Where the decision of the supreme court of a territory is based
upon the construction of the territorial statute involved, and not
upon the power of the legislature to pass it, an appeal does not
lie to this Court, if the amount in controversy is less than
$5,000.
A decision of the territorial court as to who had the right to
an office which depends on whether the office was or was not
vacant, and whether or not an appointment was made before the
statute involved took effect, depends upon the construction of, and
not the power of the legislature to pass such statute; such a case
does not involve the validity of an authority exercised under the
United States, and an appeal does not lie to this Court if the
amount in controversy is less than $5,000.
Appeal from 94 P. 947 dismissed.
The facts are stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
The appeal involves the same questions as those that have just
been decided in No. 116,
Albright v. Sandoval, ante, p.
216 U. S. 331. In
the latter case, the right of Sandoval to recover the fees and
emoluments of the office of assessor of Bernalillo County from
Albright is decided.
The case at bar is another action for additional fees received
by Albright. The judgment rendered was for the sum of $1,688.84,
which, with interest, amounted to the sum of
Page 216 U. S. 343
$1,813.25. The judgment was affirmed by the supreme court. 94 P.
947. This appeal was then taken. A motion is made to dismiss it on
the ground that the amount in dispute does not exceed $5,000. To
this it is replied that the case involves the validity of an
authority exercised under the United States in the passage of the
laws by which, it is contended, Albright derived a right to the
office.
The appellant supports this contention by saying that his answer
in the trial court raised the
"legal propositions of the power and authority of the
territorial legislature to pass the acts creating Sandoval County,
and to vest the power of appointment in the County Commissioners of
Bernalillo County,"
and also contained a full record of the
quo warranto
proceedings in which the same questions were raised. But, by
reference to the opinion in No. 116, it will be seen that the
supreme court rested its decision upon the construction of the
statutes, not upon the want of power in the legislature to pass
them. As to the acts themselves, the supreme court said:
"It does not seem necessary or profitable in this case to
consider the question of the power of the legislature, for the
reason that however adequate the power of the legislature might be,
if the legislature did not see fit, nor intend to exercise the
power to declare the office of Assessor of Bernalillo County vacant
by the legislation enacted, the legal right of the incumbent
elected by the people of the county is not affected by the
legislation, and no vacancy existed, to be filled either by
election or appointment."
As to the vacancy alleged to have occurred by the nonresidence
of Sandoval in Bernalillo County, the court said that it was unable
to find any provision of the statutes "requiring residence in the
county as a qualification to hold the office of assessor." And
further said that it was hence led to the logical conclusion
"that, even if it was admitted that Sandoval had been for years
and was still residing in what would become Sandoval County when
the act took effect, that fact would neither disqualify Sandoval
from holding his office nor
Page 216 U. S. 344
have the effect of rendering the office vacant."
And again:
"The legislature acted upon a mistaken view of the law, the
result of which was to provide for the election of an officer to an
office not vacant, but which, on the contrary, was in the
possession of a legally elected and qualified incumbent."
It was also decided that Albright's appointment was made before
the law took effect, and necessarily was illegal.
Upon the second appeal of the case, the court did not enlarge on
the ground of its decision. 79 P. 719. It follows that as
Sandoval's right to the office and Albright's want of right were
based upon the construction of the statutes of the territory, not
upon power of the legislature to pass them, the motion to dismiss
must be granted, and it is
So ordered.