195 P.2d 1005 (N.M. 1948), 5096, Board of County Com'rs of Bernalillo County v. McCulloh

Docket Nº:5096.
Citation:195 P.2d 1005, 52 N.M. 210, 1948 -NMSC- 028
Opinion Judge:BRICE, Chief Justice.
Party Name:BOARD OF COUNTY COM'RS OF BERNALILLO COUNTY v. McCULLOH, Atty. Gen.
Attorney:[52 N.M. 212] M. Ralph Brown, Dist. Atty., and Harry D. Robins, Asst. Dist. Atty., both of Albuquerque, for relator. C. C. McCulloh, Atty. Gen. and Robert V. Wollard, Asst. Atty. Gen., for respondent. A. T. Hannett and George Hannett, both of Albuquerque, amici curiae.
Judge Panel:LUJAN and COMPTON, JJ., concur. SADLER and McGHEE, Justices (dissenting).
Case Date:June 21, 1948
Court:Supreme Court of New Mexico

Page 1005

195 P.2d 1005 (N.M. 1948)

52 N.M. 210, 1948 -NMSC- 028

BOARD OF COUNTY COM'RS OF BERNALILLO COUNTY

v.

McCULLOH, Atty. Gen.

No. 5096.

Supreme Court of New Mexico

June 21, 1948

Original mandamus action by the Board of County Commissioners of Bernalillo County, relator, against Clyde C. McCulloh, Attorney General of the State of New Mexico, respondent, to compel the respondent to approve bonds of the County of Bernalillo for purpose of constructing a county hospital with isolation ward.

Writ of mandamus made permanent.

[52 N.M. 212] M. Ralph Brown, Dist. Atty., and Harry D. Robins, Asst. Dist. Atty., both of Albuquerque, for relator.

Page 1006

C. C. McCulloh, Atty. Gen. and Robert V. Wollard, Asst. Atty. Gen., for respondent.

A. T. Hannett and George Hannett, both of Albuquerque, amici curiae.

BRICE, Chief Justice.

This is an original action of mandamus brought in this court to compel the respondent, Clyde C. McCulloh, Attorney General of the State of New Mexico to approve bonds of the County of Bernalillo issued as authorized by Ch. 148, N.M.Laws of 1947, for the purpose of constructing a county hospital with isolation ward, equipping such hospital and isolation ward, and acquiring the land on which to construct the necessary building. An alternative writ was issued upon application of the relator, in which the Attorney General was commanded to forthwith approve the bonds or to show cause why he has not done so. The Attorney General has filed his return, in which he states:

'Respondent admits that the hospital bond election held and conducted by Relator was in full conformity with Chapter 148 of the New Mexico Laws of 1947, Chapter 7, Article 6, Chapter 15, New Mexico Statutes Annotated, 1941 Compilation, and Chapter 20 of the Laws of New Mexico of 1947, and that the results of same were properly canvassed and the results duly published as provided by law.

'Respondent, further answering and responding to said Alternative Writ of Mandamus, admits that it is a ministerial duty of his office to approve as to form all valid bond issues as a prerequisite to the purchase of same by the State of New Mexico.

'That the said Writ of Mandamus shows upon its face that bonds issued under the proceedings had herein are void for the reason that Chapter 148 of the New Mexico Laws of 1947 is unconstitutional insofar as it authorizes a county to issue general obligation bonds for the purpose of equipping a county hospital and isolation wards, and for the purchase of necessary land therefor, as same violates Article 9, Section 10 of the New Mexico Constitution which limits the purpose for which a county may borrow money to that of erecting necessary public buildings.

'Wherefore, it is respectfully submitted that the Alternative Writ of Mandamus should be dissolved for the reason aforesaid.'

[52 N.M. 213] The treasurer of the State of New Mexico was the highest bidder for this issue of bonds, but he has refused to buy them unless and until they are approved by the Attorney General as required by law before the state may purchase them.

The provisions of Ch. 148, N.M.Laws 1947, which authorize the issuance of county bonds 'to construct, purchase, own, maintain and operate hospitals, including isolation wards, and to purchase the necessary lands therefor; * * *.' as stated in the title of the act, are as follows:

'Section 1. All counties shall have the power to construct, purchase, own, maintain and operate hospitals, including isolation wards, and to purchase the necessary land therefor.

'Section 2. All such counties may, for the purpose of maintaining and operating such hospitals and isolation wards, levy and collect taxes in the same manner as taxes for other general purposes are levied and collected in such counties.

'Section 3. All such counties shall have the power to issue bonds for the construction or purchase and equipping of such hospitals and isolation wards, and for the purchase of necessary land therefor.

'Section 4. Whenever a petition signed by not less than two hundred (200) qualified electors of any county in this state shall be presented to the board of county commissioners of the particular county, asking that a vote be taken on the question or proposition of constructing or purchasing a hospital and isolation ward and acquiring the land therefor, setting forth in general terms the object of such petition and the amount of bonds asked to be voted for, it shall be the duty of the board of county commissioners of such county to which said petition may be presented, within ten (10) days after the presentation, to call an election to be held within sixty (60) days thereafter in such

Page 1007

county, and shall give notice of such election by publication once a week for at least three (3) consecutive weeks in any newspaper published in such county, which notices shall set forth the time and place of holding such election, the hospital and isolation ward proposed to be built or purchased, and the land to be acquired, and which bonds are to be voted for. * * * A bond election as above provided may also be called by the county commissioners, without any petition, after said commissioners have made a resolution calling such an election, which resolution shall set forth the object of the election and the amount of bonds to be issued.

* * *

* * *

'Section 9. All such counties are hereby authorized to do all acts and make all regulations which may be necessary or expedient for the promotion of this Act.'

[52 N.M. 214] There is no question raised as to the constitutionality of Article 46 of Ch. 15, N.M.Sts.1941, as amended by Ch. 20, N.M.Laws 1947. The original law provided in great detail for the issuance of county bonds for the building of a courthouse, jail, and bridges; the conducting of an election for their approval by the qualified electors of the county, the form of the bond, the interest rate, and the term for which such bonds may be issued.

The amendment of 1947 added the words 'and hospitals' after the words 'courthouses, jails and bridges' in Sec. 15-4601, after which the section now reads:

'The boards of county commissioners in this state are hereby authorized and empowered to issue the bonds of such county, in any sum necessary, not greater that four (4) per cent, inclusive of all other bonded indebtedness, of the assessed value of the taxable property of said county, for the purpose of building courthouses, jails, bridges and hospitals.'

Sec. 15-4604 was amended by adding the words 'or hospital' in two places, so that the part of that section material here, now reads:

'Whenever a petition signed by not less than two hundred (200) qualified electors of any county in this state shall be presented to the board of county commissioners, asking that a vote be taken on the question or proposition of building a court house, jail, bridge or hospital, setting forth in general terms the object of such petition and the amount of bonds asked to be voted for, it shall be the duty of the board of county commissioners of such county to which said petition may be presented, within ten (10) days after the presentation, to call an election to be held within sixty (60) days thereafter in such county, and shall give notice of such election by publication once a week for at least three (3) consecutive weeks in any newspaper published in such county, which notices shall set forth the time and place of holding such election, the court house, jail, bridge or hospital proposed to be built and which bonds are to be voted for.'

The original act is not otherwise amended, except to add some sections applicable only to hospitals. No question is raised as to the right of the county to erect a building to be used as a hospital if it is built and paid for as provided by this act.

All of the proceedings of the Board of County Commissioners of Bernalillo County provided for the issuance of bonds 'for the construction of a county hospital with isolation wards, equipping such hospital and isolation ward, acquiring the land therefor' etc.

The ballot by which the question was submitted to the qualified electors was in form as follows:

'Bond Election for Bernalillo County New Mexico

[52 N.M. 215] FOR the issuance of bonds of the County of Bernalillo, in the total sum of $1,000,000.00 for the construction of a County Hospital with Isolation Ward, equipping such Hospital and Isolation Ward, and acquiring the land therefor.

AGAINST the issuance of bonds of the County of Bernalillo in the total sum of $1,000,000.00 for the construction of a County Hospital with Isolation Ward, equipping such Hospital and Isolation Ward, and acquiring the land therefor.'

appearing both in English and Spanish.

The vote was 1211 for the issuance of the bonds and 151 against it.

Page 1008

Sec. 10 of Article 9 of the State Constitution reads:

'No county shall borrow money except for the purpose of erecting necessary public buildings or constructing or repairing public roads and bridges, and in such cases only after the proposition to create such debt shall have been submitted to the qualified electors of the county who paid a property tax therein during the preceding year and approved by a majority of those voting thereon. No bonds issued for such purpose shall run for more than fifty years.'

We are of the opinion that a county hospital building is 'a necessary public building,' as that phrase is used in Sec. 10 of Art. 9 of this state's Constitution. This was the legislature's construction, and we are satisfied that it is correct. Hutcheson v. Atherton, 44 N.M. 144, 99 P.2d 462.

The bonds have been issued for the purpose of 'constructing and equipping a hospital and isolation ward, and for the purchase of necessary land therefor.' Is this purpose (or purposes) within the prohibition of Sec. 10 of Art. 9 of the state Constitution, which provides 'no county shall...

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