Citation. 31 N.M. 641, 249 P. 1074 (1926)
Facts. Under the Ferguson Act of 1898, 30 Stat. 484, Congress granted territorial New Mexico a series of land grants for enumerated public purposes, among them 500,000 acres “for the establishment of permanent water reservoirs for irrigating purposes,” with the proceeds to be held in a separate fund usable only for that purpose. In 1925 the legislature directed that the income of that fund be spent on the State’s Rio Grande litigation. Asplund, a citizen and resident taxpayer suing on behalf of himself and all other taxpayers, brought suit in district court against the Governor, the state auditor, and the state treasurer to enjoin the expenditure as a breach of the congressional trust. The district court sustained a demurrer and dismissed the complaint. Asplund appealed, and the Attorney General moved to dismiss the appeal on the ground that a private citizen had no capacity to bring the suit at all.
Holding. The court denied the citizen-taxpayer standing and dismissed the appeal. Its first opinion, filed December 21, 1925, had gone the other way and found a breach of trust; on rehearing the court withdrew that opinion, sustained the Attorney General’s motion, and let the dismissal below stand. 31 N.M. at 667. Three grounds carry the result. First, section 10 of the 1910 Enabling Act places the duty of enforcement on the Attorney General of the United States, and its disclaimer that nothing in the Act limits the power of the State or of any citizen to enforce it “conferred no power, and imposed no duty upon [the] state or citizen” — so “neither in the Enabling Act nor in the Constitution do we locate the power of a citizen and taxpayer to sue for the enforcement of the trust provisions,” id. at 646; see also id. at 665-66. Second, a citizen has no judicially cognizable right to sue merely to vindicate the Constitution: “The constitutionality of a statute is not in itself a cause of action, nor a head of equity jurisdiction,” and such right as a citizen has “is political, enforc[e]able only as other political rights are maintainable,” id. at 650, 650-51. Third, New Mexico’s settled rule permitting a taxpayer to enjoin the misapplication of municipal funds rests on an analogy to the private corporation, and that analogy “breaks down between the municipal corporation and the state,” id. at 665; extending it to suits against a coordinate branch of the state government would be “usurpation of power not conferred,” id. at 664. The court squarely rejected the express-trust argument — donor the United States, trustee the State, beneficiary the citizens — reasoning that “[w]hen a trust is committed to a state, it must be in view of the fact that the trustee is constituted with three co-ordinate governmental branches,” id. at 665-66, and that while the State’s possession of trust property “is a public trust. So it is[,] … that does not entitle the individual to resort to equity in his own name and right to enforce it,” id. at 666. Nor did the Attorney General’s own posture change the analysis: “Even if the Constitution and statutes have failed to provide for any remedy, it is not for the courts to create one,” id. at 663.
Why it matters. Asplund is the field’s leading early statement of the restrictive answer to the question of who, beyond the attorneys general, may sue to enforce an enabling-act trust — and it is frequently described the other way. It is not authority for beneficiary standing. It is the case a state defendant cites when it argues that the federal enforcement clause is the citizen’s ceiling rather than his floor, and its reasoning is the ancestor of the modern channeling rule. Three features give it continuing weight. It reads section 10’s non-exclusivity clause as a disclaimer that grants nothing rather than as a reservation that confers something — the precise reading Judge Bustamante would later protest in Forest Guardians v. Powell. It separates the political right to insist on constitutional government from the judicial right to sue, and assigns the citizen only the first. And it locates the enforcement of a trust committed to a State in all three branches of that State, which is why the court could describe the arrangement as a genuine public trust and still deny the individual a forum. The New Mexico Court of Appeals took the question up again seventy-five years later in Forest Guardians v. Powell, 2001-NMCA-028, 130 N.M. 368, 24 P.3d 803, which describes Asplund as the decision that last addressed it and reaches the same restrictive result by a different route.
A caution on the record. The case is a Ferguson Act reservoir-fund case, not a common-school-fund case; the trust construed is the one the Enabling Act imposed, and the court passed on no question peculiar to the school lands. The opinion is also internally inconsistent about which section of the Enabling Act carries the held-in-trust language, quoting that language as “Section 28” while citing “Enabling Act, § 10” for the Attorney General’s duty. The copy of the opinion held in the Library’s collection carries New Mexico Reports pagination only; no pin to 249 P. can be produced from it, and none should be represented as verified.
Cited in. Forest Guardians v. Powell, 2001-NMCA-028, ¶¶ 1, 7, 15 (New Mexico’s standing baseline, and the source of the “constitutionality of a statute is not in itself a cause of action” rule); and, in the broader literature, the line of authority holding that a public trust committed to a State does not by itself open the courthouse to an individual beneficiary.
Limits of this annotation. This entry is a scholarly summary, not a Shepardized citation analysis, and is not a substitute for current legal research. Readers should verify the case’s continuing validity in their jurisdiction before relying on it in litigation. Last updated: 2026-09-03 (rebuilt against the full opinion on rehearing held in the Library’s collection; the prior entry stated the holding backwards).
