Johnston v. Board of Ed. of Portales Municipal School Dist. No. 1, Roosevelt County

• Decision Date: 24 December 1958
• Docket Number: No. 6430,6430
• Citation: 1958 NMSC 141,65 N.M. 147,333 P.2d 1051
• Parties: George E. JOHNSTON, Appellant, v. BOARD OF EDUCATION OF PORTALES MUNICIPAL SCHOOL DISTRICT NO. 1, ROOSEVELT COUNTY, New Mexico, and D. B. Stone, C. B. Vardeman, J. R. Hargis, L. V. Ellison and Cress Ingle, as the Members Constituting Said Board, Appellees.
• Court: New Mexico Supreme Court

Page 1051

333 P.2d 1051

65 N.M. 147

George E. JOHNSTON, Appellant, v. BOARD OF EDUCATION OF PORTALES MUNICIPAL SCHOOL DISTRICT NO 1, ROOSEVELT COUNTY, New Mexico, and D. B. Stone, C. B Vardeman, J. R. Hargis, L. V. Ellison and Cress Ingle, as the Members Constituting Said Board, Appellees.

No. 6430.

Supreme Court of New Mexico.

Dec. 24, 1958.

Rehearing Denied Jan. 9, 1959.

Smith & Smith, Fred C. Tharp, Clovis, for appellant.

Mears & Mears, Portales, for appellees.

Fred M. Standley, Atty. Gen., Alfred P. Whittaker and Fred M. Calkins, Jr., Asst. Attys. Gen., amici curiae.

SADLER, Justice.

The plaintiff, who is appellant in this Court, seeks on a review by appeal, to reverse the judgment of the district court of Roosevelt County, dismissing his complaint wherein he sought to enjoin the Board of Education and the individual members constituting the personnel of said board from issuing school bonds in the sum of $350,000 pursuant to a special school bond election held in Portales Municipal School District No. 1, Roosevelt County, on February 17, 1957.

Counsel for the plaintiff (and the parties will be designated here as they were below) presents his case under two points, first contending that the ballot used in the special election presented a dual proposition contrary to the authority of art. IX, Section 11, of the State Constitution; and, second, that the court erred in ruling as a matter of law that voters at a special school bond election are not required to be registered, the plaintiff offering to make proof that 105 persons voting in said election were not registered.

In the special school bond election called to pass upon this bond issue the question to be voted upon was submitted to the electorate in the following form, to wit:

'Official Ballot

Bond Election for Portales Municipal School District No. 1, Roosevelt County, New Mexico

February 19, 1957

For the Issuance of Bonds

of Portales Municipal School District No. 1, Roosevelt County, New Mexico, in the total sum of $350,000.00, for the purpose of erecting school buildings and of purchasing school sites in said district ()

Against the Issuance of Bonds

of the Portales Municipal School District No. 1, Roosevelt County, New Mexico, in the total sum of $350,000.00, for the purpose of erecting school buildings and of purchasing school sites in said district ()'

The proposition submitted to the electorate carried by a majority of 45, that is 783 persons voted for the proposition and 738 against it. The plaintiff says that for purposes of this appeal it must be considered as true that the 105 persons named by plaintiff as having voted in said election and as not being registered voters were not in fact registered voters. Also, it may be taken as shown that the Board intended to use the money, or a portion of such proceeds, not only for buildings presently to be constructed but, as well, to construct some buildings in the future and for the Board permissibly to purchase two or more school sites.

Article IX, Sec. 11, of the Constitution provides:

'No school district shall borrow money, except for the purpose of erecting and furnishing school buildings or purchasing school grounds * * *.'

Counsel for the plaintiff seem to think the use of the word 'or' in this constitutional proviso, as distinguished from the conjunctive 'and,' is a circumstance of special significance. We see nothing peculiarly noteworthy in the framers of the provision making this use of the word 'or.' Had they not done so, and had chosen its counterpart 'and,' are we to suppose the Board would then, each time it became necessary to seek funds for a new school building to have to put the proposition thus, 'to purchase sites and erect school buildings,' even though no site was necessary? Conceivably, if the Board did so submit the question, then the proceedings could be challenged because its form involved a deception and was actually false. In 43 Am.Jur. 346, Sec. 92, the author states:

'A proposition to purchase a site and erect a public building thereon submitted to the voters, contains only a single proposition.'

In Board of Education of Pittsburg, School Dist. No. 49, v. Davis, 120 Kan. 768, 245 P. 112, 113, the court was dealing with the claimed duality of a bond proposal. The court said:

'If the argument of the defendant were correct, every proposition submitted for adoption would have to be separated into its last details. This is not the intention of the law. It intends that a single question as a whole shall be submitted as a whole. Here was a question of providing proper school facilities--one proposition, and it was properly submitted as such.'

A good statement of the rule is found in Buhl v. Joint Independent Consolidated School District No. 11, 249 Minn. 480, 82 N.W.2d 836, 838. The court made this pronouncement, to wit:

'The general rule gleaned from the authorities is that in order to constitute a single proposition or question there must exist a natural relationship between the objects covered by the ballot so that they form but one rounded whole or single plan.'

See, also, Inslee v. City of Bridgeport, 153 Neb. 559, 45 N.W.2d 590, and annotations of the subject in 5 A.L.R. 538 and 4 A.L.R.2d 617 (621). Cases from our own jurisdiction dealing with the same subject are City of Albuquerque v. Water Supply Company, 24 N.M. 368, 174 P. 217, 5 A.L.R. 519, and White v. Board of Education, 42 N.M. 94, 75 P.2d 712. The cases of Dickinson v. Board of County Commissioners, 34 N.M. 337, 281 P. 33, and Carper v. Board of County Commissioners, 57 N.M. 137, 255 P.2d 673, are easily distinguishable on their facts.

Although Carper v. Board of Education, supra, is distinguished on its facts along with the Dickinson case, it is significant that we had the following to say in the Carper case touching a distinction between Const., art. 9, Sec. 11, involved in the case of White v. Board of Education, supra, and in the present case, and Const., art. 9, Sec. 10, involved in Carper v. Board of Education, supra [55 N.M. 137, 255 P.2d 677]. We said:

'Aside from the foregoing distinction there appears to us a still further differentiating feature. The provisions of the New Nexico constitution involved in the two cases are not the same. N.M.Constitution, Article 9, Section 11, which was involved in the White case, insofar as it is pertinent here reads as follows:

"No school district shall borrow money, except for the purpose of erecting and furnishing school buildings or purchasing school grounds, and in such cases only when the proposition to create the debt shall have been submitted to a vote of such qualified electors of the district as are owners of real estate within such school district, and a majority of those voting on the question shall have voted in favor of creating such debt. * * *' (Emphasis ours.)

'The provisions of Section 11, involved in the White case, are broader in their scope than the corresponding provisions of Section 10 involed in this case. Section 11 expressly authorizes the use of borrowed moneys for furnishing school buildings or for purchasing school grounds. There is no comparable provision in Section 10 which expressly authorizes counties to use the borrowed moneys only for 'erecting' the public buildings. Section 10 in addition contains an express limitation which is absent from Section 11 in that it specifies that the money may be borrowed for 'necessary' public buildings. Since the word 'necessary' is missing from Section 11, it would appear that perhaps moneys for school buildings could be voted when it appeared 'convenient' or otherwise 'desirable' but not technically necessary. In other words, the difference of language in the two sections of the constitution placed in juxtaposition is suggestive of an intention on the part of the constitution makers to limit the borrowing power of counties to a greater degree than that of the school districts.'

As pointed out in the Carper case, in White v. Board of Education of Silver City, we were spared the necessity of deciding whether the duality there claimed existed, though actually we did not condemn as dual the proposed submission. Furthermore, the Attorney General as amicus curiae points out in his brief that if such duality, in fact, existed it would fall under the ban of 1953 Comp., Sec. 73-8-31, barring any action touching the validity of the petition or the resolution touching same. This we need not determine, seeing no duality.

We come next to a consideration of the plaintiff's second point. In raising this question, the plaintiff lays error at the feet of the trial court in ruling as matter of law that in a school bond election voters are not required to be registered in order to entitle them to vote, as a result of which ruling the court refused to hear proof that 105 persons voting at the election were not registered. The canvass of the vote cast at the election disclosed that 783 persons voted for the proposed bond issue and 738 voted against it, producing a majority of 45 in favor of the proposal to issue bonds.

In presenting this claim of error counsel quote copiously from chapter 3 on Elections to support the position they take. They take us first to the definition of the word 'election' found in the Election Code as 1953 Comp., Sec. 3-2-5, reading:

'The word 'election' shall be construed to mean and apply to all primary elections, general elections, special elections and municipal elections.'

Next, they quote from Sec. 3-2-47 of the same chapter, reading:

'No person shall vote at any election unless registered as herein provided * * *.'

and from Sec. 3-2-49, the following:

'No person shall vote at any general, special, primary, or municipal election unless registered as provided by the laws of the state of New Mexico and unless otherwise qualified as herein provided; and no ballot of any unregistered or otherwise unqualified elector or person, shall be cast, counted or...