*1 BRICE, McGHEE, accident, J., SADLER, was un- C. at fatal .the time of the liquor. COMPTON, JJ., intoxicating the influence concur. der ruling was court’s say cannot that the We erroneous, though
prejudicial, because even questions the defend-
the same asked were the same
ant on His direct examination and given by him.
answers were
C.J.
Appeal
2951, C.J.S.,
&
page
Section
“Q. were Did tell Mr. you taken I him I drinks.
drunk ? A. had told you taken?
“Q.. many How had drinks
A. I two drinks Cosme’s. took
“Q. you had to Now that what had A. occurred?
drink accident before
Yes.
[*] [*] [*] [*] =* [*] time,
“Q. you at that Were sober you I was sober.”
were A. drunk? circumstances, think we
Under these Talamante, was harmless. State v.
error
50 N.M. error,
Finding no judg- reversible affirmed,
isment and it is so ordered. *2 hospital
“Respondent that admits by Re- bond election held and conducted conformity Chapter lator full was in of the New Mexico Laws Chapter 7, 6, Chapter 15, New Article Annotated, Compila- Statutes Mexico tion, Chapter 20 the Laws of New Mexico of the results of Brown, Atty., Harry Ralph Dist. M. properly same were canvassed the re- Atty., Robins, both of Esq. Asst. Dist. D. duly published sults as provided law. Albuquerque, for relator. “Respondent, answering further and re- . n McCulloh, Atty. Robert Gen. and C. C. sponding to said Writ Man- Alternative Gen., respond- Atty. Wollard, Asst. V. damus, duty admits that it a ministerial ent. approve his office to as to form all prerequisite valid as a issues Hannett, George both T. Hannett and A. of same the State of New Albuquerque, amici curiae.
Mexico. BRICE, “That the Writ of Chief said Mandamus shows Justice. upon its face that bonds issued the under of mandamus original This is an action proceedings had herein are void for the compel the re- court to brought in this Chapter reason that 148of the New Mexico Attorney McCulloh, Clyde C. spondent, Laws of is unconstitutional insofar New Mexico of the State General county as it authorizes a to issue general County Bernalillo approve bonds obligation purpose the equip- for N.M.Laws Ch. as authorized issued county hospital ping wards, and isolation constructing purpose of purchase the necessary for land ward, county hospital with isolation therefor, as same Article violates Sec- ward, hospital and isolation equipping such tion 10 of New Mexico Constitution on which con- the land acquiring which limits the which coun- necessary buildings. An alterna- struct ty may borrow that of application was issued writ tive necessary public buildings. Attorney General was relator, in which “Wherefore, respectfully it submitted approve the bonds forthwith commanded the Alternative Writ of Mandamus has why he not done so. show cause toor return, should be dissolved for the reason afore- has filed his Attorney General The said.” he states: Mex- of New particular the State treasurer commissioners county, ico this issue highest asking was the bidder that a vote ques- taken on the be bonds, buy proposition he them tion but has refused to or of constructing approved by the purchasing unless a hospital and until and isolation ward Attorney required by be- General law acquiring land therefor, setting may purchase fore them. general the state forth in object terms the of such petition and the amount of bonds asked provisions N.M.Laws of Ch. for, be duty voted it shall be the which authorize the issuance county board of commissioners of such own, county purchase, construct, bonds “to petition to which said be operate including hospitals, maintain and sented, (10) days within ten after wards, purchase nec- isolation and to presentation, to call an election be held * * therefor; essary as stat- lands sixty days within (60) thereafter such act, ined title are as follows: county, and give shall notice of such elec- shall “Section 1. All counties by publication tion once week for least own, construct, purchase, main- (3) three any consecutive news- weeks hospitals, operate including iso- tain and paper published county, in such wards, purchase lation and to notices shall set forth the place time and land therefor. of holding election, such hospital isolation ward proposed pur- to be built or may, All “Section 2. such counties chased, and the acquired, be operating maintaining * * * which bonds are voted for. wards, levy hospitals such isolation A election provided may as above also in the and collect taxes same manner called commissioners, general purposes taxes for other are levied any petition, without after said commis- and collected such counties. sioners have made a resolution calling such All “Section such counties shall have election, which resolution shall set forth issue bonds for the construc- object of the election and amount equipping tion or *4 bonds to be issued. wards, hospitals and for isolation the purchase of necessary therefor. [*] [*] t- hereby “Section 9. All such counties are petition signed 4. Whenever
“Section t0‘ all acts regu- authorized do' all make (200) quali- less than two hundred by not may expedi- lations be or any county in of this state fied electors of promotion this Act.” presented county ent for the to the board of shall be house, jail, hospital, forth bridge setting con- the or as to question raised There no peti- object general the of such in terms Ch. stitutionality of Article of be tion and the amount of bonds asked N.M.Laws by Ch. Sts.1941, amended for, duty the board the of great voted shall be provided law original The county to county of such commissioners county bonds issuance of detail may with- petition presented, which said courthouse, jail, building of days (10) in ten presentation, after election conducting of bridges; sixty call an election within to be held electors qualified approval their bond, (60) days county, thereafter in such form of county, the of the give publi- shall such notice such election for which rate, term interest (3) cation three once a week least issued. bonds any newspaper consecutive weeks in pub- the words of 1947 added amendment county, lished in such which notices shall “court- the words hospitals” after “and place set forth time and 15-4601, bridges” Sec. houses, jails and house, election, jail, bridge or court now reads: section after which hospital proposed to be and which built county commissioners “The boards bonds are to be voted for.” hereby and em- authorized state are this The original act is not otherwise amend- county, of such to issue bonds powered ed, except to applicable add some sections necessary, that four greater any sum hospitals. question No is raised all other bonded cent, inclusive (4) per right county to erect a the assessed value indebtedness, hospital building to be used as a if it county, for the of said property taxable paid provided by built and for as act. building courthouses, jails, All proceedings hospitals.” bridges and County Commissioners Bernalillo Coun- by adding was amended 15-4604 Sec. ty provided for the issuance of “for places, hospital” in two “or so that words county the construction of a hospital with here, section material now part of that wards, hospital isolation equipping such reads: ward, acquiring isolation the land therefor” petition signed by etc. less “Whenever qualified (200) question ballot hundred electors two
than was qualified in this state any shall be submitted electors was in form as follows: board commis- sented sioners, asking that vote be taken on the Election for Bernalillo County “Bond proposition court New Mexico
215 legislature’s construction, the issuance of bonds of the Coun- was the FOR and we Bernalillo, ty the total sum of satisfied that it is correct. Hutcheson Atherton, $1,000,000.00 44 construction of a N.M. 462. Ward, Hospital County with Isolation have been pur- bonds issued for Hospital and such Isolation equipping pose of “constructing equipping and Ward, acquiring the therefor. and land hospital ward, and isolation for and the issuance of bonds of AGAINST the purchase land therefor.” Is in the Bernalillo total sum purpose (or purposes) pro- within the $1,000,000.00 for construction hibition of Sec. 10 of Art. 9 of the state County Hospital with Isolation Constitution, provides county “no Ward, Hospital equipping such and shall money except for borrow Ward, acquiring the Isolation and land erecting necessary public buildings therefor.” 5j! % ‡ » (cid:127)> Spanish. appearing English both in phrase then is whether the for the issuance The vote was “erecting necessary public buildings” as against it. used Sec. 10 of Art. 9 of the Con- state State Consti- Article 9 Sec. 10 of stitution,' purview includes within its reads: tution county hospital “construction of with ward, isolation equipping hospital such except “No shall borrow ward, acquiring isolation necessary pub- therefor.” repairing constructing or lic bridges, and in such cases
public roads We stated State ex rel. Ward proposition create such after Romero, 125 P. 621: been submitted debt shall duty is the of this interpret “It court to paid qualified who electors provisions of the the various during preceding property therein tax spirit carry out of that instrument. by majority those year approved permit legal We should technicalities No bonds issued voting thereon. niceties to and subtle control and thereby fifty for more than purpose shall run destroy the framers what of the Consti- years.” intended. tution opinion that a coun areWe spirit intent necessary public building is “a “Where the in- ty hospital clearly ascertained, building,” phrase is used in Sec. 10 strument can effect as that it, given strict letter Constitution. This should this state’s Art. 9 of Greenman, leads execution.” if the letter into not control should Juilliard clearly 28 L.Ed. not intended.” U.S. S.Ct. incongruous results harmony rules This *6 by the Assembly “An as laid down of the General should
construing constitutions act States, by implication. and not A Supreme be set aside consti- Court the United tution not a con- states. should receive technical courts of other struction, ordinary as were instru- if power’ occur “The words ‘concurrent interpreted ment or statute. be It should In a an amendment to in Constitution. carry principles general to out the so as n naturally instruments words framing such government them.” arid not defeat comprehensive sense employed in a are Elections, State 180 v. Jenkins than of expressive rather general ideas 346, 169, 349, 14 A.L.R. N.C. 104 S.E. narrow dis- thought finer or shades 1247. dignified simple diction The tinctions. interpretation “The of constitutional readily lend a not Constitution does principles must not too literal. We be There the itself to technical definition. machinery gov- must that the remember principles of governmental terse statement if it ernment would not work were may plain be looked for.” language joints.” play a little in its Bain allowed Nickerson, 236 Mass. v. Commonwealth 499, Pinson, 282 51 Peanut Co. v. U.S. 273, 279, 1568. N.E. 10 A.L.R. 128 482. S.Ct. 75 L.Ed. constitution, establishing a frame of “A “erection” as word used declaring government, prin- fundamental comprehensive is so used creating sovereignty, a national ciples, specific given power No coun sense. was ages, endure be and intended to to yet jails; build ties courthouses and to adapted various crises of af- human absolutely they necessary to func are interpreted to fairs, is not political tioning sub private The con- of a contract. strictness power of the state. The to erect division States,-by apt the United words stitution necessary buildings these is futile unless general description, or designation purchased land on which to can be erect powers granted the outlines of the marks them; utterly bare is use legislature; but national it does not equipped pur unless for its less intended undertake, precision with the and detail pose. laws, a code of enumerate sub- powers, those specify sense, then, comprehensive all divisions may means which power necessary public building carried
217 124; power purchase Co., Territory implied Trust 8 1 Cir., F.2d includes necessary it, Baxter, land on which and ex supra; rel. Moon to erect Overholser v. Aired, it so that it can equip supra; be used v. State ex rel. Davis im- 809; for which it built. It Barber, is 139 Fla. 190 So. material be other lawful tfyat Kura, there Oklahoma County Excise Board v. securing pur- for such a means funds 113; 189 203, 115 Okl. Board of P.2d pose. buildings may Public be built from Co., Com’rs v. & 179 N.C. Malone levies, re- tax but this does foreclose 552; Dist., 101 S.E. Hendricks School sort used to secure the method here Wyo. 204, 970; Jewett funds. Dist, Wyo. P.2d 546. The one decision holds that passed courts power purchase suitable and erect site§ that the unanimous purposes does not school implies public building to erect a implied power equip include the Dist., buildings, Lamro, Grabe v. Etc. on Dewitt San Fran erect it. which to S.D. N.W. cisco, 289; ex rel. Post v. State Cal. *7 Education, 52, W.Va. 76 S.E.
Board of 71 opinion among There is a difference of 1238; 127,Ann.Cas.1914B, Territory rel. ex equipment the courts as to the character Baxter, 16 83 P. 359, Overholser Okl. v. Florida, Oklahoma, authorized. The North 709; 487, Shiedley Lynch, 8 95 Mo. S.W. v. Wyoming Carolina courts affirm the 434; Aired, Tex.Civ.App., 277 Moon v. power equip buildings, to but limit 787; Meyers City, v. 323 Mo. S.W. Kansas equipment to that which becomes a 200, 900; State ex rel. Wahl v. 18 S.W.2d as part building, such desks school of the 655; 45, Hudgins Speer, 284 223 S.W. Mo. buildings, are fastened to floor. Dist., 312 Mo. School Mooresville Cons. v. power The other cases cited hold that the contrary 1, 278 769. S.W. No case to public building erect a includes the im- to have and we has been cited counsel plied power equip to furnish it that so found none. it can be used it is erected. are, exception, one
The courts implied following authorities are cited there is that unanimous upon bearing question counsel here power buildings where equip public to Marshall, Jay ex State rel. power Hudgins considered: given is to them. 648; 136, Dist., P. supra; 13 Mont. Alexander v. Cons. School Mooresville 1056, Phillips, 503, 254 Ariz. P. Special Dist. v. Central School Midland provision is 227 Mo. it. The fact that similar 244; Dist. A.L.R. Judd necessarily specific, establish 783; ex rel. more does 921, State App. 58 S.W.2d part 81 an intent on makers Smith, Mo. Bldg. Comm. v. Constitution limit use of the funds S.W.2d without bare erection aof calls attention Attorney General equipment. site or Constitution, of the state of Art. 9 Sec. 11 which reads: merit, If the au- contention has then the thority granted not include the would money, district shall borrow “No school purchase land which to erect except building; that is included buildings purchasing furnishing school Sec. 11 of but is absent from Sec. Art. in such cases grounds, school They fall of Art. 9. must stand or create the debt proposition to when together, if intent of the Constitution of such submitted to a vote been shall have makers is to measured these differ- the district are qualified electors ences. No seems to member of this Court school real within such estate owners purchase doubt the on which power to voting those on district, hospital; build the nor have found we in favor of have question shall voted ' any opposed. decision that is school district No creating such debt. in an amount indebted shall ever become Comity Nothing in Tom v. Board of said on assessed centum per six exceeding Com’rs., 43 N.M. 92 P.2d property within the taxable valuation of State, 43 N.M. Com’rs. district, by the as shown such school opposed we to what assessment.” ceding general stated herein. that as the argues with He reason opinion We that authority specific gave makers implied authority expend Relator has the buy upon which site school districts proceeds out of bond issue equip them to erect school purchase funds issues, out of hospital, proper site on which to erect the that it was not conclude reasonable to equipment and install rea *8 by include Sec. of Art. 9 to intended sonably necessary the use of the build by re implied powers here claimed hospital. modern ing as a We are not the force lator. unmindful conclusion that It is our bond argument; cogent issue
of this
but the
reasons
questioned
Respondent
valid and that
outweigh
far
stated for
otherwise
approve it,
and to that end the
“furnishing”
erected,
should
for
permanent.
by
writ will made
made that
intent clear
removing
it from the
of inference.
field
But as to
It is so ordered.
counties, they made their
equally
intent
clear
omitting
legislative
authori-
COMPTON, JJ.,
concur.
LUJAN
zation conferred in the case of school dis-
tricts. We call
to mind
rule
cardinal
McGPIEE,
(dis-
SADLER and
Justices
of construction that the mention of one
senting).
thing
(expressio
another
excludes
unius
beyond previous
We
deci-
go
need
est
alterius).
exclusio
Under
applica-
its
,own
pri-
sions of
court to settle the
our
tion
from
withheld
legislature
mary question
presented for decision
payment by
to authorize
equip-
counties for
appeal.
the record
Tom Board
on this
furnishings
ment and
from the
Commissioners,
County
43 N.M.
issued to
buildings.
County
92 P.2d
Com-
applied
Board
We
this rule of construction
State,
frequently
missioners
P.2d
variety
and in a
of situations.
Territory
Ortiz,
5;
1 N.M.
Thurman
Grimes,
972;
35 N.M.
In
P.2d
re
strongest
concede that the
Atchison,
Ry. Co.,
T. & F.S.
37 N.M.
argument
approval
against lending
raised
918; Atchison,
Ry.
T. & F.S.
Co.
to the bond issue in
on a
arises
Corporation Commission,
v. State
43 N.M.
n comparison
of Arti-
of sections
and 11
503,
It thus framers n of the constitution intended legislative issue void where the notice held the bond provide funds in school districts to election authorization borrow *9 jail The- “erecting” courthouse stated ion in former cites this one. and a case “erecting, re- being issue was void outside issue was to used held existing court- an modeling repairing” constitutional authorization. The and Obviously, no- Why? put, 94 P.2d because the was as follows N.M. house. [43 that some of informed the electorate tice 516]: proceeds issue would be of the bond question presented “The sole is whether purpose of
used for the unauthorized IX, provisions not under or of Article Speaking repairing.” and “remodeling 10, of control- Sec. the Constitution and Bickley, we through the late Chief Justice ling statutes can issue counties 292, 92 P.2d said 169]: [43 court house.” remodeling a defective notice are “The resolution and itAnd was answered thus: they indicate that ambiguous, in that on- expression “The the limitation used for will be the bonds money to borrow jail, an author- house erecting a court power to erecting buildings excludes funds; at same use of ized repair remodel, alter or borrow remodeling used for will be that time already existing, unless these building existing court house and an repairing processes in fact erection of a. amount jail, an unauthorized use.” building.” words, “erecting” the court- In other present interesting It is note that constitutional jail were within house and prevailing' Justice, Chief author authorization; “repair- “remodeling” and opinion bar, was a dis- in the case at lone exclu- Expressio est not. unius ing” were mentioned. senter in each two cases alterius. sio “remodeling” and it that Can be said opinion building is less- “repairing” existing in another case Again, an an - language indigenous specific thing of the germane the same dealing with or authorized, viz., building, constitution, “erecting” same than handed down newly- day, “furnishing” “equipping” and written the' term, the same is on Indeed, viz., court, Board of think not. one? We member constructed same State, supra, impressed we “remodel” that County Commissioners we squarely applica way on an existing in a “repair” building decision an rested rebuilding of construction that amount the rule not does tion anew, nearly ap- “erecting” another. thing of one excludes thus more mention just proximates the latter end. the one attainment of is unlike dis The case Indeed, opin merely “equipping” “fur— quoted from. than does cussed and And, building. are, exceptipn,” “The newly courts with one erected nishing” say separate seen, by majority, two deci- “unanimous yet, as we day, implied power we held that there equip public on the same is rendered sions buildings where given issued for proceeds of bonds them.” expendable “remodel” statement cita- followed were tion of a pretentious one. somewhat “repair” existing list *10 However, all. cases—nine in when classi- process of rea- Through logic or what fied according jurisdictions repre- they then, spending justify are we soning, only sent states and one case six federal equipping money furnishing and Circuit, from the 8th being two decisions newly building? erected How we are a included in the citations from each of say remodel” is not erect” but “to “to two states of Oklahoma Wyoming and prevailing “to erect”? The equip” “to is up make aggregate of nine. The opinion satisfactory no answer furnishes majority concede that cited the cases inquiry. enough pertinent It is not this Florida, from Oklahoma, North Carolina say: Wyoming County and Excise —Oklahoma Kurn, 113; 203, Board 189 v. 115 Old. P.2d force of unmindful “We are 706, State rel. Davis v. Barber, ex 139 Fla. cogent argument; but reasons this 809; 190 County So. Board of Commis- outweigh otherwise far stated Malone, 110, sioners 179 v. S.E. N.C. provision fact that a similar is it. The 552, District, and v. Wyo. School Jewett necessarily specific, does not estab- more 277, equipment pur- 546—confine P.2d part lish an intent on the makers chasable with borrowed as to such limit the use of the permanent is of a character becomes building the erection funds bare part when incorporated equipment.” without site or we therein. When subtract from the cases dispose two and to of the decisions of support on for those relied from the strongly challenging correct- court so states the majority conceded con- as majority in these ness of the conclusion “equipment” purchasable fining to that cryptic lines: permanent nature and which would fixtures, classify there remain them as “Nothing said in Tom v. Board Coun- position support their from decisions Commissioners, ty 92 P.2d 292, 43 N.M. represented jurisdictions, three 167, County Commissioners Board Hudgins v. Mooresville Cons. cases State, op- v. is District, 312 Mo. posed 278 S.W. to what have stated herein.” School we S.W. have the but Tex.Civ.App., 277 courts of two Aired, Moon states, Missouri, Dist., Hudgins Dist. Cen- School Special Midland Aired, supra, Texas, Cir., supra, 126. And Moon v. Co., 1 F.2d Trust tral being (the last mentioned decision we withdraw three cases these from case, believing appeals) against intermediate it court federal last mentioned along with decisions aligns cited above from states itself nearly more Florida, Oklahoma, Carolina, which confine North mentioned jurisdictions Dakota, certainly, part Wyoming of South becomes to such “equipment” the United Appeals men- States Circuit Court of federal case In the building. Circuit, seemingly, 8th denying tioned, court said: right course, here claimed. Of ship equip- rigging of a "Now if jurisdictions cases these from ad- desks, rostrums, ventilating why ment, cited, namely, ded own two our heretofore escapes, and devices, tubular fire fans and County Commissioners, Board Tom v. outfitting a many articles used other supra, Commissioners fact, equipment? be called schoolhouse State, supra, strongly which we contend all of these knowledge that common support position. our implication, yet when equipment, called articles are then; reading arising parts they become once installed opinion support it has the vailing all ‘lienable building. They are *11 authority in weight the of approving the in connec- being when considered articles’ purchase, from of the sale of and material- liens mechanics tion with equipment bonds, of all kinds essential buildings.” the construction men for operation hospital, the of a first class to Independent Lamro See, also, Grabe v. thoroughly repudiated by analyzing so District, 579, 53 S.D. Consolidated weighing authorities shall argue the that we by approvingly this 697, cited 221 N.W. phase the no this case further. County Tom Com- v. Board court not unmindful that We are the courts Coun- supra, Pottawatomie missioners, question passed have the on Co., Pipe Line Standish ty Excise Board unanimous, by as stated the majority, 119, 202, 115 as additional P.2d Old. holding power that to erect building denying right here claimed decisions power purchase implies the the neces- large furnishings at from purchase sary on it. They to erect em- the sale of bonds. realized from funds arguendo ploy support this fact their power that the implies deci- claim when- state also is-that So'it analyzed equip subject it is and furnish. found the But they on sions argument must make in the face majority In writing opinion this for this in Tom Board of Lujan, court’s court in Chase County present Commissioners in Board Chief Justice State, both cited Commissioners who is opinion author of the above, not that the “to erect” does herein challenged, said: implied power include the remodel” or “to principles democracy “One of the of our “to -repair”, and in the face of the further for which our fight armed is the forces fact of the that when the framers constitu- separation powers. We, too, champion purchase tion intended that “fur- principle that amendments to constitu- nishings” from bond should be people tions must be left to the not permissible they made intention clear that supplied by the courts.” by stating. so See Const. Art. § hereby We pledge renew our of alle- prohibition against borrowing where the giance to the principle declaration so by borrowing school excludes for districts forcefully stated the then Mr. Justice “erecting” buildings school “fur- Lujan, Brice in supra, Chase v. and seek nishing” compare them as Then well. application its at issue section language of this with that of at case bar. 10, relating county Const. Art. § is obvious and buildings. difference A mere reading enabling act is significant. convincing legislature that the authorized equipment counties to requires glance com- It but the two permanent of a character which installed panion Art. 9 to see sections Const. that part become would but as majority opinion is to effect of types all furnishings equip- well relating build- amend section otherwise, ment, surgical and used in the ings make it read as does section operation hospital. of a first class Proof relating supplying school of this is demonstrated the fact that the “furnishing” in the the word former sec- merely levy “maintaining authorized is by the framers where omitted tion hospitals; operating” such easy would been an constitution. It equipment. L.1947, 148, purchase of See c. supply that them- for them word matter faGt, might 2. But for § presence, its had intended if selves sumed commissioners in *12 if, it from section 11 or, omitted to have authorizing equipment section majority contend as to issue,-and proceeds of the bond from favorably therefor, voting people meant the same without language means it. 22á equipment that only the kind
to include in- purchased and so
lawfully could District, supra.
stalled. Jewett attorney general opinion, our compelled to lend blanket
should not be since proposed bond issue
approval equipment generally from purchase of contemplated. For thereof is reason, writ manda- the alternative
this discharged. should
mus otherwise,
concluding
we dissent.
McGHEE, Justice.
The first raised appeal case is whether an individual against an action in maintain tort The Pen- Mexico, itentiary of New a corporation, damages. Article Section New Mexico provides: