control. The presumption obtains that the language employed in this section was designed to be taken in its ordinary acceptation, and to our minds the arguments of counsel fail to demonstrate that this presumption does not hold good. As before stated, the subject matter of the entire article XV, relates to private corporations. The reference to municipal and other corporations, named in section 2, was for the purpose of excepting them from the operation of the provision concerning special legislation.

In so far as the questions presented by this record are concerned, the validity of the amended charter must be sustained.

In respect to the rulings of the court upon the trial below, we are of opinion that the facts alleged and admitted in the pleadings, together with the proofs introduced in evidence on the part of the relator, made out a prima facie case in his favor.

All proofs offered by the respondent were rejected as incompetent and immaterial, and the jury was directed to return a verdict for the relator. The correctness of these rulings are questioned.

Unless the rejected proofs tended to show a right in the respondent to continue to hold and exercise the duties of the office of city attorney after the election and qualification of Mr. Tilford, no error was committed in their rejection.

The proofs offered were:

First-The proceedings of the city council, had on the sixteenth of November, 1882, showing the election by said council of James A. Dawson as city attorney for the ensuing year.

Second-The proceedings of said council, on March 1, 1883, showing the resignation of said Dawson and the election by said council of the respondent to fill the unexpired term.

Third-A certified copy of the ordinance of April 5, 1883, which provided, among other things, that all city officers elected in April, 1883, except the mayor, the alderman, and the city auditor, should enter upon the duties of their respective offices at the expiration of the full terms of those officers whose offices they were elected to fill, and not before.

So far as the council proceedings offered are concerned, they are of no force, as against the positive provisions of the legislative act of February 13, and the election held thereunder.

The charter of a corporation is its constitution, and gives it all the powers it possesses. Upon the taking effect of the amended charter, all prior legislation and all ordinances inconsistent with the provisions and not embraced within the scope of the saving clause were repealed.

Whether or not the council could legally elect Mr. Carpenter, in March, 1883, to the office of city attorney, the new charter then being in force, which provides that the mayor may fill vacancies which may occur in any elective office, until the same may be filled by election, it is very certain that that body possessed no power to authorize him to hold said office against one duly elected and qualified under the new charter.

The ordinance of April 5, passed two days after the election under the charter, assumed to abridge the terms of the city attorney and certain other officers who had just been elected, by providing virtually that those holding the offices under former elections should remain in office until the expiration of the full term for which they had been elected. This is in direct conflict with the provisions of the charter. It specifies the extent of the terms of the various officers to be elected, when the officers elected shall assume their duties, and when their terms of office shall terminate. Upon qualifying within twenty days of his election, the relator became entitled to the office of city attorney for two years, to end two years thereafter upon the election and qualification of his successor. This term could not be abridged by action of the city council, either by ordinance or otherwise.

The only other question raised which we deem it necessary to refer to, is the eligibility of the relator to the office of city attorney, he being at the time of his election thereto a state senator.

The constitutional provision relied upon as showing that he was not eligible is the first clause of section 8, article V:"No senator or representative shall, during the time for which he shall have been elected, be appointed to any civil office under this state."

It was held in Britton v. Stipler, 62 Mo., 370, that the mayor of the city of St. Louis was not an officer under the state, within the meaning of section 15, article IV, of the constitution of Missouri, which provides that: "No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under this state," etc.

No. 62-3.

We are cited to other cases, which are to the same effect, upon constitutional provisions similar to our own, viz: People v. Provines, 34 Cal., 520, and Santo v. The State, 2 Iowa, 165 and 220. These authorities are in point, and we have no reason to doubt their sound

ness.

We prefer, however, to rest the decision of the point upon the plain words of the constitution. It only prohibits a senator from being appointed to a civil office, not his election thereto.

A careful examination of all the various provisions of the constitution pertaining to offices of various kinds and grades, convinces us that the framers of that instrument did not employ the words elect and appoint as synonymous, but with due regard to the primary and proper significance of both words. Any one who will take the time to make a careful examination of the constitution will appreciate the force of this proposition by observing the accuracy of selection displayed in their use.

The relator not having been appointed to the office of city attorney, it is not important whether it be a civil office under the state or not. We are of opinion that the judgment of the district court should be affirmed, and it is so ordered.

SUPREME COURT OF NEW MEXICO.

LAUGHLIN V. COUNTY COMMISSIONERS OF SANTA FE COUNTY ET AL. Filed January 31, 1885.

TAXPAYER MAY MAINTAIN ACTION TO RESTRAIN ILLEGAL TAXATION.-A taxpayer in this territory may maintain a suit in chancery in his own name to restrain a threatened illegal disposition of public funds, in which he has a taxpayer's interest, or a threatened illegal taxation, by which his property might be imperiled.

COUNTY BONDING ACT OF 1872 NOT REPEALED. The county bonding act of 1872, providing for the levying and collection of a special tax, under its provisions, to aid in the construction of railroads, was not repealed by the general revenue law of 1882.

REVENUE MEANING OF TERM.-The term "revenue," when used with reference to funds derived from taxation, in the absence of qualifying words or circumstances implying a different signification, is confined to the usual public income from taxation.

TAXATION POWER OF COUNTY-LIMITATIONS ON.-In the absence of restrictions, express or implied, the power of a county to contract and to incur public indebtedness, implies the power to raise by taxation the funds needed for the execution of the former power. But an express limitation on the rate of taxation is not generally operative to prevent taxation for extraordinary purposes.

ERROR to the first judicial district court of Santa Fe county. The opinion states the facts.

N. B. Laughlin, for the plaintiff in error.

J. H. Knaebel and Gildersleeve & Preston, for the defendants in

error.

WILSON, A. J. The plaintiff in error filed his bill of complaint in the district court for the county of Santa Fe, of which county he is a property owner and taxpayer, praying for an injunction to restrain

the board of county commissioners of that county from issuing or delivering to the Texas, Santa Fe and Northern Railroad Company, or to its successors, assigns or order, any bonds, under the authority of a certain vote or election held in the county of Santa Fe on the eleventh day of August, 1884, by which bonds to the amount of two hundred and fifty thousand dollars appear to have been voted in aid of that railroad company by the qualified electors; and in case such bonds should be issued or delivered, then to restrain the board of county commissioners from levying or causing to be collected, under the provisions of the territorial statute, approved February 1st, 1872, any tax to pay the interest or principal of the said bonds as the same might become due and payable, according to the terms of any such bonds; and also to restrain the said railroad company from receiving the said bonds, and from receiving any money that may be directed to be paid on account of any tax that may be levied or collected according to the provisions of the same statute.

The bill is based upon the suggestion set forth therein, that the statute authorizing county aid to railroad corporations, laws, 1872, ch. 30, has, by means of the revenue act of 1882, ch. 62, been repealed, either in its entirety or at least so far as it authorizes, ib, sec. 4, the levy and collection of a special tax to meet the principal and interest of the voted bonds as they mature. The bill shows that all the proceedings had in relation to the voting of the bonds in aid of the railroad company have been in strict conformity with the statute of February 1st, 1872, and there appears to be no ground whatever for equitable intervention on the subject, unless it be that that statute has been impaired in its efficacy by later legislation. The defendants below demurred to the bili, controverting the legal proposition upon which it is founded, and denving its equities. The court below sustained the demurrer, and a final decree duly passed dismissing the bill upon the merits. From this decree the complainant below appeals to this court.

Since the decision of the supreme court of the United States, in the case of Crampton v. Zabriskie, 101 U. S., 601, no suggestion can be properly entertained in the courts of this territory against the right of an individual taxpayer to obtain relief by a direct suit in chancery in his own name, against a threatened devastavit of public funds in which he has a taxpayer's interest, or against threatened illegal taxation by which his property might be imperiled.

Acquiescing thus in the decision of a tribunal which is controlling in the territories, we are happily relieved from the consideration of a question of chancery jurisdiction which has given rise to much conflict of decision throughout the various states. It is contended by the plaintiff in error, that the express and obvious purpose of the revenue law of 1882, ch. 62, is to substitute its provisions for all antecedent laws, or parts of laws on the subject of revenue, and to repeal all previous laws regarding the raising of revenue, and, therefore, that so much of the county bonding act of

1872, ch. 30, sec. 4, as provides for the levying and collection of a special tax under its provisions, is thus expressly repealed, and the other parts of the same act are repealed by necessary implication, since it would be impossible to satisfy the indebtedness, thereby contemplated, by means of the one quarter of one per cent. ad valorem tax devoted to county purposes by the revenue act of 1882. If we could give to the revenue act in question, the broad construction contended for, we might well hold that no county in the territory can aid a railroad under the act of 1872, except so far as it can furnish aid out of what it can spare from its share, one quarter of one per cent. of the stated annual tax. But we are unable to yield our assent to this view of the scope and intent of the revenue act. That statute was evidently designed as a codification and amendment of pre-existing revenue laws. The statutes relating to the levying and collection of the regular taxes, such as designated the subjects of taxation, specified exemptions, provided the rate of taxation, the mode of collection, etc., as well as those relating to the subject of licenses, and which were only to be found scattered through the statute books for a considerable series of years, were grouped together, revised and amended in one general act in 1882. The legislative intent was to make that act thoroughly comprehensive respecting the several subjects with which it dealt, and this intent, quite evident from the very terms of the act, is only emphasized by the repealing clause which refers not only to all acts, and parts of acts "in conflict" but also to "all acts and parts of acts * regarding the raising of revenue," etc. It is very doubtful whether the last cited clause added anything to the effect of the previous repealing clause, and whether, independently of any repealing clause, the act might not well be interpreted as intended to embrace in one complete system the whole subject of ordinary revenue and licenses, and to operate as a repeal by implication of any non-included parts of the old law on the same subject: United States v. Tynen, 11 Wallace, 88. The fullness of the repealing clause relieves the act from any judicial doubt on this point, and thus accomplishes some purpose. In view of this manifest intent of the revenue act, it would be an unnatural and strained construction to hold that it contemplated other sources of public income than revenues, and licenses of the classes enumerated in its several sections, that is, such as arise in, and are required for the ordinary course of offici 1 administration. Courts have frequently had occasion to construe similar phraseology, and in such construction, they hold almost uniformly that the term "revenue" when used with reference to funds derived from taxation, is best interpreted, in the absence of qualifying words or circumstances implying a different signification, as confined to the usual public income from taxation: U. S. v. Norton, 91 U. S., 563; Fletcher v. Oliver, 25 Ark., 289; Harper v. Commissioners, 23 Ga., 566. When we consider how minute a catalogue of subjects is included in the revenue act in question, it is impossible to believe that the legislative mind intended, while ex

*

*