*1
as a
It
result
father.
Appellants pose question of double v. liability. They happen ask if what will Georgia LUSK, individually L. and as Su- perintendent later Instruction; the minor files a claim death of Public John Milne; Roat; Mary Lucero; Aileen J. benefits. Our answer is that we can Floyd Miller, Watson, person and Finn in try time, supposed one case at a and the and as members of the New Mexico State Education; Reece, per- case is J. note, however, T. in before us. We Transportation; son and as Director of the authorities are in conflict as to person Holder, O. J. in and as Education whether the statute of limitation is tolled Budget Auditor; Harrelson, al Nettie person and as Treasurer of Socorro disability because of the In minor. County; Zimmerly, President, Sam J. San Corp. Flint, land Gas Ky., 269 S.W.2d tiago Baca, Vice-President; Danny Ro 239; Redfern v. Mfg. Co., Holtite 209 mero, member; Gilbert, Mr. Alfred mem ber, Bartee, Secretary, Mr. W. individu 370; Md. 120 A.2d Allen v. St. Louis- ally and as members Mu Ry. Co., San Francisco 338 Mo. nicipal Education, School Board of Defend 1222; ants-Appellees. S.W.2d Bailey’s A.L.R. Mitchell, Fla.,
Auto Service v. 85 So.2d No. 6234. 228. We note further that no has effort Supreme Court of New Mexico. appellants rights been made to have the minor, any, if determined. Jan. posed
The first at the outset
must negative; be answered
latter judgment in the affirmative. The affirmed,
should be with an additional appellees for the services
award of $750 attorney representing them their court. It is so ordered.
this
LUJAN, J., SADLER, C. McGHEE KIKER, JJ., concur.
corporate capacity, brought this action seek- ing injunctive declaratory relief Instruction, the Superintendent of Public Members of Educa- State Board tion, Transportation, Director of Budget Auditor, Educational Treasurer County, Socorro Municipal Education, Socorro all both individually and in their several official capacities. Appellants sought to restrain defendants-appellees effecting from con- public solidation of schools of certain rural Mexico, districts of County, New Socorro School District No. to restore account of the Socorro County Board of Education the funds originally allocated to it the original *3 budget, or as much of said funds as re- unexpended. mained 18, On January 1954, survey a was con- ducted to determine the advisability of consolidating certain schools in Socorro County, and the committee returned re- a port recommending consolidation. of State Board Education ordered con- & Belen, Cowper, Chacon & Chaves solidation the of school districts involved appellants. Melendez, Española, for 5, 1954, February on but in March of that Atty. Gen., Standley, Robert M. Fred year was an order entered in the district Asst. Dickson, Jr., Pyatt, A. Hilton F. County enjoining'further court of Gen.,
Attys. appellees. consolidation, proceeding in which order May, July 13, dissolved 1955. On was LUJAN, Chief Justice. 1955, Board of the State Education adopt- put to individually, into the ed a motion effect Plaintiffs-appellants, acting action February 5, 1954, Board County of the ordering Board members of the Socorro as 31, consolidation, August and on 1955, Education, acting and the Board the of 386 pro- the or
present From a which remedies of mandamus action was commenced. appel- supposed hibition basis would not lie. The dismissal of latter action the the was unconstitutionality of error, principally contending of the statute lants bring only a action subterfuge enlarge Board to an that the action of State of the not against ordering Education was the state where would consolidation one 73-20-1, N.M.S.A., Com- void as lie. §
pilation, expired by terms had its own Education v. Taos prior February date the Sedillo, in- 101 P.2d N.M. consolidation; the original order of the problem a line with volved more in until consolidation did not become effective duties in the case. instant We said 23, 1955, subject August then was Attorney General with reference of requirements of of ch. to the approval certain disapproval or of not com- the Board did with which that mandamus ministerial and bonds were failed to ply; order that the consolidation appear would that where would lie. It team, survey findings follow of lie as mandamus would other remedies capricious, being moti- arbitrary lie. declaratory judgment should also by personal reasons of vated interpret 73-20-1 Section As we Superintendent Public Instruction. of duty Compilation, the of the State considering merits this Before Education to determine appellee’s necessary dispose it case is feasibility economic against this a suit contention meeting minimum attendance not is with- concerning the court state which mandatory. There requirements was However, jurisdiction. the defense out deter not determine or no discretion to so apply the state does of suit make If board had refused to mine. agree that we we cannot in this case and cer determination mandamus overruling Arnold and Sedillo are part tainly on the lie to enforce action holdings. If problem. in the the board as Sedillo State, capriciously acted the board had 48 N.M. In Arnold con clearly such indicating action involved a direct suit face facts 257, the P.2d *4 feasible, economically of Mexico solidation not to be New based against situation prohibition also The failure of the title in lie. supposed Laws a on State, 18 N.M. Chapter clearly express Lorenzino v. is similar to of of 240, 135 where the board Coun provisions to the of P. it referred 1-941 necessarily This had to deter ty Section 31-116. Commissioners Compilation, was a calling facts the state of for can- against in mine existence suit direct liquor cellation of a We said this license. A reading careful the above of exercise judgment of did section party the board injured convinces that an us declaratory detract of from has the ministerial character standing to sue under a duty imposed judgment in and that mandamus any question act genuine or would be volving awarded to control the Board’s constitutionality or construc action. tion of a Certainly, statute.
County Board of stand Education had such only point analy in the above ing in Indeed, on the instant case. point sis is to out that where other remedies basis of 22-6-3 Borchard and Section as prohibition mandamus or will lie Compilation we are convinced declaratory judgment should issue also we need to limit Arnold holding would not enlargement be an of actions case, and that the construction of a statute against the state. can be or attacked on both formal sub grounds by stantive party stand a with Borchard, Declaratory (2nd Judgment See, Borchard, ing to supra, page sue. Ed.), him, as we interpret goes farther. problems pages discussed in 370- See, also, Anderson, De- Actions for declaratory 374 involve the relation claratory Judgment (1951), Section judgment petition right and claims page is where it stated: against government. study A “Validity conferring statutes section indicates that the author’s powers and imposing duties boards declaratory that a judg- intent to show of education and institutions of learn- claim, permit ment action does not a as ing state, tort, respect within sovereign where such not exist under other schools, does remedies. The management of fiscal classifi- constitutionality, question validity, or students, and financing and cation construction of a statute is not involved. buildings, construction like Chapter ten, question This is discussed in questions, determined will be in a de- pages 766-800. claratory action.” case, pointed out the Sedillo As New Appellants place considerable stress Mexico, adopted substantially, the federal Chapter 38, last sentence of * on the § act, U.S.C.A. Section including act in provid of 1945. The authorizing action in section certain ed for under cer where construction of the state instances a for. conditions and final or a statute is called tain sentence read: constitution *5 388
“ * * * both amending act of act caused provisions of this tence the 1945 The agree- expire. laws to we cannot in for the duration With this are be effect to Germany and present of the war with legislature apparently The realized Japan (1) term and full school for during years the on the war . thereafter.” years’ average basis of attendance- normal requirements school destroy would some Appellants argue that order the of con- due years in non-war would be needed of Board of Education solidation the State military population to a return of from 1954, February 5, under the above act pre- The service and defense industries. authority providing invalid act as the 38, 1945, read as chapter amble to of Laws expired by for had such consolidation follows: the ending of war terms due to own “Whereas, of the rural communities Germany Japan years prior. and That some many the State are now in instances years prior had to the war ended some faced with virtual loss rural elemen- of and by appellees, admitted Board’s action is tary secondary and educational facili- question law if sentence of the last law, by ties under of existing reason pro- all acts applying to could be taken as temporary population shifts to war due schools, task our of viding for consolidation * * conditions, therefore simple. be The title to act stated: to 38, Chapter served Amending "An Act Section 55-1901 Compila- N.M.S.A., 55-1901, 1941 amend § The New Annotat- Mexico Statutes transportation of provided tion, for which ed, Compilation of to- Relating average when to other schools children Average Daily Attendance in the Ru- below any fell daily school attendance Elementary Secondary Schools ral high “30” in elementary grades and “12” in State, the Duration for substi- amending act grades. school Present War And One Full School “30”. “15” for “12” and “8” for tuted ** Thereafter, (Em- Term daily required below the fell When schools phasis added.) to attendance, transportation was average may preamble be used to clar feasible where schools be other made interpretation. ify an act and aid in its See available. facilities were proper educational Fe, City Co. Continental Oil of Santa that the consoli- do not contend Appellants 25 177 P. 3 A.L.R. N.M. daily met dated may The title also be utilized aid in as an law 1941 either attendance average determining legislature the intention of the meanings. sen- doubts the last resolve as to See law, rather that but 1945 or question. Additional rec- P.2d consolidation Moore, N.M. State v. survey team were ommendations together, is read the entire act 902. When surplusage. be that can only possible construction leg- parts that the harmonize its made to Appellants contend alterna amendment intended that islature of Ed tive that the act the duration be effective *6 not ordering consolidation did ucation in there- and one full term the war school requirements meet Laws the of the the after, period following that this and 1955, 100, question, Chapter law in 1. The § act original the amendment was end and to N.M.S.A., Supplement, make 73-20-1, did was This then unamended. continue composi changes regard the some with to Legis- undoubtedly thinking 1955 the of the a survey tion true that and it is teams act, the as amending the lature in further the survey keeping with was not made in 73-20-1, chapter indicates that title to 100 § However, not construe 1955 we do Act. N.M.S.A., chapter Compilation (being 1953 Educa the resolution Board of of the State 123, 1941), was existing Laws of an law consolida July, 1955, tion in order of as an hold. being We so amended. tion under The resolution the law. provided as follows: Appellants argue that in seem to sur asmuch as all of the recommendations ad- Floyd that “Dr. Miller moved J. vey complied that committee not with were put ef- steps taken into ditional be to Superintendent the of the Board and acts for- immediately fect the action un therefore of Public Instruction were Feb- Education of mer State Board of 123, interpret chapter lawful. As we 5, 1951, to ruary reference School survey deter committee was to the County.” Districts in Socorro daily when schools did not meet the mine employed it is clear language From the requirements average attendance deem Education did not the State Board of feasible. whether consolidation would be necessary a consolidation it to order Board of Education could then The State Schools, take rather to but by it not prevent determining consolidation complete steps consolidation a additional Otherwise, consolidation to be feasible. the 1945 The or- begun under law. in fact mandatory under the law. would have been Superintendent of Public In- der of contend that appellants do not As Budget Education and of struction daily average at met the schools involved the same effect. was to Auditor Mexico requirements under New tendance had Suppose everything been done Education was laws, the State involved but the the schools ordering the to consolidate powers in acting within purchase one ruary 5, Could school bus? controlled and was not argue then that because consolidation act. consolidation complete in fact
not that the Neither the contention does begun to be all under would have over resolution and order of consolidation 1955 Act? We think The later act did not. arbitrary us. capricious influence begun for- destroy under consolidation may Whatever been motivations have re- amendments laws, merely but made mer involved, overwhelming that facts are when- consolidation orders lating to future daily requirements average attendance nec- such to be the Board should deem ever met, survey were not determined that the essary. feasible, that the Board Public Superintendent Instruction true and Education such to be determined authority complete the consoli- had full accordingly As we stated so ordered. under of the schools dation Russell, Strawn v. 54 N.M. Board’s February order P.2d 293: merely additional an in 1955 was action legislature given has “The entirely un- It was her to act. stimulus powers Board of Education broad lawfully necessary consolidation. effect effecting consolidation of rural school by author- Superintendent later acted *7 districts, can and we interfere her order, as to the 1955 and ity the 1954 arbitrary when action is or unrea- trial The apply in this instance. not act did sonable.” as follows: found court fully complied and As the were “ laws * * * by the resolution light most favor- taking the evidence February made Board State appellants, say cannot able we in this exist- under the law and effective was the action of consolidation instance valid time, to a amounted ing at arbitrary or unreasonable. consolidation, and that for resolution in 1955 by resolution found State Board Having carrying the purpose of merely statute, acted under a valid Education and *** effect, into previous one February 5, 1954, by resolution consoli- the con- legality of not affect question, we need not dated the made.” previously solidation points appellants raised other consider sustain the action the court below in trial findings of sustain must We dismissing the action. court. as of Feb- It so effective is ordered. County Schools W. COMPTON, DAVID J.,
CARMODY, Judge, concur. District dissenting.
McGHEE, J.,
SADLER, J., participating.
McGHEE, (dissenting). Justice my opinion,
In a suit this is lack
State and because of New Mexico I be- be dismissed. its consent should directly con- majority opinion
lieve the
trary in Arnold holdings v. our Sedillo. v.
Taos Board of Education same
Mr. was of SADLER Justice
opinion illness. prior to his
Mrs. R. Supply JONES, Builders & dba Portales
Art Defendant-Appellee. Co.,
No. 6223.
Supreme Court of New Mexico.
Jan. *8 Portales, Boone, Mears, Fred
Mears & J. appellant. for Portales, Compton, ap- Compton & pellee.