Harrington v. Atteberry

• Decision Date: 15 July 1915
• Docket Number: No. 1740.,1740.
• Citation: 21 N.M. 50,153 P. 1041
• Parties: HARRINGTON ET AL.v.ATTEBERRY ET AL.
• Court: New Mexico Supreme Court

21 N.M. 50

153 P. 1041

HARRINGTON ET AL.

v.ATTEBERRY ET AL.

No. 1740.

Supreme Court of New Mexico.

July 15, 1915.Rehearing Denied Jan. 12, 1916.

Syllabus by the Court.

Chapter 51, Laws 1913, authorizing the board of county commissioners of the several counties of the state to appropriate annually, out of the funds of such county, the sum of $500 to a regularly organized fair association holding a county fair at the county seat, which money shall be used for the payment of premiums on agricultural, horticultural, arts, and live stock exhibits, being an appropriation for educational purposes, is in contravention of section 31 of article 4 of the state Constitution, which provides that “no appropriation shall be made for charitable, educational or other benevolent purposes to any person, corporation, association, institution or community, not under the absolute control of the state.”

Appeal from District Court, San Juan County; Abbott, Judge.

Action by W. H. Harrington and others against J. P. Atteberry and others, as members of and constituting the Board of County Commissioners in and for the County of San Juan. From a judgment for plaintiffs, defendants appeal. Affirmed.

Laws 1913, c. 51, authorizing annual appropriations for county fairs, held violative of Const. art. 4, § 31, prohibiting appropriations for educational purposes to associations not under absolute control of the state.

E. P. Davies, of Santa Fé, W. A. Palmer, of Aztec, and Alexander Read, of Santa Fé, for appellants.

Walter M. Danburg, of Farmington, and A. M. Edwards, of Santa Fé, for appellees.

ROBERTS, C. J.

This action was instituted in the court below by the appellees to enjoin the board of county commissioners of San Juan county from making an appropriation of certain of the funds of said county to the San Juan County Fair Association, a corporation organized under the general corporation laws of the state for the purpose of conducting a county fair at Aztec, the county seat of said county. The complainants also sought to restrain said respondents from taking any action looking to the remission of taxes levied against the property of said fair association. A temporary restraining order was issued by the court, which latter was made permanent, upon demurrer to the complaint being submitted and overruled, upon which respondents elected to stand.

The proposed appropriation of money, and remission of taxes, which it was sought to enjoin, was authorized by chapter 51, Laws 1913, which, in so far as material, reads as follows:

“Section 1. The board of county commissioners of each county shall appropriate annually a sum of not less than five hundred ($500) dollars from the general fund of their respective counties, to a regularly organized and incorporated county fair, the said appropriation to be applied towards paying premiums in the agricultural, horticultural, arts and livestock exhibit premiums.”

“Sec. 3. That the said appropriation shall be paid over annually to the secretary of the said association on or before the 15th day of July in each year, said secretary shall immediately turn the amount received from the county commissioners over to the treasurer of the said association, who shall give good and sufficient bonds to cover all moneys intrusted to his care, belonging to said association.”

“Sec. 5. That all property of said association which is used for the purposes above described shall be exempt from taxation so long as it is used for the purposes set forth herein.”

The controlling constitutional provision invoked, and which is decisive of the right of the board to make the appropriation of the money of the county to the fair association, for the specified purpose, is section 14 of article 9, which reads as follows:

“Neither the state, nor any county, school district, or municipality, except as otherwise provided in this Constitution shall directly or indirectly lend or pledge its credit, or make any donation to or in aid of any person, association or public or private corporation, or in aid of any private enterprise for the construction of any railroad: provided, nothing herein shall be construed to prohibit the state or any county or municipality from making provision for the care and maintenance of sick and indigent persons.”

It is conceded that the fair association in question was a corporation, organized under the general corporation laws of the state, having a capital stock, divided into shares owned by private individuals; that it was organized for the purpose of holding a county fair at Aztec, said county, and to offer and award premiums for superiority and excellency in horticultural and agricultural exhibits, and for other purposes. Whatever profits it might make could, of course, be distributed to its several stockholders as dividends, or expended for corporate purposes. Over its property, profits, and income, neither the state nor the county had any votes or control. One of its corporate purposes, as stated, was to offer premiums for agricultural and horticultural exhibits. In order to pay such awards, in the absence of assistance from the county, the association would necessarily be required to expend its own funds. By the act in question the board of county commissioners is authorized to pay to such association annually the sum of not less than $500 to be used for the purpose of discharging an obligation assumed by and resting upon the corporation, viz., the payment of premiums which it offers for agricultural and horticultural exhibits.

It is argued by appellants that the county commissioners have a right to expend public funds for the general welfare of the county; that the prosperity of the state depends, to a large degree, upon the success of its horticultural and agricultural industries; that the encouragement of these pursuits, and the education of those engaged and desiring to engage in such vocations, is a public duty, for which public funds may be lawfully expended, if legislative authority therefor exists, without violating any constitutional provision. All this may be admitted to be true, and still it does not alter or affect the present question. Here the Legislature has not authorized the boards of county commissioners to expend public funds for such purpose, but has directed the paying over of such funds to a corporation, not under the control of the county or state, to be used by such corporation in discharging an obligation assumed by it, thereby relieving it of the expenditure of its own funds, to the extent of the aid advanced by the county. It is true the holding of a county fair, at which the agricultural, horticultural, and other resources and products of the county are exhibited and premiums awarded for the superior product, is educational in its nature and serves a public purpose; but, if this were the criterion by which the validity of an appropriation of public funds is to be measured, there would be hardly any limit upon the right of the state, county, city, or school districts to appropriate money to a private corporation. Within the state we have many private corporations engaged in educational work and a still greater number serve some other useful public purpose. Private individuals are likewise engaged in pursuits of a similar nature. If all these individuals and corporations could be given public money to aid them in carrying on the work in which they are engaged, there would practically be no limit upon the various agencies of government in the expenditure of donation of public funds, and the constitutional provision in question would be a vain, useless, absurd, and meaningless aggregation of words and sentences.

The language of the constitutional provision is so clear and explicit that it does not require construction; all that need be done is to read it and apply the language in its ordinary sense. It prohibits the state, county, and other agencies of the state named, from making any donation to or in aid of any person, association, or public or private corporation, except as otherwise provided in the Constitution. Therefore an act of the Legislature appropriating money, or directing a county to appropriate money to a private corporation engaged in conducting a county fair, for the purpose of paying premiums on agricultural and horticultural and other exhibits, which is a duty assumed by such corporation, is in conflict with section 14 of article 9 of the state Constitution, prohibiting donations to persons, associations, and public and private corporations.

Very little authority, directly in point, is available. The appellees cite the following cases, which they claim evidence the invalidity of the statute: Garland v. Board of Revenue, 87 Ala. 223, 6 South. 402; Colo. Cent. R. Co. v. Lea et al., 5 Colo. 192; Taylor v. Ross County Comr's, 23 Ohio St. 22; Wilkesbarre City Hospital v. County of Luzerne, 84 Pa. 55; Ellis v. N. R. R. Co., 77 Wis. 114, 45 N. W. 811; Johns v. Wadsworth, 80 Wash. 352, 141 Pac. 892.

In Colorado Central R. Co. v. Lea et al., supra, the board of county commissioners of Boulder county subscribed for certain stock of the railroad company and called an election for the approval of the subscription. The voters approved the subscription and the stock was delivered to the county. Subsequently the county delivered to the railroad bonds of the county of the face value of its stock subscription, and the stock received by the county was subsequently placed in the hand of an individual, by the county, as trustee, and agreed to donate to the railroad company the stock upon the completion of a certain railroad. The stock was placed in escrow for that purpose. The action was to restrain the trustee from delivering the stock and the railroad company from receiving it. Section 2 of article 11 of the Constitution of Colorado then provided:

“Neither the state, nor any county, city, town, township or school district shall make any donation or grant...