17 N.M. 304 | N.M. | 1912
OPINION OP THE COURT.
Section 22 of Chapter 83 of the acts of the First Legislative Assembly makes appropriations for the payment of deficiencies in the revenue of the 61st, 62nd and 63rd fiscal years of the Territory of New Mexico, the major portion of such deficiencies being due to the change from a territorial to a state government and as no question is raised as to the inclusion of any of these items in the -general appropriation bill, it will not be necessary to incorporate the section in', this opinion.
Section 23, of'the same act, appropriates the sum of $50,000 for the purpose of paying for the construction oí Lea ITall, an academic school building situated on the grounds of the New Mexico Military Institute, which was a building used and occupied as apart of the New Mexico Military Institute at Roswell and which was destroyed by fire. Further provision is made for the expenditure of this money by the Board of Regents. The sum of $30,000 is appropriated to be expended under the direction of the Regents of the New Mexico College of Agriculture and Mechanic, Arts, near Las Cruces, for the purpose of constructing a fire proof building in place of the old administration building recently destroyed by fire, and for a heating plant for the same. The sum of $25,000 is likewise appropriated for the Institute for the Blind at Alamogordo, for the purpose of constructing a dormitory and providing it with a heating plant and furniture.
Section 24 of the act provides for the issuance of certificates of indebtedness, for the purpose of providing funds for the payment of the appropriations made by sections 22 and 23. The rate of interest, form,of the certificates, etc., are provided for by the section.
The certificates were provided for by the legislature under authority conferred by section 7 of article IX of the constitution which reads as follows:
“Sec. 7. The State may borrow money not exceeding •the sum of two hundred thousand dollars in the aggregate to meet casual deficits or failure in revenue, or for neces>essary expenses. The State may also contract debts to suppress insurrections and to provide for the public defense.”- ■ .
The amount authorized does not exceed the constitutional limitation.
The first objection set .up in the answer of respondent is that the authority .for the issuance of the certificates is invalid because the Constitution provides that, general •appropriation bills shall embrace nothing but appropriations for the expense of the executive, legislative and judiciary departments, interest, sinking fund, payment on the public debt, public schools, and other expenses required by existing laws; the section of the Constitution in question, is section 16 of article IV, which reads as follows
“Sec. 16. The subject of every bill shall be clearly expressed in its title, and no bill embracing more than one subject shall be passed except general appropriation bills •and bills for the codification or revision of the laws; but if any subject is embraced in any act which is not expressed in its title, only so much of the act as is not so expressed shall be void. General appropriation bills shall ■embrace nothing but appropriations for the expense of the executive, legislative and judiciary departments, interest, sinking fund, payments on the public debt, public schools, and other expenses required by existing laws; but if any such bill contain any other matter, only so much thereof as is hereby forbidden to be placed therein shall be void. All other appropriations shall be made by separate bills.
“The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought, seldom, if ever, be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligation which that station imposes; but it is not on slight implication and vague conjecture that the legislature' is to be pronounced to have transcended its power and its acts to be considered void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”
And Mr. Justice Washington, in the case of Ogden v. Sanders, 12 Wheat. 213, gives the reason for the rule, in the following clear and concise language: “But if I could rest my opinion in favor of the constitutionality of the law on which the question arises, on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which.-any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt.” And Judge Cooley, in his work on Constitutional Limitations (7th ed.) p. 254, after discussing the views of these eminent jurists, says: “The constitutionality of a law, then, is to be presumed, because the legislature which was first required to pass upon the question, acting, as they must be deemed to have acted, with integrity, and with a just desire to keep within the restrictions laid by the constitution upon their action, have adjudged that it is so.” Countless other similar expressions of the rule by courts could be quoted, but it is useless to multiply authorities in support of a rule so well settled and so consistently adhered to by the courts. It is disregard of this rule and an apparent presumption against the validity of an act of the legislature, in doubtful eases, which brings upon the courts, at times, adverse criticism.
In the case now under consideration, no question is raised as to the power of the legislature to do what it has done, but the objection is, as to the manner in which it accomplished the result. That it had power to make the appropriations, for the purposes specified, must be conceded, and likewise to provide for the. issuance of the certificates of indebtedness, if the purpose for which they were issued comes within the provisions of section 7 of article IX of the constitution, the main objection being as to the form and manner in which they exercised the granted power.
There is apparently but very little authority upon the subject. In the State of Florida, where the constitutional provision is somewhat different from our own, providing:. “Laws making appropriations for salaries of public officers and other current expenses of the State, shall contain provisions on no other subject,” the court has apparently taken the contrary view, but a reading of the cases will disclose that the subject was not well considered, and the opinions were rendered in response to questions propounded by the governor. It will be further noted that the constitutional provision in Florida is stronger and more definite than that used in our constitution, which may in part account for the holding. See in the Matter of Appropriation Bill, 14 Fla. 283, and in Matter of Revenue Law, 14 Fla. 285. In Pennsylvania we find a case which more nearly approaches the present one. The provision of the-Pennsylvania constitution was “the general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the commonwealth, interest on the public debt and for public schools; all other appropriations shall be made by separate bills, each embracing but one subject.”'
,. The legislature in the general appropriation bill of 1893 appropriated money for the payment of the salary of a clerk in the offices of the prothonotaries of the Supreme Court for the eastern and western districts respectively. 0,ne of such clerks attempted to collect his salary, but'the auditor-general of Pennsylvania refused to draw and the State treasurer refused to pay a warrant. The lower court held against the relator on the ground that the legislature could not, within the constitution, in a general appropriation bill increase the compensation of the prothonotaries or create the office of clerk of the prothonotary and provide for his compensation, but that this would have to be done by a separate act of the legislature. The following quotation from the opinion of the Supreme Court is instructive :
“It is uncontroverted therefore that the legislature could do the substantial thing, and the only question is whether it could do it in the present form. In general it will not be disputed that the legislature is the exclusive judge of the form in which its enactments shall be put, and its mandate in that respect cannot be questioned unless it transgresses a plain prohibition in the constitution. The only provision invoked here is section 15 of article 3, The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the commonwealth,’ etc. The history and purpose of that section are well known. It was aimed at the objectionable practice of putting a measure of doubtful strength on its own merits, into the general appropriation bill, in legislative phrase tacking it on as a rider, in order to compel members to vote for it or bring the wheels of government to 'a stop. The same constitutional intent is embodied in section 16 of article 4 giving the governor power to disapprove separate items of appropriation bills. It is the practice of thus forcing the passage of extraneous matters not germane to the purpose of the bill itself, that was intended to be abolished. As to general legislation the same object among others was secured by the provision of section 2 of article 3 that ‘no bill, except general appropriation' bills, shall be passed containing more than one subject/ General appropriation bills from their nature usually cover a number of item's not all relating strictly to one subject.' They are _ therefore excepted from the requirement of section 2, and this' eiception necessitated special section 15 relating to them. The object of both is the same.” Commonwealth v. Gregg, 161 Pa. 586.
We shall next consider, together, the causes assigned by the respondent, for his failure and refusal to issue the certificates of indebtedness, in the second, fifth, sixth, seventh and eighth paragraphs of his answer, as they are all directed to the appropriations made for buildings in section 23 of the act. The objection to the inclusion of appropriations for the three educational institutions, in the general appropriation bill, is, that under the limitations in section 16 of article IY of the constitution, an appropriation can not be made for the construction of buildings for educational institutions, although such institutions have been created and established by existing laws.' It must be apparent that these appropriations are not for expenses of the legislative, executive or judiciary departments of the government, and if such appropriations can be sustained it must be under the clause of the section of the constitution, which authorizes the inclusion in the general appropriation bill of appropriations for “other expenses required by existing laws.”. ,It might be remarked in passing, that this clause of our constitution appears to be peculiar to New Mexico. So far as we have been able to learn, no other state has a similar provision in its constitution, so that we are not enabled to -profit by the reasoning of other courts. The use of the words was evidently intended to give to the legislature greater latitude, as to appropriations which could be included in the general appropriation bill. A great many of the states have provisions only for appropriations for the three departments of the government, and- it is not to be presumed that the framers of the constitution intended to use the words above quoted, without effect and to no purpose. What appropriations are “required by existing Taws?” Is the word “required” used in the sense of “demand,” or- “exact” ? Clearly it was not so used, because we can conceive' of no existing law wliich could exact or demand, in- a strict sense, an appropriation from a succeeding legislature. There might be many existing laws upon ■the statute' books, which' would, of right, necessitate, or call for additional' appropriations, but certainly no existing law which could compel the legislative department of the government to appropriate money.
Century Dictionary defines the verb “require” as follows :
5 “1. To search for; seek. 2. To ask as a favor; request.' 3. To ask or, claim, as of right and by authority; demand; insist on having; exact. 4. To ask or order to do something, call on. 5. To have need or necessity for; render necessary or indispensable; demand; need; want?’ The word “required” was evidently not intended to be used in the sense ascribed to it in the first four clauses of the definition given, because to give to it such a meaning would render the clause an absurdity and meaningless. But by giving it the meaning of “to have need or necessity for;” as1, it is defined in the 5th definition, full effect is given to the clause of the constitution under consideration. The word “required” or “require,” has frequently been defined to mean “necessary” by the courts. See Wilcox & Gibbs Guano Co. v. Phoenix Insurance Co., 60 Fed. 929; F. & P. M. R. R. Co. v. D. & B. C. R. R. Co., 64 Mich. 550, where the- court holds' that the word “require” is frequently used in- the sense “to need” or “to be requisite.” The word having then been used in the sense of “necessary” or “requisite”, it remains to determine whether the appropriations made for the new buildings at the educational' institutions werq necessary or requisite, under existing laws. And the question naturally suggests itself, as to the power or right of the court, to determine or adjudge of the necessity for the reconstruction of the buildings, for which the appropriations were made. The legislative department of the government, whose special duty it is to inquire into and determine the requirements and1 necessities of the various State institutions, has already supposedly, investigated the question, heard evidence, if such were necessary, and has determined and by its' enact-, ment recorded the fact that such necessity existed, in order that such institutions could properly perform and carry out the functions and fulfill the purposes of their creation. Each of the institutions, for which the appropriations were made, was established by the territorial legislature many-years ago; all were confirmed by the constitution as State educational institutions.
These institutions, having been created “by existing laws,” appropriations for increased facilities to meet the needs of the people and accommodate the increased attendance and requirements of the students' are necessary to enable them properly to accomplish the purposes of their creation, and' in that sense, are not such appropriations “required by existing laws,” or at least was it not. incumbent upon, and was not the legislature the sole judge of-the necessity, so long as it is not manifest, that the provisions of the constitution has been used as a cloak to hide some ulterior design and to make an unwarranted raid upon the treasury?
“But the argument on which most reliance is placed, is drawn from the peculiar language of this clause. Congress is not empowered by it to make all laws, which may have relation to' the' powers conferred on the government, but such only: as may be' “necessary and proper” for carrying them into execution. The word ‘necessary’ is considered as controlling the 'whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, ■and leaves to congress in each case, that only which is most direct and simple.
“Is it true that this is the sense in which the word ‘nec-essary’ is always used? Does it always import an absolute physical necessity, so strong that one thing, to which •another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to "its use, in the common affairs of the world, or in approved ■authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end and not as being confined to those simple means, without which the end would be entirely unattainable. Such is the character of human language, that no word conveys to the mind in all situations one single definite idea; and nothing is more common than to use words in a" figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would •convey a meaning different from that which is obviously intended. It is essential to just construction, that many word's which import something excessive should be understood in a more mitigated sense — in that sense which common usage' justifies. The word ‘necessary’ is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or dimmish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed by these several phrases. This comment on the ■word is well illustrated by the passage cited at the bar, from the 10th section of the first article of the constitution. It is, we think, impossible to compare the sentence which prohibits a state from laying ‘impost or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws/ with that which authorizes congress ‘to make all laws which shall be necessary and proper for carrying into execution the powers of the general government, without feeling a conviction that the convention understood itself to change materially the meaning of the word ‘necessary/ by prefixing the word ‘absolutely/ This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of a person using them, are all to be taken into view.”
To give to the words of the constitution, the construction contended for by the respondent, would deny to the legislature the right to include in the general appropriation bill, appropriations for the maintenance and repair of any of the State institutions. For instance, there is an act of the territorial legislature, providing for the erection of the capítol building in Santa Fe. The act providing for the-construction of the building makes no provision for its future repair, and because of the failure to malee-provision in this regard, shall we assume that there is no “existing law,” which requires tire building to be kept in repair, so-that it may fulfill the purposes for which ■ it was established? To so hold would mean that no appropriation could be included in the general appropriation bill-, out of which incidental repairs could be made, but, that, all- such appropriations would necessarily have to be made by a separate bill, the subject of which must be clearly expressed iu the title, and which could not embrace more than one subject. The endless legislation which such a construction would entail is very apparent and manifestly the constitutional convention did not mean so to require. ■
The answer of respondent, presenting no valid or legal reason, for his failure to execute, sign and issue the said certificates of indebtedness, the writ of mandamus will issue as prayed for by the relator. And it is so ordered.
