Hutcheson v. Gonzales

• Decision Date: 31 July 1937
• Docket Number: No. 4316.,4316.
• Citation: 41 N.M. 474,71 P.2d 140
• Parties: HUTCHESONv.GONZALES, Secretary of State.
• Court: New Mexico Supreme Court

41 N.M. 474

71 P.2d 140

HUTCHESON

v.GONZALES, Secretary of State.

No. 4316.

Supreme Court of New Mexico.

July 31, 1937.

Original mandamus proceeding by Lester F. Hutcheson against Elizabeth Gonzales, as Secretary of State of the state of New Mexico.

Alternative writ of mandamus made permanent.

The constitutional provisions reserving in people the right to “disapprove, suspend and annul any law enacted by the Legislature” with certain exception, are independent, consistent, and of equal dignity and obligatory force, and neither can be used to alter or overturn the other, since when it enacts ordinary legislation, Legislature acts in a different capacity than when, in combination with voters, it determines questions of constitutional amendment. Const. art. 4, § 1; art. 19, § 1.

J. O. Seth, of Santa Fe, and A. T. Hannett, John F. Simms, W. A. Keleher, Fred E. Wilson, and Joseph L. Dailey, all of Albuquerque, for plaintiff.

Frank H. Patton, Atty. Gen., Fred J. Federici and A. M. Fernandez, Asst. Attys. Gen., and H. A. Kiker and David W. Carmody, both of Santa Fe, and Stanley W. Miller, of Albuquerque, for defendant.

BICKLEY, Justice.

The applicant asked leave to file in this court application for an alternative writ of mandamus against defendant and for this court to take original jurisdiction of this cause. Such leave was granted. It appears from the application, and from fact sources of which we take judicial notice, that by chapter 117 of the Laws of 1937, the Legislature by unanimous vote of each house thereof, 22 Senators voting in the affirmative, nays none, 2 Senators being absent, and 34 members of the House voting in the affirmative, none in the negative, the others being absent, called a special election to be held throughout the state on September 21, 1937, for the purpose of approving or rejecting any and all amendments to the Constitution of the state of New Mexico proposed at the current session, and provided in said enactment that such special election shall be proclaimed, held, conducted, and counted in the same manner and be subject to the same regulations as are now prescribed by law for general elections, not inconsistent with said act; that said Legislature proposed 4 amendments to the Constitution of the state of New Mexico by 4 duly adopted joint resolutions known as Senate Joint Resolution No. 3, Senate Joint Resolution No. 14, House Joint Resolution No. 24, and House Joint Resolution No. 25. It is averred in the application that by article 19, section 1, of the Constitution it is made the public duty of the Secretary of State to cause each and all of said amendments to be published in the manner provided by law; that the defendant claims and asserts that by reason of the filing with her, in her office, as Secretary of State, of referendum petitions alleged to contain the names of more than 25 per cent. of the qualified electors in more than three-fourths of the counties of the state of New Mexico, directed against said chapter 117 of the Laws of 1937, that said act is suspended and automatically referred to the general election in November, 1938, for approval or disapproval; and that she will not publish notice of said special election of September 21, 1937, unless required so to do by a court of competent jurisdiction. Said application also contains the following:

“That chapter 117 of the Laws of 1937, is not subject to being suspended by referendum petitions or otherwise, and cannot be by said petitions, or otherwise, referred to the electors of this state at the next general election in November, 1938, for the following reasons, to-wit:

“A. Because article 19, section 1, of the Constitution of the State of New Mexico, affirmatively requires that the said four proposed Constitutional Amendments shall be submitted to the said special election called for September 21, 1937, by Chapter 117 of the Laws of 1937, and does not permit a referendum thereon; and

“B. Because chapter 117 of the Laws of 1937, is a special law, not subject to referendum, under the provisions of article 4, section 1, of the Constitution of the State of New Mexico; and

“C. Because the referendum cannot be lawfully or legally employed by twenty-five per cent. of the electors in three-fourths of the counties of the state to prevent all of the electors of the State from voting on said four proposed Constitutional Amendments at the special election called for September 21, 1937; and

“D. Because the referendum provided by article 4, of the Constitution of the State of New Mexico cannot lawfully be used for the purpose of referring to the general election of 1938, chapter 117 of the Laws of 1937, calling the special election for September 21, 1937, for the reason that so to employ said referendum would be, in effect, to repeal chapter 117 of the Laws of 1937, because to postpone a vote upon the matter of approving or rejecting chapter 117 of the Laws of 1937, until more than a year after the only date on which it could be effective, to-wit: September 21, 1937, would be, in effect, permitting twenty-five per cent. of the voters in three-fourths of the counties of the State of New Mexico to nullify chapter 117 of the Laws of 1937, even though the same might receive a majority of the votes of all of the electors in the general election of 1938.

“That applicant is a citizen and resident of the State of New Mexico and County of Bernalillo, and is a qualified elector of said state and county, and is entitled to vote at all elections, and that he, in common with all other electors of said state, is interested in the matter of having said special election lawfully called and held on September 21, 1937, and is entitled to vote therein, and that as such qualified elector, his rights are affected, in common with those of all other citizens and electors of the state, by the alleged failure and refusal of the defendant, as Secretary of State of New Mexico, to discharge a public duty, to-wit: the causing of said proposed amendments to be published as required by article 19 of the Constitution of the State of New Mexico, and that the State of New Mexico, as a state, is not concerned with the question of the calling and holding of said special election.

“That circumstances, which, in the opinion of the applicant render it necessary and proper that the Alternative Writ of Mandamus issue originally from this court and not from any other court in the State of New Mexico, are as follows:

“That owing to the short length of time that now remains before the time when the Secretary of State is required to commence publication of said proposed Constitutional Amendments as required by article 19, of section 1 of the Constitution of New Mexico, it would be impossible for the applicant to proceed in the District Court and have the cause reviewed by the Supreme Court of New Mexico before said publications should be commenced and started, in order to comply with the constitutional requirements pertaining thereto;

“And inasmuch as the Secretary of State has been advised by the office of the Attorney General of New Mexico that she is under no duty to publish said proposed amendments, but that the filing of the referendum petitions in her office has relieved the Secretary of State of the duty to so publish said proposed amendments, and pursuant to said advice the Secretary of State has asserted that she will not publish said proposed amendments, unless and until so required by a court of competent jurisdiction, it would be futile for your applicant to attempt, by mandamus to compel the Secretary of State to do what your applicant alleges to be her public duty, in other forum or court than the Supreme Court of the State of New Mexico.”

An alternative writ of mandamus was issued. All the pertinent facts are admitted either by the writ and answer of defendant or subsequently by her counsel at the hearing, coupled with a challenge of the legal conclusions drawn therefrom by the plaintiff. Defendant by her answer raises certain specific defenses in support of her refusal to proclaim and call the special election.

[1] It seems appropriate to consider first the claim of plaintiff that the enactment calling the special election is not legislation as contemplated by article 4 of the New Mexico Constitution, because if this point should be ruled in favor of defendant, her other defenses would be of no further interest to her.

Article 4 of the New Mexico Constitution is entitled: “Legislative Power-Where Vested-Senate and House-Referendum.” A portion of section 1 of said article 4 is as follows:

“The people reserve the power to disapprove, suspend and annul any law enacted by the legislature, except *** laws providing for the preservation of the public peace, health or safety.”

It was asserted on July 4, 1776, by the framers of the Declaration of Independence that all men “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” They further declared that when certain popular rights were infringed upon, it was “the Right of the People to alter or to abolish it, and to institute new Government.”

After vindicating these principles by discharging their pledge of their lives, fortunes, and honor, a government was instituted which went through changes until it was charted in the Constitution of the United States. The preamble of that Constitution, besides being one of the finest sentences ever written, is one of the most comprehensive:

“We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United...