Board of Ed. of Village of Cimarron v. Maloney

• Decision Date: 07 December 1970
• Docket Number: No. 9160,9160
• Citation: 1970 NMSC 146,82 N.M. 167,477 P.2d 605
• Parties: BOARD OF EDUCATION OF the VILLAGE OF CIMARRON, New Mexico, and J. Leslie Davis, W. C. Littrell, William D. Hickman, Lawrence Rosso, and Eloy Sanchez, members of its governing board, Relators, v. James A. MALONEY, Attorney General of the State of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 605

477 P.2d 605

82 N.M. 167

BOARD OF EDUCATION OF the VILLAGE OF CIMARRON, New Mexico and J. Leslie Davis, W. C. Littrell, William D Hickman, Lawrence Rosso, and Eloy Sanchez, members of its governing board Relators, v. James A. MALONEY, Attorney General of the State of New Mexico, Respondent.

No. 9160.

Supreme Court of New Mexico.

Dec. 7, 1970.

Thomas A. Donnelly, Catron, Catron & Donnelly, Santa Fe, for relators

James A. Maloney, Atty. Gen., Mark B. Thompson, III, Asst. Atty. Gen., Santa Fe, for respondent.

Kegel & McCulloh, Santa Fe, amicus curiae.

OPINION

TACKETT, Justice.

Relators, Board of Education of the Village of Cimarron, New Mexico, filed a petition for a writ of mandamus in the Supreme Court on November 12, 1970. An alternative writ was issued, directed to the respondent James A. Maloney, Attorney General, ordering him to approve the bond transcript submitted by relators or, in the alternative, to respond to the writ. The Attorney General filed a response.

Relators, on September 29, 1970, held a special school bond election for the purpose of voting on the question of whether Cimarron Municipal School District No. 3, Colfax County, New Mexico, should create a debt by issuing its general obligation bonds in the total sum of $97,000 for the purpose of erecting, furnishing, remodeling and making additions to school buildings, and purchasing and improving school grounds in the district.

At the time of the election, relators did not maintain separate ballot boxes during the balloting, so as to segregate the votes of qualified electors of the school district, who were the owners of real estate within the district, from the votes of those qualified electors who did not own real estate within the district. This 'dual ballot box procedure' was provided for by § 11--6--38, N.M.S.A., 1953 Comp. (1970 Supp.).

The vote was in favor of the issuance of the school bonds. Relators submitted a complete transcript of the bond election proceedings to respondent, seeking his certification of approval of the bond issue as to form and legality. Respondent refused to approve the legality of the bond issue, for the reason that there was no showing that a majority of the then owners of real estate within the school district had voted in favor of creating the general obligation bond debt as required by Art. IX, § 11, New Mexico Constitution, and because the election was not conducted with dual ballot boxes as provided for by § 11--6--38, supra.

The issue before us is that part of Art. IX, § 11, Constitution of New Mexico, which provides inter alia that:

'* * * only when the proposition to create the debt has been submitted to a vote of such qualified electors of the district as are owners of real estate within such school district, and a majority of those voting on the question have voted in favor of creating such debt. * * *'

The Constitutions of several states, notably Arizona, Colorado, Louisiana and Utah, had statutes similar to our constitutional provision that only allowed 'owners of real estate' to vote on the question of creating debt through the issuance of general obligation bonds.

The Supreme Court of the United States has considered the very same question now before this court and has declared that a provision in a state constitution, which only allows owners of real estate to vote on the question of creating a debt through the issuance of bonds, is unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. City of Phoenix, Ariz. v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Stewart v. Parish School Board of Parish of St. Charles, 310 F.Supp. 1172 (E.D.La.1970); Pike v. School District No. 11 in El Paso County, Colorado, Colo., 474 P.2d 162 (1970); Cypert v. Washington County School District, Utah, 473 P.2d 887 (1970).

This court is totally in agreement with the statement contained in the Utah case, supra, as follows:

'Nothwithstanding our emphatic disagreement with the majority in the Phoenix case (399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523), we realize that it is for the present to be recognized as the law; and that as such it renders those aspects of Section 3 of Article XIV of our State Constitution, and Sections 11--14--2 and 5, U.C.A.1953 (New Mexico Constitution Art. IX, § 11), inoperable insofar as they require that only property taxpayers (real property owners) be permitted to vote in such bond...