State v. Kelly

Citations

• 27 N.M. 412
• 202 P. 524

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p> [1] A prosecution for obtaining .money by false pretense cannot be predicated upon false testimony given in a suit in court for the recovery of money or property. P. 417.</p> <p> [2] Code 1915, c. 91, which makes the Attorney General, the state auditor, and the state treasurer a “board of loan commissioners of the the state of New Mexico,” and invests such board with power to ascertain and determine the debts and liabilities of the territory of New Mexico and the debts of the counties thereof which were valid and subsisting on January 20, 1910, and which were assumed by the state of New Mexico under the Constitution, and providing for the payment or refunding of such indebtedness by the issue and sale of bonds or otherwise by such board, does not confer judicial power upon such board in a constitutional sense, and such board does not constitute a court, and a finding or judgment by such board under such statute is not a judicial judgment or decree. Such board is an agency created by the state for the purpose of auditing, passing upon, and allowing claims against the state under the statute, and false pretense can be predicated upon a claim presented to such board where the facts warrant. P. 417.</p> <p> [3] A duty to be performed is none the less ministerial because the person who is required to perform it may have to satisfy himself of the existence of the state of facts under which he is given his right or warrant to perform the required duty.- P. 421.</p> <p> [4] What might be a judicial proceeding in determining controversies between private individuals is not necessarily such where'the interests of the sovereign state are involved. The state can adopt whatever mode or method it elects to determine whether it shall become liable and discharge a given obligation. It can select whatever1 agency it sees fit and proper to pass upon the question and provide that upon the determination of such agency the claim shall be paid, and the i