Daniels v. Watson

• Decision Date: 17 January 1966
• Docket Number: No. 7987,7987
• Parties: Jack DANIELS, Hobby Gann and James M. Murray, Jr., Plaintiffs-Appellants, v. Finn WATSON, F. L. Heidel, F. D. Caster, George Mansur and R. L. McLean, as Members of the New Mexico Junior College Board, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 193

410 P.2d 193

75 N.M. 661

Jack DANIELS, Hobby Gann and James M. Murray, Jr. Plaintiffs-Appellants, v. Finn WATSON, F. L. Heidel, F. D. Caster, George Mansur and R. L. McLean, as Members of the New Mexico Junior College Board, Defendants-Appellees.

No. 7987.

Supreme Court of New Mexico.

Jan. 17, 1966.

Potter & Payne, Lovington, for appellants.

Easley & Pyatt, Hobbs, for appellees.

CARMODY, Chief Justice.

This is an appeal from the judgment of the district court, holding the Junior College Act to be constitutional and dismissing the complaint filed by the plaintiffs.

The 'Junior College Act' was enacted by ch. 17 of the Session Laws of 1963 (Secs. 73-33-1 to 73-33-20, N.M.S.A.1953), and was partially amended by ch. 16 of the first special session of the legislature in 1964. The Act states its purpose as follows:

'The purpose of the Junior College Act [73-33-1 to 73-33-20] is to provide for the creation of local junior colleges and to extend the privilege of a basic vocational, technological or higher education to all persons who are qualified to pursue the courses of study offered. Provided further, however, that it is the intent of this legislation not to call upon future legislatures for state financial help.' Sec. 73-33-3, N.M.S.A.1953 (Supp.1965).

In general, it provides for the formation of the junior college districts, for the elections concerning the formation of the districts and the selection of the members of the supervisory board, for the means for the operation of the junior colleges and provides for the issuance of bonds. In other words, it seemingly contemplated an authorization and implementation of a post-high-school educational system, separate from that which had heretofore existed in New Mexico.

The case was tried below upon the stipulation of the parties, which may be summarized as follows. The petition for the organization of the New Mexico Junior College was signed by qualified electors in a number exceeding ten per cent of the votes cast for governor in the 1964 general election; the area of the proposed junior college comprised four school districts of Lea County, viz., those of Tatum, Lovington, Hobbs and Eunice; the Board of Educational Finance conducted a survey and found that all requirements of Sec. 73-33-4.1 had been met; an election was held and a very substantial majority of those voting voted in favor of the establishment of the junior college; the executive secretary of the State Board of Educational Finance declared the district created, and, at a subsequent meeting of a majority of the members of each of the governing boards of the four school districts, five members of the New Mexico Junior College Board were elected, all in conformity with specific provisions of the Junior College Act; thereafter it was proposed to issue three million dollars in general obligation bonds, and the State Board of Educational Finance gave its approval. An election was held on the question of the issuance of the bonds and the vote in favor of the bonds was overwhelming. No contest was filed, and it was agreed that no one was denied the right to vote in either the election creating the district or in the election authorizing the issuance of the bonds. The district is now fully organized and has employed a president and other necessary officers, in anticipation of making its facilities available in September of 1966.

The plaintiffs claim that the Junior College Act is unconstitutional in several respects, and have briefed their contentions under sixteen separate points. For clarity, we will dispose of the arguments in the order presented.

Initially, it is urged that the Act is in violation of art. VII, Sec. 2, because it is a superaddition of requirements to constitutional qualifications for holding office. The statute requires that board members of a junior college district must be owners of real estate within the district. Art. VII, Sec. 2, insofar as pertinent, is as follows:

'A. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this Constitution. * * *'

Although we note that the present initial board is appointive rather than elective, and therefore the quoted provision of the constitution has no application at this time, nevertheless we feel that the proposition should be answered.

As we understand the argument, plaintiffs assert that junior college board members are public officers as contemplated by the constitution. Actually, the answer to this claim may be found in Davy v. McNeill, 1925, 31 N.M. 7, 240 P. 482, in which the court determined an irrigation district to be a 'public corporation for a municipal purpose' as opposed to a 'municipal corporation' or a municipality. We there construed the intent of the framers of the constitution respecting the meaning of the term 'public officers' and said that the officers of 'a public corporation for a municipal purpose' are not 'public officers' within the contemplation of art. VII, Sec. 2. As in Davey, we are here concerned with the definition of that term within the sense of the constitution. In our judgment, a junior college district is a quasi-municipal corporation comparable to the irrigation district with which Davy v. McNeill, supra, was concerned. We think the officers of junior college districts, like those of irrigation districts, are not those contemplated by the constitution. Accordingly, art. VII, Sec. 2 does not restrict the legislature in fixing the qualifications of such board members. See also In re Proposed Middle Rio Grande Conservancy Dist., 1925, 31 N.M. 188, 242 P. 683; Campbell v. Hunt, 1917, 18 Ariz. 442, 162 P. 882; McCarthy v. State, 1940, 55 Ariz. 328, 101 P.2d 449; and Glasco v. State Election Board, 1926, 121 Okl. 119, 248 P. 642.

Plaintiffs rely on Pollack v. Montoya, 1951, 55 N.M. 390, 234 P.2d 336, and Gibbany v. Ford, 1924, 29 N.M. 621, 225 P. 577. Pollack was solely concerned with whether the Chief of Division of Liquor Control was a state officer within the provisions of the venue act requiring that suits be brought against him at the capital. The Chief of Division of Liquor Control is clearly not an officer of a quasi-municipal corporation such as the officers of either the irrigation district with which Davy was concerned, nor of the quasimunicipal corporation with which we are concerned in the instant case. The question in Gibbany was whether a 'ward' in a municipality was a governmental subdivision for the purpose of the residence requirement for a municipal alderman within the contemplation of the constitution. It did not purport to define 'public officers.' We do not consider either of these cases controlling or persuasive.

It is next argued that the Act requires board members to reside in the junior college district, in violation of art. V, Sec. 13, on the theory that the board members are state officers, not district officers, and therefore their residence cannot be restricted. Since, as we have said, board members are not elective public officers in the sense as used in Sec. 2, art. VII, of the constitution, the legislature may justifiably set their qualifications. Our holding under point one precludes plaintiffs' reliance on State ex rel. Ward v. Romero, 1912, 17 N.M. 88, 125 P. 617. We therefore hold that the residence requirement for board members does not violate either Secs. 1 or 2 of [75 N.M. 667] art. VII of the constitution. It is of interest to note that the Junior College Act as originally enacted provided that the board members should be elected from separate districts. However, this was changed with the passage of ch. 277, Sess. Laws of 1965, which is compiled as Sec. 73-33-7, subd. B, and, as the law presently stands, there would not appear to be any provision directing residence in any particular school district within the junior college district.

Plaintiffs next maintain that the statute providing that persons must be owners of real estate in the district in order to be eligible to sign a petition calling for the organization of the district, to vote on the establishment of the district, and to vote on the issuance of bonds, is contrary to the provisions of art. VII, Sec. 1. The specific provisions of the statute referred to are Secs. 73-33-2, subd. F, 73-33-4, subd. B and 73-33-5, subd. A, N.M.S.A.1953 (Supp.1965). The constitutional provision, insofar as applicable, reads:

'Every male citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, * * * shall be qualified to vote at all elections for public officers.'

It should be apparent that our determination that the members of the board of directors are not elective public officers would seemingly dispose of this argument because the above-quoted constitutional section deals with elections for public officers and has no application to the signing of petitions or either of the elections in question. Therefore, the cases relied upon by the plaintiffs, Richter v. Martin (1960), Tex.Civ.App., 337 S.W.2d 134; Veatch v. City of Cottage Grove, 1930, 133 Or. 144, 289 P. 494; and Loe v. Britting, 1930, 132 Or. 572, 287 P. 74, are not authority for the position here taken by the plaintiffs. However, compare People ex rel. Shaklee v. Milan, 1931, 89 Colo. 556, 5 P.2d 249, which is very close in point.

We would also observe that Davy v. McNeill, supra, is authority sustaining a provision requiring the ownership of property as an incident to signing the petition for the organization of an irrigation district. There is specific authority for determining this point against the plaintiffs.

It is next urged that the general tenor of the entire Act is to require ownership of real estate in order to...