18 N.M. 131 | N.M. | 1913
OPINION OP THE COURT.
This is an action brought by the State on the relation of Thomas P. Delgado, as treasurer of the fire department of the City of £>anta Fe, against William G-. Sargent, Auditor of the State, to compel the payment of the sum of $1200.00 to relator as such treasurer. The respondent answered the alternative writ and alleged as cause for his refusal to issue his warrant for said sum, that there were no funds available for the payment of such warrant by reason of the fact that the legislature of 1912 had diverted the fund into the state salary fund. The District Court awarded a peremptory writ and the State Auditor appealed to this Court.
It appears that in 1897 the legislature provided that there should be collected from all foreign insurance companies two per cent, of the amount of all premiums collected by them within any city, town or village in the Territory, which said sum should be paid to the fire depaartments of the city, town or village in which said premiums were collected. See chapter 38, laws of 1897, compiled as section 2132, C. L. 1897.
In 1905 the legislature created the Insurance department of the Territorj, "provided for a Superintendent of Insurance, and provided that all insurance companies should pay to the Superintendent of Insurance, two per cent, upon the gross amount of premiums received during each year. This act provided that these monies should be paid into the Territorial treasury for an insurance fund and provided that the Territorial treasurer should annually, on the first day of August of each year, pay to the treasurer of the fire department of every city, town or village in the Territory a sum of money equal to the amount received by such fire department under section 2132, C. L. 1897, during the year 1904.
See chapter 5, laws of 1905.
The law remained in this form until 1909, when the legislature enacted chapter 135 of the laws of 1909, which is entitled “An act for the disposition of certain insurance money.” Section 1 of that act provides -for the payment of $2000.00 per annum “from the amount of money collectdd from the insurance companies, as defined in the act known as chapter 5, Session Laws of 1905 ,of New Mexico,” to “the New Mexico Association of Firemen.” Section 2 of the act omitted special reference to the insurance fund created by the act of 1905, but made an annual and continuing appropriation of specific amounts to the various fire departments of the Territory, including Santa Fe. The law remained in this condition until the session of the state legislature in 1912, when, by chapter 83 of the laws of that session, the same being the General Appropriation Bill, the legislature passed two provisions which relate to the subject in hand. The first is the last paragraph of section 18 of that chapter, and is as follows:
“All receipts of the State Corporation Commission, including all receipts of the Insurance Department of the State, shall hereafter be covered into the State Salary fund.”
Section 21 of that chapter provides:
“The State Auditor is hereby directed to transfer to the State Salary fund all surplus monies in the following funds, to-wit: Insurance Fund,” and ten other funds therein mentioned.
In pursuance of these two provisions the Auditor transferred all of the funds in the Insurance fund to the State Salary fund and hence answered that there were no funds available upon which he could issue his warrant.
Tlie first proposition involved is the construction of chapter 135 of the laws of 1909. It is argued by appellant that, taking into consideration the title of this act and its provisions, the legislative intent is made to appear to limit the appropriation to the'various fire departments in the Territory to monies contained in the Insurance fund. Counsel for appellee argued that by reason of the terms of section 2 of that act, which makes no reference to the Insurance fund whatever, it necessarily appears that the legislative intent was to make a general appropriation out of any public funds not otherwise appropriated. He cites authority to the effect that the title of an" act can not be resorted to in aid of its construction where the act is free from doubt or ambiguity.
Another consideration of importance is the history of the legislation in behalf of the volunteer fire departments. No general appropriations for their support have ever been made. Their support has always been derived from monies collected from the fire insurance companies, upon the theory, we assume, that the insurance companies derive most of the real benefit from the existence and maintenance of the fire departments, and that they should, consequentty, assume the cost of their maintenance. So radical a departure from a former uniform practice as to make general appropriations for the purpose would certainly be clearly and unequivocally expressed, had the legislature so intended. We conclude that the appropriation was limited to the insurance monies.
Very little precedent is to be found directly in point. In State v. Board of Commissioners, 94 Pac. 1004, there was a constitutional prohibition against a collection of monies bj taxation for one purpose, and expenditure of the same for any other purpose, and the legislature of Kansas had authorized the expenditure of any surplus funds for the erection or repairing of court houses or county office buildings. In that case the court had occasion to define a surplus, and in so doing adopted Bouvier’s definition as follows:
“That which is left from a fund which has been appropriated for a particular purpose; the remainder of a thing; the over-plus, the residue.”
It is true in that ease the court was not called upon to decide the question presented in this case, but the principles which we have announced were recognized by the court. The same proposition is touched upon in McConnel V. Allen, 105 N. Y. Supp. 16, but the case is of no particular value owing to the' difference in the facts.
For the reasons stated the judgment of the lower court will be affirmed, and it is so ordered.