Bd. of Com'rs of Guadalupe County v. State

• Decision Date: 19 June 1939
• Docket Number: No. 4480.,4480.
• Citation: 43 N.M. 409,94 P.2d 515
• Parties: BOARD OF COM'RS OF GUADALUPE COUNTYv.STATE et al.
• Court: New Mexico Supreme Court

43 N.M. 409

94 P.2d 515

BOARD OF COM'RS OF GUADALUPE COUNTY

v.STATE et al.

No. 4480.

Supreme Court of New Mexico.

June 19, 1939.Rehearing Denied Oct. 20, 1939.

Appeal from District Court, Santa Fe County; David Chavez, Jr., Judge.

Suit by the Board of County Commissioners of the County of Guadalupe against the State of New Mexico and another for a declaratory judgment with respect to the authority of the county to issue bonds for purpose of remodeling the county court-house. From a judgment overruling a demurrer to the complaint, defendants appeal.

Reversed and cause remanded, with directions to sustain the demurrer.

Whether questions submitted to electors by county with respect to whether bonds should be issued sufficiently describes purpose for which money shall be expended must be viewed from standpoint of taxpayer when he votes on the question and from his standpoint when he sees the money expended in determining whether money might be applied to purpose other than that for which it was obtained. Comp.St.1929, § 33-3901; Const. art. 9, § 10.

Filo M. Sedillo, Atty. Gen., Fred J. Federici, Asst. Atty. Gen., and Richard E. Manson, of Santa Fe, for appellants.

Joseph T. Cole, Jr., of Santa Rosa, and M. E. Noble, of Las Vegas, for appellee.

BICKLEY, Chief Justice.

A petition was presented to appellee to call a bond election to submit to the qualified electors of Guadalupe County the question of whether or not bonds shall be issued in the sum of $35,000, “the proceeds of which shall be used for the purpose of remodeling the County Court House of Guadalupe County and building an addition thereto.” (Emphasis ours.)

Pursuant to such petition an election was called and held, the question submitted being in conformity with the petition. The election resulted in approval of the issue.

The State, through its Treasurer, in response to a request made a bid for the bonds, subject to the approving opinion of the Attorney General or of an attorney of the selection of the State Treasurer. This bid was accepted. Thereupon, appellee by resolution proceeded to authorize the issuance of the bonds. Appellants, acting under advice of counsel, declined to complete the purchase of the bonds because as they construed Article IX, Sec. 10, of the Constitution, the county had no authority to issue bonds for the purpose of remodeling the court house and building an addition thereto but had authority only to issue bonds for the purpose of “building a court house.” This resulted in the filing of a complaint by appellee seeking a declaratory judgment alleging facts substantially as above set out. A demurrer was interposed by appellants questioning the sufficiency of the allegation therein to constitute a cause of action. The demurrer was overruled and this appeal was taken from the judgment of the court rendered upon the pleadings in said cause upon appellants' refusal to answer or plead further.

The sole question presented is whether or not under the provisions of Article IX, Sec. 10, of the Constitution and controlling statutes counties can issue bonds for the purpose of remodeling a court house.

[1] It is axiomatic that counties have no inherent power to borrow money or issue bonds and can only do so pursuant to authority granted by statute or by the Constitution.

[2] We do not find that with us counties derive power to issue bonds from the Constitution. Article IX, Section 10, of the Constitution of New Mexico is a limitation upon and not a grant of power. Said section is as follows: “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.”

[3][4] Counties derive power to issue bonds “for the purpose of building court houses, jails and bridges” from § 33-3901, N. M. S. A.1929 Comp. (enacted 1891).

It is not controverted that “erecting” a court house and “building” a court house mean the same thing. The terms “erecting” and “building” are of such similarity of meaning that it may be said that they invariably mean the same thing. As a starting point it may be said that in the submission of questions as to the issuance of bonds, the use of words which necessarily and invariably are of the same import as words employed in the grant of power or in the limitations on the power will not invalidate the issue although it is not apparent why those who have in charge such matters choose to use synonyms when the words of the statute granting the power are available and preferable.

We assume that had the question submitted been limited to “building an addition” to the existing court house, which in common parlance contemplates a new building or structure, the present controversy would not have arisen.

The question is: Does the phrase “for the purpose of remodeling the county court house” included in the proposition submitted invalidate the issue?

In considering this question a glance at legislative enactments existing at the time of the adoption of the Constitution and other enactments will be helpful.

It appears from an examination of §§ 33-5601, through § 33-5608, N.M.S.A.1929 Comp., that Boards of County Commissioners have power to levy a tax annually for the purpose of creating a fund with which “to provide a court house”, such fund to be designated “court house building fund.” That power was supplemented by the authority to anticipate the levy for any one year by borrowing money, against the amount of the levies provided for in the statute. See § 33-5604, N.M.S.A.1929 Comp. They are also authorized to cause to be levied a tax for the purpose of making needed repairs on county court houses and county jails. The product of such levies shall be kept separate and apart in the fund to be known as the “court house repair fund” and not used for any other purpose. As to such power, the legislature did not see fit to add the power to borrow money by anticipating the collection of tax levies.

Attention is also directed to our statute establishing a lien on behalf of mechanics and materialmen. Sec. 82-202, N.M.S.A. 1929 Comp., provides that: “Every person performing labor upon, or furnishing materials to be used in the construction alteration or repair of any *** building *** has a lien upon the same,” etc. (Italics ours.) This statute was enacted in 1880 and is unchanged. It is apparent that the lawmakers understood that construction, alteration and repair are words having a different signification. If invariably “construction” includes alterations and repairs, all three words would not have been employed.

In 3 Words & Phrases, First Series, p. 2453, under the word “erect” we find the following:

“Where the structure of a building is so completely changed that in common parlance it may be properly called a new building or a rebuilding, the process of change is such an erection or construction of a building as to be within the meaning of that phrase as used in laws giving mechanics' liens. Smith v. Nelson (Pa.) 2 Phila. 113, 114.”

“‘Erected,’ as used in a mechanic's lien law, giving a mechanic's lien on every building erected by mechanics, is not used strictly, and applied to the erection of new buildings, but includes, as well, a structure which was so completely changed in repairing that in common parlance it may be properly called a ‘new building’ or a ‘rebuilding.’ Thus, where every part of an old building is removed, except the back wall and part of the side walls, and the openings in them are changed, and the whole internal structure and external form of the building are changed, both as to its length and height, such a building is erected, within the meaning of the law. Armstrong v. Ware, 20 Pa. (8 Harris) 519, 520.”

“Every change, alteration, or addition in or to an existing structure does not constitute an ‘erection or construction of a building,’ within the meaning of that phrase as used in laws giving mechanics' liens. The change or alteration must be such that the whole structure, as changed or altered, would commonly be regarded as another new and different building; and the addition of a back building to a main structure -as, for instance, a bathhouse and kitchen to a residence-is not an erection or construction of a building. Rand v. Mann (Pa.) 3 Phila. 429.”

It must be presumed that when the Constitution makers wrote the Constitution and considered the power of counties with respect to taxation and the power to borrow money and in writing the limitations on the power to borrow money, they were aware of the power the counties theretofore had to borrow money “for the purpose of building court houses, jails and bridges” because in Article IX, Section 10, they limited the power to “erecting necessary public buildings” but left it open to the legislature to extend the power to include the borrowing of money to “repairing public roads and bridges.” May we say that the constitution makers, while thus discriminating in the use of words, contemplated that in limiting the borrowing power to securing funds for the purpose of “erecting necessary public buildings” the authorities could also without offending the Constitution borrow money to repair or remodel or make similar improvements in public buildings? Undoubtedly the repair of a building may involve remodeling of it. Frequently the terms repair and remodel are used interchangeably. But we assume that “remodel” is a word of larger signification than “repair.” We quote from appellee's brief definitions of “remodel” there assembled:

“The Universal Dictionary of the English Language, in defining ‘remodel’ says:

“‘Remodel-To model, shape, form, fashion, afresh, to recast.’

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