Gamble v. Velarde

• Decision Date: 03 August 1932
• Docket Number: No. 3820.,3820.
• Citation: 36 N.M. 262,13 P.2d 559
• Parties: GAMBLEv.VELARDE, State Auditor.
• Court: New Mexico Supreme Court

36 N.M. 262

13 P.2d 559

GAMBLE

v.VELARDE, State Auditor.

No. 3820.

Supreme Court of New Mexico.

Aug. 3, 1932.

Syllabus by the Court.

Mandamus lies only to enforce clear legal rights.

Statute authorizing refund of excise taxes collected upon sales of gasoline in certain cases held to direct present payment of claims (Laws 1931, c. 31).

Constitutional limitation upon legislative power should receive reasonable construction to effectuate sound purpose without unnecessarily or arbitrarily hampering legislation (Const. art. 4, § 30).

Constitutional provision governing payment of money from state treasury and making of appropriations held designed to insure legislative control of public purse (Const. art. 4, § 30).

Statute authorizing refunds of excise taxes paid upon sales of gasoline in certain cases, and presscribing proof of claims, held to sufficiently specify object of appropriation (Laws 1931, c. 31; Const. art, 4, § 30).

Statute authorizing refunds of excise taxes paid upon sales of gasoline in certain cases, able special fund therefor, held to sufficiently specify sum appropriated (Laws 1931, c. 31; Const. art. 4, § 30).

Suit to compel public officer to perform clear statutory duty to individiual held not suit against state so as to require consent.

1. Only clear legal rights are enforceable by mandamus.

2. Laws 1931, c. 31, construed and held, as matter of legislative intent, to direct present payment of claims for refund of gasoline excise taxes.

3. Constitutional limitation upon legislative power and practice should receive a reasonable construction with a view to effectuating their sound purpose, without unnecessarily or arbitrarily hampering legislation.

4. N. M. Const. art. 4, § 30, governing the paying of money from the treasury and the making of appropriations, is designed to insure legislative control of the public purse.

5. Laws 1931, c. 31, providing for refunds of excise taxes paid upon gasoline not for use or used in operating vehicles on highways, and prescribing proof to be made by each claimant, distinctly specifies object of appropriation within meaning of N. M. Const. art. 4, § 30.

6. Laws 1931, c. 31, providing for refunds of excise taxes paid upon gasoline not for use or used in operating vehicles on highways, prescribing proof to be made by each claimant, and making available for refunds the special fund derived from such taxes, distinctly specifies sum appropriated within meaning of N. M. Const. art. 4, § 30.

7. Suit to compel a public officer to perform clear statutory duty to an individual is not a suit against the state.

8. Question as to circumstances warranting exercise of original jurisdiction of Sureme Court in mandamus against state officer not decided.

Original proceeding in mandamus by C. E. Gamble against Arsenio Velarde, State Auditor. On alternative writ, answer, and stipulation of facts.

Alternative writ of mandamus made permanent.

Statute authorizing refunds of excise taxes paid upon sales of gasoline in certain cases, prescribing proof of claims, and making available special fund therefor, held to sufficiently specify sum appropriated. Laws 1931, c. 31; Const. art. 4, § 30.

Sam G. Bratton, of Albuquerque, and Carl A. Hatch, of Clovis, for plaintiff.

Charles Fahy, of Santa Fé, and E. K. Neumann, Atty. Gen., for defendant.

WATSON, J.

This is an original action in mandamus to compel the state auditor to issue a warrant upon the special suspense fund in the state treasury, for payment of plaintiff's claim, approved by the state comptroller, for refund of the excise tax collected upon sales of gasoline used otherwise then in motor vehicles operated on the public highways. L. 1931, c. 31.

The cause is before us upon an alternative writ, an answer, and a stipulation of facts. Questions of law only are presented. The most important is whether defendant may issue the warrant without violating N. M. Const. art. 4, § 30: “Except interest or other payments on the public debt, money shall be paid out of the treasury only upon appropriations made by the legislature. No money shall be paid therefrom except upon warrant drawn by the proper officer. Every law making an appropriation shall distinctly specify the sum appropriated and the object to which it is to be applied.”

Prior to the passage of the Refund Act (L. 1931, c. 31), existing laws imposed excise taxes on gasoline. 1929 Comp. St. §§ 60-101, 60-203. Such taxes were collected by the state comptroller. Id. §§ 60-105, 60-209. They were to be paid into the state treasury and covered into the state road fund, to be used for “maintenance, construction and improvement of state highways and to meet the provisions of the federal aid road law.” Id. § 60-205. But prior to the claim of the road fund was that of the principal and interest of road debentures, for which the proceeds of these taxes had been pledged. Id. § 60-205; Streit v. Lujan, 35 N. M. 672, 6 P.(2d) 205.

The last Legislature adopted the policy of refunding these excises to the purchasers in cases where the gasoline was purchased for use and was used otherwise than in operating vehicles on the highways. To that end it required the seller to give a receipt which the purchaser might present to the comptroller with his application for the refund, and with prescribed evidence of his right. It was provided that upon presentation of the prescribed proof the comptroller should “cause to be refunded to said claimant consumer, from the gasoline or motor fuel taxes collected, ***” the amount to which the claimant appeared to be entitled under the act.

Section 4 reads as follows: “The State Comptroller, for the purpose of making the refunds provided in this act, is hereby authorized to create a special suspense fund with the Treasurer of the State of New Mexico, in sufficient amount to pay all legal claims made in conformity with the provisions of this act, from the funds derived from the excise tax on gasoline and motor fuel as and when available. At the expiration of six months after the taking effect of this Act, the State Comptroller shall estimate the amount of funds necessary to make the refunds authorized herein, and shall keep an amount available at all times to meet the requirements of the provisions of this act. Any surplus fund over and above the estimated amount in such special suspense fund shall forthwith be turned into the highway funds of the State of New Mexico, to be distributed as provided by law.”

In refusing to issue the warrant, and in answering the alternative writ, defendant has taken the position that this statute merely creates the obligation to refund if succeeding Legislatures shall make appropriation therefor; that it makes no appropriation. If such is the situation, it will result either from legislative intent or from constitutional limitation.

[1] Considering the legislative intent, we do not question the rule invoked by defendant that mandamus lies only for the enforcement of a plain statutory right. Carson Reclamation District v. Vigil, 31 N. M. 402, 246 P. 907.

[2] Yet we cannot doubt that the Legislature contemplated present refunds-not possible future refunds at the will of coming Legislatures. It directed the comptroller “to cause (the proper amounts) to be refunded.” It laid down the rule for determining the proper amounts, and prescribed the proofs which the comptroller should accept as sufficient. It specified the proceeds of the excises as the larger fund, from which the comptroller should create in the treasury a special suspense fund for the purpose. It directed that the suspense fund be maintained at an amount sufficient to meet the claims upon it.

As to the meaning of “appropriation” and as to the legislative intent to make an appropriation, judicial expressions more or less conflicting have been brought to our attention. We consider that the intent to make an appropriation is plain on the face of the statute. Precedents in this jurisdiction favor this view. State ex rel. Fornoff v. Sargent, 18 N. M. 272, 136 P. 602; Dorman v. Sargent, 20 N. M. 413, 150 P. 1021; State ex rel. Delgado v. Sargent, 18 N. M. 131, 134 P. 218.

So we reach the main question. Does the legislative attempt fair because of constitutional limitation upon its power to make an appropriation?

[3] Here the rule of constitution changes. “The Legislature is a co-ordinate branch of our state government. Its prerogative in the matter of legislation is to be questioned solely from the standpoint of our federal or state constitutional limitations. The function of the courts in scrutinizing acts of the Legislature is not to raise possible doubt nor to listen to captious criticism. The Legislature possessing the sole power of enacting law, it will not be presumed that the people have intended to limit its power or practice by unreasonable or arbitrary restrictions. Every presumption is ordinarily to be indulged in favor of the validity and regularity of legislative acts and procedure.” State v. Armstrong (Rehearing), 31 N. M. 254, 243 P. 333, 347. A reasonable construction of a constitutional limitation on legislative power or practice requires “the court to keep in mind the sound purpose of the provision and the existing or anticipated evil to be overcome or avoided. ***” State v. Armstrong (Rehearing), 31 N. M. 254, 243 P. 333, 348.

No great aid is to be had from precedents; there being such a variety of constitutional limitation regarding the appropriation and expenditure of public moneys. As a matter of distinguishing decisions, it will be well to remember that our Constitution is one of the newest. It will be judged not only by what it says, but by what it omits to say -what it might have adopted from other Constitutions and did not.

The stock formula is that of the Federal Constitution: “No money shall be drawn from the treasury, but in consequence of appropriations made by law.” Article 1, § 9.

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