A petition for rehearnig has been filed upon the ground in substance that there is no law in New Mexico by which cities may adopt a charter containing the referendum provision quoted in our opinion, except chapter 121, Laws of 1919; whereas in fact the city of Albuquerque was organized and existed as a municipal corporation during all the times of the controversy in question, under chapter 86, Laws of 1917, of which this court should take judicial notice, that according to the opinion of the court in this case, there is no authority for such referendum.
It was said, in substance, in our opinion in this case, that the fact that the city of Albuquerque had elected to be governed by the terms of chapter 121, Session Laws of 1919, was necessarily inferred from the allegation that the referendum provision quoted in said opinion was a part of the city's charter; that there was no law in New Mexico by which cities may adopt the commission form of government with a charter containing the referendum provision quoted, except said act of 1919.
This statement, it is contended, was a determination that the present charter of the city of Albuquerque (if adopted under chapter 86, Laws of 1917, as stated by appellees in their brief) could not legally contain such referendum provision — a conclusion that we find unnecessary to reach in deciding the issues made, and one we did not intend to, and do not, announce.
[13] The courts of this state will take judicial notice of public acts of the state Legislature creating, chartering, and conferring powers upon municipal corporations, and of all general laws relating thereto. It will not take judicial notice of the fact of incorporation of a particular city under such laws in the absence of a statute requiring it; and this is necessarily true where, as in New Mexico, there are several acts under which a city may be incorporated. 23 C.J. "Evidence," *Page 589 § 1882; City of Hopkins v. Railroad Co., 79 Mo. 98, 1 Jones on Evidence, § 115; Birnie v. La Grande, 78 Or. 531, 153 P. 415, 1 McQuillen on Corporations, § 155; Doyle v. Village of Bradford,90 Ill. 416; Hambleton v. Town of Dexter, 89 Mo. 188, 1 S.W. 234. In Missouri and some other states statutes requiring the courts to take judicial notice of the organization of all cities have been enacted, since which a different rule applies there. Jackson v. Railroad Co., 157 Mo. 621, 58 S.W. 32, 80 Am. St. Rep. 650. This court will not take judicial notice of the fact that the city of Albuquerque was organized under any particular one of the several acts under which it could be chartered.
It has heretofore been determined by this court (City of Albuquerque v. Water Supply Co., 24 N.M. 368, 174 P. 217, 5 A.L.R. 519) that whether chapter 86, Session Laws of 1917, is or is not constitutional, the city was at least a de facto corporation, and that its existence as such could only be questioned by the state in a direct proceeding instituted by the Attorney General for that purpose; and until such adjudication, all acts done and contracts made by such defacto municipality were valid and binding upon it and the property within its limits as though its officer were de jure officers of a de jure corporation. It is immaterial whether or not the city was organized under chapter 121 of the Session Laws of 1919 or chapter 86 of the Session Laws of 1917, if the charter contained the referendum provision quoted. The material fact is that the city's charter does contain such provision and this fact is sufficiently alleged, provided such referendum is constitutional and operative.
Messrs. Hanna and Wilson, attorneys of this court, have been permitted to file a brief as amici curiae. They have advanced the proposition that the referendum provision alleged to be a part of the city charter of the city of Albuquerque violates the Constitution of this state in that the people of Albuquerque have usurped to themselves legislative authority that belongs alone to the Legislature of the state. It is claimed that, even *Page 590 admitting chapter 86, Session Laws of 1917, constitutional, yet the general authority authorizing the city to create its own form of government was necessarily limited by the Constitution, which is violated by the adoption of the referendum provision, purely legislative in its nature, and which therefore could be exercised only by the Legislature itself, or at most by specific legislative authority. This question has not been raised by any party to this action, either in the court below or in the Supreme Court. It is not mentioned in the briefs of either of the parties, in the assignments of error, nor in the motion for rehearing.
[14] Ordinarily this court will not review a question not raised in the court below (State v. Ellison, 19 N.M. 428,144 P. 10), or presented to the Supreme Court by assignment of error (Weggs et al. v. Kreugel et al., 28 N.M. 24, 205 P. 730); or one not argued or presented in the briefs of the parties (Hawkins v. Berlin, 27 N.M. 164, 201 P. 108; Armstrong v. Concklin, 27 N.M. 550, 202 P. 985), or a new and original question raised on motion for a rehearing (Ellis v. Citizens Nat. Bank, 25 N.M. 319,193 P. 34, 6 A.L.R. 166), except in a case where the judgment of the district court is inherently and fundamentally erroneous (Baca v. Perea, 25 N.M. 443, 184 P. 482; Crawford v. Dillard, 26 N.M. 291,191 P. 513).
[15] Constitutional questions, not raised in the regular and orderly procedure in the trial, are ordinarily rejected (12 C.J. 786), unless the jurisdiction of the court below or that of the appellate court is involved, in which case it may be raised at any time or on the courts own motion. State v. Burke, 175 Ala. 561, 57 So. 870.
[16, 17] Only persons claiming to be adversely affected are authorized to question the constitutionality of an act (Asplund v. Alarid, etc., 29 N.M. 129, 219 P. 786, 6 R.C.L. "Constitutional Law," § 87), and particularly is this true of amicus curiae whose authority *Page 591 is to call the court's attention to facts or situations that may have escaped consideration. He is not a party and cannot assume the functions of a party. He must accept the case before the court with the issues made by the parties. In re MeClellan's Estate v. State, 27 S. Dak. 109, 129 N.W. 1037, Ann. Cas. 1913C, 1029; Farmers', etc., Co. et al. v. Rio Grande Canal Co. et al.,37 Colo. 512, 86 P. 1042; New York Life Ins. Co. v. Hardison,199 Mass. 190, 85 N.E. 410, 127 Am. St. Rep. 478.
[18] The constitutionality of the provision in question is not contested by an authorized person, and jurisdiction of the court is not involved. Cram v. Ry. Co., 85 Neb. 586,123 N.W. 1045, 26 L.R.A. (N.S.) 1028, 19 Ann. Cas. 170, and note at page 175; 12 C.J. "Constitutional Law," § 217. Under these circumstances, this court will not raise the question on its own account, and amici curiae have no authority to do so. Upon another trial, pleadings may be amended and new issues made if the parties are so advised.
Finding no reason to change our former conclusion, we adhere thereto. The motion for rehearing is denied, and it is so ordered.
BICKLEY and WATSON, JJ., concur.