Carper v. Board of County Com'rs of Eddy County

• Decision Date: 06 April 1953
• Docket Number: No. 5547,5547
• Citation: 57 N.M. 137,255 P.2d 673,1953 NMSC 22
• Parties: CARPER et al. v. BOARD OF COUNTY COM'RS OF EDDY COUNTY et al.
• Court: New Mexico Supreme Court

Page 673

255 P.2d 673

57 N.M. 137

CARPER et al. v. BOARD OF COUNTY COM'RS OF EDDY COUNTY et al.

No. 5547.

Supreme Court of New Mexico.

April 6, 1953.

N. Randolph Reese, Hobbs, for appellants.

Neil B. Watson, William M. Siegenthaler and Donald S. Bush, Artesia, for appellees.

COORS, Justice.

The important question for determination in this case is whether a petition presented to the Board of Commissioners of Eddy County to call an election to obtain necessary authorization from the voters for constructing two separate hospitals with isolation wards, pursuant to Laws 1947, Chapter 148, was legally sufficient, or whether it was fatally defective on the ground that it combines two separate propositions into one question.

At the March 3, 1952 meeting of the Board of County Commissioners of Eddy County, a petition signed by sufficient legally qualified electors of Eddy County was presented to the board in these words.

'Petition

'To the Board of County Commissioners of Eddy County, New Mexico.

'We, the undersigned qualified electors of Eddy County, New Mexico, hereby petition the Board of County Commissioners of Eddy County, New Mexico, to call an election in Eddy County, New Mexico, to take a vote on the one joint question or proposition of constructing two hospitals in and for Eddy County, New Mexico, each with an isolation ward, and equipping each hospital, and acquiring the land for each hospital, by means of the issuance of bonds of Eddy County, New Mexico, in the amount of $1,000,000.00 for the construction in Carlsbad, New Mexico, of one hospital with isolation ward, equipping such hospital, and acquiring the land therefor, and in the amount of $600,000.00, for the construction in Artesia, New Mexico, of one hospital with isolation ward, equipping such hospital, and acquiring the lands therefor.

'Wherefore, We respectfully pray that an election be called by Your Honorable Body as by the Statutes and Constitution made and provided.'

Ten days later, on March 13, the Board of County Commissioners 'disapproved' the petition upon advice of the District Attorney and refused to call an election. Six days later the plaintiffs, who are the appellees in this appeal, on behalf of themselves and others similarly situated, initiated a proceeding in mandamus to compel the Board of County Commissioners to call the election.

The defendants base their refusal to act on the petition upon the advice received from the District Attorney that the petition is void.

The trial court issued its alternative writ of mandamus directing that the Board either make the proper order calling the special election prayed for in the petition, issuing the necessary proclamation therefor upon such notice as the law requires, or in the alternative, that the Board and its members appear before the Court to show why such action was not taken.

No steps were taken by the Board to call the election in pursuance of the writ and the question in due course came before the Court for hearing. The Board members defended their position at the hearing upon the ground that action pursuant to the petition would cause them to violate Article 9, Section 10, of the New Mexico Constitution as well as the statutory law of this state for the reason that the election as called for by the petition would deprive the voters of their constitutional right to object to or approve of the construction of either hopsital separately. The defendants further took the position that they could not on their own initiative present the question as to each hospital to the voters separately since they were bound by the petition to submit the matter as one question under our holding in Dickinson v. Board of Commissioners of De Baca County, 1929, 34 N.M. 337, 281 P. 33, and that as a consequence, under their oath to uphold the Constitution, their only legal course of action available was to disapprove the petition.

The District Court concluded that the petition set out one joint proposition only and that an election should be called in accordance with the provisions of Chapter 148, Laws of 1947. It accordingly issued thereafter its Peremptory Writ of Mandamus ordering defendants to call the election submitting the matter of constructing and equipping the two hospitals, at Carlsbad and at Artesia respectively, to the voters. Defendants have appealed from that judgment, action upon the petition having been stayed until the cause is finally determined in this Court.

Article 9, Section 10 of the New Mexico Constitution provides:

'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.'

Hospitals were declared to be necessary public buildings by provisions of Laws 1947, Chapter 20, Section 1. That the Legislature could thus designate hospitals as necessary public buildings as that term is used in Section 10 of Article 9 of the New Mexico Constitution was established in Board of County Commissioners of Bernalillo County v. McCulloh, 1948, 52 N.M. 210 195 P.2d 1005. Laws 1947, Chapter 148, Section 1, further provides that '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 4 of Chapter 148, Laws 1947, reads thus:

'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 * * * 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 last three (3) consecutive weeks in any newspaper published in such county, which noticess 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. * * *' (Emphasis ours.)

It may be noted that the foregoing provisions of the statute were passed in light of the holding of this court in Lanigan v. Town of Gallup, 1913, 17 N.M. 627, 131 P. 997, wherein we declared that while two propositions may be submitted at the same election, or upon the same ballot, each proposition must stand alone so that the voter has an opportunity to express his choice upon each question independent of the other. The language of the 1947 act leaves no doubt that the Legislature regarded the construction of each hospital, with or without an isolation ward, as a separate and independent proposition.

Dickinson v. Board of Commissioners of De Baca County, supra [34 N.M. 337, 281 P. 34], held that a petition filed under Code 1915, Section 1159, asking that a vote be taken upon two bond issues, one for a courthouse and the other for jail purposes, did not authorize the submission thereof by ballot as a joint proposition, and an election at which the ballot submitted the proposition as, for or against 'courthouse and jail bonds', was declared null and void. The section of the statutes involved in the Dickinson case, which is carried forward as Section 15-4604 in N.M. Statutes Annotated, 1941 Compilation, is in all material respects identical with the provision of the 1947 act primarily involved herein. The section under consideration in the Dickinson case read:

'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 by taken on the question or proposition of building a court house, or jail, or a bridge, 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 thirty (30) days thereafter in such county, and shall give notice of such election by publication 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 or bridge proposed to be built, and which bonds are to be voted for: * * *.' (Emphasis ours.)

It does not require straining of the imagination to conclude that the 1947 provision relating to county hospitals was consciously patterned after the above provision.

In the instant case, where two hospitals are proposed to be built and different amounts of bonds are proposed to be sold for each and the hospitals to be built therewith are to be located in different towns, some thirty-five miles apart, at least four possible ways of voting exist. Some voters might wish to vote 'yes' for each of the hospitals to be built at Artesia and at Carlsbad, some might wish to vote 'no' for each hospital; some might wish to vote 'yes' for the hospital at Carlsbad and 'no' for Artesia, and still others might want to vote 'yes' for Artesia and 'no' for Carlsbad. Since it is the voter's money...