16 N.M. 135 | N.M. | 1911
Lead Opinion
OPINION OP THE COURT.
Dissenting Opinion
DISSENTING OPINION.
(Dissenting) — I am unable to concur in the opinion of the court that by Chapter 122, of the Laws of 1909,, it was the legislative intention to deprive cities of the right, which theretofore they had, to require their treasurers to keep the city funds in banks designated by the cities themselves. A casual reading of the statute would, it is true, naturally give the impression that such was tfie meaning of its makers. It is, however, a cardinal principle of statutory construction that after a statutory system, or policy, has been long established, and is well defined, it will -not be lightly presumed to be departed from or abandoned. Lewis’ Sutherland on Stat. Const., Sec. 581, 'and cases cited. In applying that principle, the Supreme Court'of the United States, in Parsons v. The United States, 167 U. S. 328, went so far as to hold that Section 769, Revised Statutes U. S., “District attorneys shall bo appointed for a term of four years, and their commission shall cease and expire at the expiration of four years from their respective dates,” did not mean that district attorneys were entitled to hold office four years, but that they should not hold more than four years, because to hold otherwise would be to run counter to the general purpose' of Congress, gathered from other of its acts, that it would not undertake to interfere with the President’s power to remove from office by creating a fixed term for an officer. It cannot be doubted that if the meaning of the statute in question is that claimed for it by appellee, it is in conflict with what has stood for many years as the policy of the Territory toward cities, and the principles on which that policy was based. The statute law of the Territory was clearly designed to give to cities practically complete self-government and control of the money they were authorized to raise by taxation. Section 2402, C. L. 1891, alone contains more than one hundred separate grants of power to cities, - and other sections of the same chapter many more. Some of the more significant are: “Section 2424: The corporate authority of cities organized under this act shall be vested in a mayor and a board of aldermen to be denominated the city council, together with such officers as are in this act mentioned, or may be qreated upon its authority.” “Section 2403: Municipal corporations shall have power to make and publish, from time to time, ordinances not inconsistent with the laws of,the Territory, for carrying into effect or discharging the powers and duties conferred by this act, and such as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort, and convenience of such corporations and the inhabitants thereof.” “Section 2462: The city council shall possess all the powers granted in this act, and (all) other corporate powers of the city, not herein, or by some ordinance of the city council conferred on some officer of the city; they shall have the inanagement and control of the finances and all the propertjq real and personal, belonging to the corporation x x x.” “Section 2461: The qualified electors of each city shall also elect, by a plurality of votes, a city treasurer, who shall hold his office for one year, and shall have such powers and perform such duties as are prescribed in this act, or by ordinance of the city council not inconsistent' herewith.” “Section 2420: The treasurer shall receive all moneys belonging to the corporation, and shall keep his books and accounts in such manner as may be prescribed by ordinance x x x x x." "Section 2424: He may be required to keep all moneys in his hands belonging to the corporation in such place of deposit as may be designated by ordinance: Provided, however, no such ordinance shall 'be passed, by which the custody of such money shall be taken from the treasurer. The treasurer shall keep all moncj'-s belonging to the corporation in his hands, separate and distinct from; his own moneys, and he is hereby expressly prohibited from using, either directly or indirectly, the corporation money or warrants in his custody and keepiing, for his own use or benefit, or that of any other person or persons whomsoever x x x x." “Section 2419: The treasurer shall give a bond to the city or town in its corporate name, with good and sufficient sureties, to be approved by vote of the council or board of trustees, in such sum as the council, or trustees, may require, and conditioned for the faithful performance of his duties as treasurer of .such city or town so long as he shall serve as such treasurer, and that when he shall vacate such office, he will turn over and deliver to his successor, all moneys, books, papers, property, or things belonging to such city or town and remaining in his charge as such treasurer." With all the sections above quoted, the statute under consideration is at war, and that in a way clearly to promote injustice and dishonesty. It purports to direct a treasurer to designate a bank, organized under the laws of the United States or of New Mexico, as the depository of the city funds in his hands, and required of such depository a bond in half the amount of the collections of the preceding year, and then follows the extraordinary provision that the treasurer on depositing money with said bank, of his own selection, shall be exempt from liability if the depository fails to account for the money. There'would be reason in exempting a treasurer from liability for money deposited in a bank selected by the city in which he is required by ordinance to deposit, but none,- that we can perceive, for so exempting him when the selection is made by himself. What might not unnaturally happen is easily perceived. There may be a national'bank with a capital of only twenty-five thousand dollars. The amount of the bond required of the depository designated by the treasurer, in the present instance, based on the collections of the preceding year, as we understood from statements of counsel in argument which were not questioned, would be only fifty thousand dollars. Yet it appears that the treasurer of Albuquerque had in his hands, belonging to the city, more than one hundred and seventy-five thousand dollars, probably about two hundred and fifty thousand dollars, made up, in part, presumably, of some special fund, such as a city might have on hand for the construction of public works, and which probably would not fall under the head of "collections,” for fixing the amount of the treasurer’s bond. From a pecuniary standpoint, it might be profitable for a bank with a small capital to forfeit its bond, go out of business, and divide with the depositing treasurer the profits of the enterprise. Further, in the same line, it appears that under this statute it would be impossible for a city to obtain interest for the use of its money so deposited by its treasurer, since the money would be put wholly beyond its control, except for the payment of claims against it. The law prohibits a treasurer from using the money of the city in his hands for his own use or benefit, or that of any other person. Sec. 2424, supra, but it would be difficult to devise a system better calculated than the one it is urged this statute contains, to facilitate such a use without detection. It is suggested in the brief for the appellee, although it does not so appear in the record, that the depository designated by the defendant, the treasurer of Albuquerque, has given a bond in the sum of two hundred and fifty thousand dollars, and has paid the city three per cent for the use of the money deposited by the treasurer with it. But it was not required so to do by the statute. -The fact, assuming it to be one, since it is not questioned, that the defendant treasurer and the depository designated by him are of unimpeachable financial standing and integrity, and would not, in any way, take-advantage of the facilities for wronging the city, which the statute affords, that does not, in the least, tend to prove that other treasurers and depositories would be as forbearing. Eather is this voluntary action of the depository bank, in going beyond the apparent requirements of the law, an admission of the inadequacy of the law properly to protect the interests of the city, and of the injustice of its provisions, taken literally, toward the city. But, it is said, “Statutes will be construed in the most beneficial way which their language will permit, to prevent absurdity, hardship or injustice, to favor public convenience, and to oppose all prejudice to public interests.” Lewis’ Suth. Stat. Cons., 2 ed., sec. 490. See, also, Lau Ow Bew v. United States, 144 U. S. 47; Tsoi Sim v. United States, 116 Fed. 920. “When the literal enforcement of a statute would result in great inconvenience and cause great injustice, and lead to consequences which are absurd, and which the legislature could never have contemplated, the courts are bound to presume that such consequences were not intended, and adopt a construction which will promote the ends of justice and avoid the absurdity.” Lewis’ Suth. Stat. Cons., Sec. 489; People v. Chicago, 152 Ill. 546, 552, 38 N. E. 744. “Consideration of convenience, justice and reasonableness, when they can be invoked against the implication of repeal, are always very potent.” People etc. v. Raymond etc., 186 Ill. 407, 57 N. E. 1066. To the considerations which we have named, should be joined the familiar one that repeals by implication are not favored. “Pepeáis by implication are not favored.” “It is the duty of the courts to so construe the acts, if possible, that both shall be operative.” Lewis Suth. Stat. Cons., Sec. 247. And the use of a general repealing clause of “all inconsistent acts and parts of acts,” adds nothing to the repealing effect of repugnancy itself. Lewis’ Stat. Cons., Sec. 256. Plainly, then, we should next consider whether Chapter 122, of the Laws of 1909, is necessarily so repugnant to the provisions of Sections 2424 and 2462, C. L. 1897, as that the two cannot stand together, since otherwise both should be held effective. “There must be such a manifest and total repugnance that the two enactments cannot stand.” McCool v. Smith, 66 U. S. 459. The fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. 36 Cyc. 1106. Closely allied is the rule that the spirit or reason of the law will prevail over its letter. Especially is this rule applicable when the literal meaning is absurd, or, if given effect, would work injustice, or where the provision was inserted through inadvertance. 36 Cyc. 1108, 1109; Pond v. Maddox, 38 Cal. 572. Every statute must be construed with reference to the object intended to be accomplished by it. Our first inquiry, in order to ascertain the meaning of the legislature should be for the object of the statute. “It is indispensable to a correct understanding of a statute, to inquire first what is the subject of it, what object is intended to be accomplished by it x x x when the intention can be collected from the statute. Words may be modified, altered, or supplied, so as to obviate any repugnancy or inconsistency with such intention.” Lewis Suth. Stat. Cons., Sec. 347. “The- intention of an act will prevail over the literal sense of its terms.” Lewis Suth. Stat. Cons., Sec. 348.
Fortunately, the object, or at least, the main purpose, of the statute in question is not in doubt. By Chapter 106, Session Laws of 1905, the treasurer of the Territory and county, and municipal treasurers, were required to give bonds with surety companies as sureties, whereas, before that time, personal sureties, who, as a matter of common knowledge, generally charged nothing for the favor, were accepted. The change imposed on the treasurers affected the burden of paying the surety companies, in many cases, considerable sums. The statute under consideration was clearly intended primarily to relieve treasurers from that burden. Obviously, it was drawn without the degree of care necessary to commiend it to us as a clear expression of legislative intent. The repealing clause declares the repeal of Chapter 106, supra, and all acts and parts of acts in conflict “therewith,” instead of “herewith,” which was undoubtedly the word meant. It seems clear, too, that a provision requiring the depositories designated by municipal treasurers to give'bonds to the Territory of New Mexico, was included by inadvertance in connection with the requirements that depositories designated by county treasurers should pursue that course. The requirement that the municipal treasurers themselves should give bonds to their respective municipalities was not changed, and no reason is perceived why the requirement for depositories should have been intentionally made different. Of more importance is the fact that it is left uncertain whether it was meant to include city treasurers under the phrase “municipal treasurers,” in the third section of the' act. Counsel for the appellant makes what is, at least, a plausible argument against that construction, mainly from the fact that in the first section of the act the words, “county, city or municipality,” occur twice, indicating a distinction in the legislative mind between “city” and “municipality.” While there, is no presumption that the meaning of a word repeatedly used in a statute is the same throughout, (Rhodes v. Weldie, 16 Ohio St. 242; Pitts v. Shipley, 46 Cal. 161), I think that,, in view of the statute definition of “municipal corporations,” as including “cities and incorporated towns,” Sec. 2452, C. L. 1897, and of the language of Chapter 106, Laws of 1905, in which city treasurers are distinctly named, and for which statute that of 1909 was clearly designed to be substituted, it would be giving too narrow a construction to hold that the statute was not meant to apply to city treasurers. It is proper, however, to allow these manifest defects of expression in the statute their due weight, in construing other portions of it to which doubt is attached. If there was clearly failure to express the meaning intended on some points, there is some degree of probability that there was a like failure as to other points.
It appears, theta, that the; construction contended for by the appellee would run counter to each of these several rules of construction referred to, and “courts will give cumulative effect” to such antagonism. State v. Lowry, Ind., 9 A. & E. Ann. Case 350. Lewis v. State, Id.
It remains then to determine whether the statute in question can properly be given a meaning not repugnant to that of the law requiring city treasurers to deposit the money of the city as directed by ordinance. Certainly, what appears to be the chief object of- the later statute, the exemption from the burden of paying for surety company bonds, would be accomplished in that way as fully as. if the treasurers themselves selected the depositories, and if it be assumed that another object was to enable treasurers to escape liability for the default of the bank, that, too, would be effectuated by their designating as depositories the banks specified by the cities. Replying to the argument to that effect in the appellant’s brief, the brief for the appellees asks, “why not the city council select the depository designated by the treasurer?” If the rights of the owner of property are not to be considered as paramount to those of the agent, or servant, to whom the property is entrusted for a definite purpose, nothing can be said in reply to that suggestion. If, however, the owner’s rights are paramount and should be protected, then nothing need be said by way of reply. There remains no other object to be accomplished by the statute, unless it be, as already suggested, to enable treasurers to avoid the prohibition against using the public funds in their hands for their own benefit, and such an object is not to- be attributed to the legislature. A construction “which enables one to profit by his own wrong” is not favored. Beal’s Cardinal Principles of Legal Interpretation, pp. 345-9, citing Gowan v. Wright, (1886) 18 Q. B. D. 201. Said Lord Coleridge, C. J., in The Queen v. Clarence, 22 Q. B. D., 23 at p. 65 (1888), cited in Beal’s Cardinal Principles, supra, pp. 326, 327: “If the apparent logical construction of its language leads to results which it is impossible to believe that those who framed or those who passed the statute contemplated, and from;- which one’s own judgment recoils, there is, in my opinion, good reason for believing that the construction which leads to such results cannot be the true construction of the statute.”