OPINION
The New Mexico Constitution provides that the state legislature shall convene for a session not to exceed sixty days in odd-numbered years and a session not to exceed thirty days in even-numbered years. N.M. Const. art. IV, § 5. Additional special sessions may be convened, art. IV, § 6, but they may not exceed thirty days unless an impeachment trial is pending at the expiration of that period. Id; art. IV, § 5. On paper the intent is evidently to have the legislative business of the state conducted by a group of citizens who volunteer a few weeks of their time each year to public issues. The reality is rather different. Although members of the legislature still spend only an average of forty-five days a year in session (special sessions are infrequent and last only a few days), the complexity of modern society and public interest in state government make participation in the legislature virtually a full-time job. Legislators typically attend innumerable meetings, official and unofficial, and respond to countless requests and demands from constituents and other interested persons.
Yet, there is little material reward for this labor. During their terms of office legislators receive only (1) per diem payment of $75 for each day’s attendance during legislative sessions, art. IV, § 10(A); NMSA 1978, § 2-1-8 (Repl.Pamp.1994) (2) twenty-five cents per mile for one trip each session to and from the capitol, id, and (3) per diem for attending interim committee meetings between sessions, art. IV, § 10(B); NMSA 1978, § 2-1-9 (Repl.Pamp.1994). These payments are not intended to enrich legislators but only to cover travel expenses. Perhaps they accomplish that purpose, but the per diem rates are hardly extravagant. The federal government’s per diem rate for Santa Fe is $114. 58 Fed.Reg. 67,958 (1998) (to be codified at 41 C.F.R. ch. 301, app. A).
Service in the New Mexico legislature is undoubtedly a substantial financial sacrifice. Psychic reward is the chief compensation for this public service. In recognition of the financial sacrifice, the legislature has instituted a pension plan for its members. The pertinent provisions are as follows:
State legislator member coverage plan 1 is applicable to state legislators and lieutenant governors.
NMSA 1978, § 10-11-39 (Repl.Pamp.1992).
Under state legislator member coverage plan 1, the age and service requirements for normal retirement are:
A. age sixty-five years or older and five or more years of credited service;
B. age sixty-four years or older and eight or more years of credited service;
C. age sixty-three years or older and eleven or more years of credited service;
D. age sixty years or older and twelve or more years of credited service; or
E. any age and fourteen or more years of credited service.
NMSA 1978, § 10-11-40 (Repl.Pamp.1992).
A. Under state legislator member coverage plan 1, the annual amount of pension under form of payment A is equal to two hundred fifty dollars ($250) multiplied by credited service as a legislator or lieutenant governor, if the member served as legislator or lieutenant governor after December 31, 1959.
B. Under state legislator member coverage plan 1, the annual amount of pension under form of payment A is equal to forty dollars ($40.00) multiplied by credited service as a legislator or lieutenant governor, if all service as a legislator or lieutenant governor is prior to January 1, 1960.
NMSA 1978, § 10-11-41 (Repl.Pamp.1992).
A member under state legislator member coverage plan 1 shall contribute one hundred dollars ($100) for each year of credited service earned after December 31, 1959.
NMSA 1978, § 10-11-42 (Repl.Pamp.1992).
The state shall contribute amounts sufficient to finance the membership of members under state legislator member coverage plan 1 on an actuarial reserve basis.
NMSA 1978, § 10-11-43 (Repl.Pamp.1992).
The equity and wisdom of this pension plan is a matter for the legislature and the governor. The judiciary plays no role in that determination. “[I]n constitutional adjudication, judges are not free to indulge in their private proclivities.” State ex rel. Anaya v. McBride,
The Attorney General contends that the pension plan violates Article IV, Section 10, of the Constitution, which now reads:
Each member of the legislature shall receive:
A. as per diem expense the sum of not more than seventy-five dollars ($75.00) for each day’s attendance during each session, as provided by law, and twenty-five cents ($.25) for each mile traveled in going to and returning from the seat of government by the usual traveled route, once each session as defined by Article 4, Section 5 of this constitution;
B. per diem expense and mileage at the same rates as provided in Subsection A of this section for service at meetings required by legislative committees established by the legislature to meet in the interim between sessions; and
C. no other compensation, perquisite or allowance. (Emphasis added.)
Before reaching the Constitutional issue, however, we must first address procedural matters raised by the Attorney General.
I. AUTHORITY OF SUCCESSOR DISTRICT COURT JUDGE
The Attorney General filed suit in Santa Fe County District Court on December 28, 1987, seeking a judgment that the legislative pension plan is unconstitutional and that a portion of the benefits already received must be repaid. Named as defendants were the Public Employees Retirement Board (PERB) and various plan participants. The case was assigned to District Judge James Blackmer, who on December 29, 1988, issued an order finding the plan unconstitutional and prohibiting the PERB from paying any benefits to former legislators or their survivors. Several defendants appealed. We dismissed the appeal on the ground that the order was not a final, appealable order because it did not resolve the Attorney General’s claim for refunds.
On remand the case was assigned to Judge Joe Cruz Castellano, Jr., who had succeeded Judge Blackmer on the district court. On June 15, 1992, Judge Castellano conducted a hearing on a motion to vacate Judge Blackmer’s order. The ground of the motion was that all plan participants were indispensable parties but some (the “unjoined participants”) had not been made parties at the time of Judge Blackmer’s ruling. Although the Attorney General did not oppose joinder of the additional participants, he did oppose vacation of Judge Blackmer’s order. Judge Castellano permitted joinder, vacated Judge Blackmer’s order, and then ruled that the plan was constitutional.
On appeal the Attorney General contends that (1) the unjoined participants were not truly indispensable because their interests were being well-protected by the defendants already in the suit and (2) even if they were indispensable, their prior absence was not a jurisdictional matter that required vacation of Judge Blackmer’s order. See C.E. Alexander & Sons v. DEC Int’l,
We reject the Attorney General’s contentions. Regardless of whether the unjoined participants were indispensable parties, the district court had authority to reconsider the earlier non-final ruling by Judge Blackmer. Although it would be grossly inefficient for district courts to review repeatedly their interlocutory rulings, the law-of-the-case doctrine does not prohibit the practice. In approving a district judge’s grant of a motion for summary judgment after an earlier judge had denied the motion, our Supreme Court recently explained:
The district court “has the inherent authority to reconsider its interlocutory orders, and it is not the duty of the [district court] to perpetuate error when it realizes it has mistakenly ruled.” Melnick v. State Farm Mut. Auto Ins. Co.,106 N.M. 726 , 728,749 P.2d 1105 , 1107 (1988). The grant[ 1 ] or denial of a motion for summary judgment is an interlocutory order, see SCRA 1986, 1-056(C), and, therefore, the district court could properly reconsider its previous ruling notwithstanding the fact that a different judge had issued that ruling.
Tabet Lumber Co. v. Romero,
We now address the merits. We hold that the legislative pension plan violates the New Mexico Constitution.
II. THE MERITS
A. Article IY, Section 10, Bars State-funded Legislative Pensions
The first version of Article IV, Section 10, appearing in the original New Mexico Constitution adopted in 1911, stated:
Each member of the legislature shall receive as compensation for his services the sum of five dollars for each day’s attendance during each session and ten cents for each mile traveled in going to and returning from the seat of government by the usual traveled route, once each session, and he shall receive no other compensation, perquisite or allowance. (Emphasis added.)
Amendments in 1944, 1953, 1971, and 1982 have brought the provision to its present form.
The question before us is whether the words “compensation, perquisite or allowance,” which have appeared in the provision since its inception, include pension plan benefits. In answering this question we recognize that statutes are presumed to be constitutional and “they will not be declared invalid unless the court is clearly satisfied that the legislature went outside the constitution in enacting them.” Richardson v. Carnegie Library Restaurant,
We are “clearly satisfied” that state-funded pensions are barred by Article IV, Section 10. Compensation is “something given or received as an equivalent for services.” The Random House Dictionary of the American Language 300 (1971). Benefits under the New Mexico legislative pension plan come within that definition. The calculation of benefits depends on a legislator’s years of service. Legislators are unquestionably receiving payments in return for those years of service. The benefits cannot be gifts because Article IX, Section 14, declares: “[T]he state ... shall [not] directly or indirectly lend or pledge its credit, or make any donation to or in aid of any person____” See State ex rel. Sena v. Trujillo,
In an almost identical context the Nebraska Supreme Court wrote:
We are unable to conceive how a retirement benefit awarded a former legislator for “creditable service” can be said not to be within one of the many meanings of either “pay” or “perquisites.” Certainly the Legislature could not be making a gift of state money to its former members. The benefit can be nothing other than compensation for past services.
State ex rel. Spire v. Public Employees Retirement Bd.,
Moreover, the phrase “compensation, perquisite, or allowance” is so all-embracing as to establish that the provision was intended to prevent any enrichment whatsoever. The structure of the provision — first authorizing per diem payments and then barring any “other compensation, perquisite, or allowance” — conveys the same breadth of meaning. Inasmuch as the purpose of per diem payments is to reimburse for expenses, not to enrich, the indication that per diem payments would otherwise be barred as compensation, a perquisite, or an allowance unequivocally implies the sweeping reach of the constitutional prohibition.
B. The Plan Participants’ Contrary Arguments
The plan participants present three arguments against our analysis. One is historical; the other two concern the timing of receipt of pension benefits.
1. The Historical Argument
The plan participants argue that the constitutional language does not include pensions because the framers in 1911 would not have understood the terms “compensation, perquisite or allowance” to include pensions. They contend that at the time of the adoption of the provision there were no state pension plans in the United States and private pension plans were very rare. They point out that fifty-five percent of the adult working population were engaged in agriculture for their livelihood and few, if any, working people in New Mexico at this time had a pension.
In support of their argument the participants cite Campbell v. Kelly,
To rebut this argument, the Attorney General presented affidavits by Myra Ellen Jenkins, former archivist for the State of New Mexico and then State Historian. According to Jenkins, many delegates to the 1910 New Mexico Constitutional Convention were well-educated and held college degrees; in 1906 the Atchison, Topeka and Santa Fe Railroad began its pension plan, which was available to New Mexico employees; one delegate was a conductor for the railway; the chairman of the convention, Charles A. Spiess, performed legal work for the railway; and at least one of the delegates, E.F. Stover, was a union veteran (military pensions had existed for some time). She expressed her opinion that at least some of the delegates knew about pensions and that “the delegates would have considered pensions and other forms of retirement plans to be compensation within the meaning of the original constitutional provision.”
Despite Jenkins’ eminence as an historian, we do not rely on her testimony. To begin with, it is not clear to us that the meaning of the constitutional language is to be determined by the understanding of the framers and voters in 1911 rather than the framers of later amendments and the voters who approved them. In this regard we should emphasize at the outset that it is irrelevant that the electorate has rejected various proposed amendments to Article IV, Section 10, including amendments proposed in 1978 and 1988 specifically to authorize legislative pension plans funded in whole or in part by state funds. Under our system of government, law is not made by defeating bills or proposed constitutional amendments. Article XIX, § 1 (establishing procedure for amending constitution); see William D. Popkin, Materials on Legislation: Political Language and the Political Process § 15.04, at 579 (1993). If in 1987 legislative pension plans were permitted by Article IV, Section 10, the defeat of the 1988 proposed amendment did not change that. Change would have required adoption of a constitutional amendment to prohibit legislative pension plans.
It is another matter, however, to say that voter approval of amendments to Article IV, Section 10, could have no effect on the proper interpretation of language that appeared in the original version of the section. If the reenacted constitutional language had previously been authoritatively interpreted by New Mexico courts, we would ordinarily presume that the electorate was informed of that interpretation and intended to maintain it, just as we do when the legislature reenacts previously construed statutory language, see Twin Mountain Rock v. Ramirez,
In any event, we need not choose between the understanding that the words “compensation, perquisite or allowance” would receive in 1911, 1944, 1953, 1971, or 1982. Even if the present language had been unaltered since 1911, we would hold that Article IV, Section 10, prohibits any public funding of legislative pensions.
The error of the plan participants is that they equate the 1911 meaning of a word with a list of all those things generally identified by the word in 1911. If pensions did not ordinarily come to mind in 1911 when one spoke of “compensation,” then, in their view, pensions could never come within the 1911 meaning of the word. This is not the way we read the language of our laws. Consider an extreme ease. When a statute uses the word “person,” does it apply only to persons in existence on the statute’s effective date? What of a “person” born a decade later? Similarly, if a 1950 statute made it a crime to threaten someone with a “deadly weapon,” would the statute necessarily exclude a threat with a laser gun developed in the year 2000?
The United States Supreme Court has addressed the issue repeatedly. In holding that patent law applies to human-made micro-organisms, the United States Supreme Court wrote, “This Court frequently has observed that a statute is not to be confined to the ‘particular application^] ... contemplated by the legislators.’ Barr v. United States,
Affirming a conviction for using a fraudulently obtained passport to establish the defendant’s right to reenter this country from abroad, the Supreme Court explained:
The fact that at the time of the passage of the act, passports were not customarily used by citizens to assure easy reentry is brought forward by petitioner to support the argument that Congress did not intend to punish uses such as the one charged here. There is nothing in the legislative history to indicate that Congress considered the question of use by returning citizens. Old crimes, however, may be committed under new conditions. Old laws apply to changed situations. The reach of the act is not sustained or opposed by the fact that it is sought to bring new situations under its terms. While a statute speaks from its enactment, even a criminal statute embraces everything which subsequently falls within its scope. The use here charged under these tests was clearly within the scope of the act. The purpose of this act was to punish the use of passports obtained by false statements.
Browder v. United States,
Of particular interest is a decision from the Tenth Circuit Court of Appeals by former New Mexico Supreme Court Justice Sam Bratton. A New Mexico statute enacted in 1882 (and amended in 1931 only to increase the dollar amount of recovery authorized) provided for damages for wrongful death caused by a “railroad, locomotive, car, stage coach, or other public conveyance.” NMSA 1929, § 36-101. Holding that the statute encompassed death caused by a truck for hire, even though trucks had not existed in 1882, Judge Bratton wrote: “[I]t is a general rule in the construction of statutes that legislative enactments in general and comprehensive terms, and prospective in operation, apply to persons, subjects and businesses within their general purview and scope, though coming into existence after their passage, where the language fairly includes them.” Cain v. Bowlby,
This approach is particularly appropriate when interpreting constitutional provisions. We quote from several opinions of the United States Supreme Court.
[W]e are now concerned with the question whether the right to choose at a primary election, a candidate for election as representative, is embraced in the right to choose representatives secured by Article I, § 2. We may assume that the framers of the Constitution in adopting that section, did not have specifically in mind the selection and elimination of candidates for Congress by the direct primary any more than they contemplated the application of the commerce clause to interstate telephone, telegraph and wireless communication, which are coneededly within it. But in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses.
United States v. Classic,
[Wjhile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise---[A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles^]
Village of Euclid v. Ambler Realty Co.,
[A]lthough the present case involves the right to service in a restaurant, the fundamental principles of the Fourteenth Amendment apply with equal force to other places of public accommodation and amusement. Claims so important as those presented here cannot be dismissed by asserting that the Fourteenth Amendment, while clearly addressed to inns and public conveyances, did not contemplate lunch counters and soda fountains.
Bell v. Maryland,
Although a state constitution may not be so grand a charter as that authored by our nation’s founders, it is nonetheless intended to govern an indefinite future and must be interpreted accordingly. As the Indiana Supreme Court wrote in an oft-quoted passage:
A Constitution is an instrument of a practical nature, made and adopted by the people themselves, adapted to common wants and designed for common use. When words are used therein which have both a restricted and general meaning, the general must prevail over the restricted unless the nature of the subject-matter o[r] the context clearly indicates that the limited sense was intended.
Gaiser,
New Mexico has embraced this view. In Wylie Bros. Contracting Co. v. AlbuquerqueBernalillo County Air Quality Control Board,
A constitution is a practical instrument adapted to common wants and designed for common use, and it is made and adopted by the people themselves. It must be construed as if intended to stand for. a great length of time. Since it is an instrument of progress, its meaning should not be too narrowly or literally interpreted, but rather it should be given a meaning which will be consistent with new or changed conditions as they arise. If words are used therein that have both a restricted and a general meaning, the general must prevail, unless the context clearly indicates that the restricted meaning was intended. Flaska v. State, [51 N.M. 13 ,177 P.2d 174 (1946) ].
See Humana of New Mexico v. Board of County Comm’rs,
In State ex rel. Anaya our Supreme Court rejected an argument of the same nature as that presented here by the plan participants. A former state senator had been appointed as a district judge. The question was whether the appointment was prohibited by New Mexico Constitution Article IV, Section 28, which read in pertinent part:
“No member of the legislature shall, during the term for which he was elected, be appointed to any civil office in the state, nor shall he within one year thereafter be appointed to any civil office created, or the emoluments of which were increased during such term____”
Id. at 245,
From the perspective of these cases, it follows that it is irrelevant to our interpretation of Article IV, Section 10, whether pensions were used as a benefit of employment in 1911. It might be relevant if the definition of, say, “compensation” in 1911 differed from the present definition: “something given or received as an equivalent for services.” The Random House Dictionary of the American Language 300 (1971). But the plan participants have not suggested that a 1911 lexicographer would have rejected the current definition. The 1913 dictionary we consulted provides a modern definition, defining compensation as “That which is given or received as an equivalent, as for services____” The Century Dictionary 1144 (1913).
Moreover, the precise definitions of the words compensation, perquisite, and allowance (if such words can have precise definitions) are not as important as the message conveyed by the three words in the context of the entire section. “[Ijrrespective of whether the ... framers of the ... Constitution contemplated pensions, they clearly stated that legislators were to receive nothing other than the sums specified in the Constitution.” State ex rel. Spire,
2. Timing Arguments
In addition to presenting the historical argument, the plan participants contend in essence that pension payments do not come within the constitutional prohibition because of their timing.
First, they argue that the prohibition in Article IV, Section 10, applies only to pay-merits received during the legislator’s term of office. They note that Sections 5, 6, 7, 8, 9, 11, 12, 13, and 14 of Article IV all refer only to legislative sessions; Article IV, Section 28, prohibits the appointment of legislators to certain offices only if the emoluments of the office were increased during the legislator’s term; and the prohibition in Article IV, Section 37, against members of the legislature using railroad passes implicitly applies only during the legislator’s term of office. They infer that in general Article IV governs only matters occurring during the legislator’s term of office.
We are not persuaded. Article IV is entitled “Legislative Department.” It is not surprising that an article on the legislature speaks primarily to events occurring during legislative sessions. When, however, the purpose of a section would be eviscerated by restricting it temporally, the limited scope of other provisions is immaterial. The plan participants’ argument proves too much. Under their interpretation of Article IV, Section 10, the legislature could enact a statute awarding each member a substantial stipend beginning on the January 1 after the member leaves office. Permitting such stipends would emasculate Article IV, Section 10. For any payment prohibited by Article IV, Section 10, during the term of office, the legislature could establish a functionally equivalent post-term payment. Deferring payment accomplishes nothing of substance. Neither the language nor the purpose of Article IV, Section 10, suggests that it applies only to compensation, perquisites, or allowances received during the term of office.
The plan participants’ second argument regarding timing is simply that the pension payments are too indirect, attenuated, remote, and uncertain to be prohibited by Article IV, Section 10. They rely on several state court decisions in support. Most are readily distinguishable on their facts, and all but one are distinguishable in that they interpret constitutional provisions similar to New Mexico’s Article IV, Section 28, not Article IV, Section 10.
The leading “remoteness” decision is State ex rel. Todd v. Reeves,
In Bulgo v. Enomoto,
In State ex rel. Lyons v. Guy,
In State ex rel. Johnson v. Nye,
In all the above cases the benefit to be received by the former legislator could reasonably be termed “remote.” The one case bearing a closer factual resemblance to the case on appeal is Brown v. Meyer,
In any event, there is one ground upon which Brown is readily distinguishable from the present appeal. This ground is shared by all of the remoteness decisions just discussed. Each decision addressed a constitutional provision similar to Article IV, Section 28, not- Article IV, Section 10. The two provisions are distinct in two important respects.
First, provisions like Article IV, Section 28, create a prohibition on public service. They therefore encounter a contrary public policy in favor of opportunity in seeking public office. Thus, the Texas Supreme Court wrote that “constitutional provisions which restrict the right to hold public office should be strictly construed against ineligibility.” Brown,
Second, the purpose of provisions like Article IV, Section 28, is to remove an incentive legislators may have to increase the pay of another public office. If a legislator can assume an office promptly after increasing the pay for the office, the legislator will have an improper motivation for increasing the pay. See State ex rel. Anaya,
In contrast, Article IV, Section 10, has no such limitation. It speaks in the broadest terms. Moreover, even if remoteness is a consideration under Article IV, Section 10, the test for remoteness should be different from the remoteness test under Article IV, Section 28. The important consideration under Article IV, Section 28, is whether the prospect of assuming a particular civil office would motivate a legislator to vote for a particular increase in the benefits of the office. The important consideration under Article IV, Section 10, is whether the legislature is enriching its members. Thus, the remoteness test under Article IV, Section 28, should look to the impact of the benefit on the motivation of a single legislator, whereas the remoteness test under Article IV, Section 10, should look to simply the benefit to the members of the legislature as a whole. The two tests may yield different results when applied to the same benefit. What may be a remote and contingent prospect for one person may be a virtual certainty for the group. For example, there may be doubt regarding whether a particular legislator will receive a pension payment, but there is no doubt that the pension statute will benefit some legislators and that state money will need to be expended to finance legislative pensions. In short, remoteness cases under provisions like Article IV, Section 28, may well be irrelevant' to analysis under Article IV, Section 10.
There remains to discuss the decision in Campbell, which interpreted a provision similar to Article IV, Section 10. Article VI, Section 33, of the West Virginia Constitution, enacted in 1872, had stated, “‘No other allowance or emolument than that by this section provided shall directly or indirectly be made or paid to the members of either house for postage, stationery, newspapers, or any other purpose whatever.’ ”
Having carefully considered the authorities cited by the plan participants, we are not dissuaded from agreeing with the Nebraska Supreme Court that for purposes of Article IV, Section 10, “[t]here is nothing imponderable and contingent about paying a specified monthly allowance such as is contemplated by the. plan before us.” State ex rel. Spire,
III. CONCLUSION
We hold that a state-financed pension plan for legislators is prohibited by the New Mexico Constitution. We therefore reverse the district court’s order. We remand for further proceedings regarding the claim for repayment of benefits received.
IT IS SO ORDERED.
Notes
. Because ordinarily the grant of a motion for summary judgment is a final, appealable order, the reference by the Supreme Court to the grant of a motion for summary judgment as being an interlocutory order must relate to a grant of summary judgment solely in favor of liability. See SCRA 1986, 1-056(C) (Repl.1992) ("A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.”).