Kiddy v. Board of County Com'rs of Eddy County

Decision Date06 April 1953
Docket NumberNo. 5550,5550
Citation1953 NMSC 23,57 N.M. 145,255 P.2d 678
CourtNew Mexico Supreme Court

Archer & Dillard and Milford D. Estill, Artesia, for appellants.

N. Randolph Reese, Hobbs, for appellees.

COORS, Justice.

This is a companion case to Carper v. Board of County Commissioners of Eddy County, 57 N.M. 137, 255 P.2d 379. The plaintiffs, appellants in this class suit, are qualified electors, property owners and taxpayers of Eddy County and were among the signers of a petition calling for an election which was filed with the County Clerk of Eddy County as ex-officio clerk of the Board of County Commissioners on February 20, 1953. In material particulars this petition reads as follows:


'We, the undersigned qualified electors of Eddy County, New Mexico, hereby petition the Board of County Commissioners of Eddy County, New Mexico, asking that a vote be taken on the question or proposition of issuance ob bonds of the County of Eddy, State of New Mexico, in the total sum of $1,600,000.00, for the objects of constructing or purchasing a hospital with isolation ward, equipping such hospital, and acquiring the land therefor at Carlsbad, New Mexico, for which $1,000,000.00 of said bonds are to be voted for, and for the construction or purchasing a hospital with isolation ward, equipping such hospital, and acquiring the land therefor at Artesia, New Mexico, for which $600,000.00 of said bonds are to be voted.'

The Board of County Commissioners disapproved the petition and determined not to call the election requested upon advice given them by the district attorney. There appears to be no question that the petition was signed by a requisite number of qualified electors. Plaintiffs filed their verified application for an Alternative Writ of Mandamus on March 19, 1952, in the Distict Court of Eddy County. The court issued its Writ commanding the defendants that after receipt of the Writ and on some date not later than April 2, 1952, they should either grant the petition and make the proper order thereon, resolving that a special election be called and proclamation issued, or in the alternative, that they show cause before the court for not doing so. Defendants answered, denying that it was their duty to grant the petition and to call the special election requested, denying that the petition had for its object purposes authorized by the laws of the State of New Mexico, and stating the petition called for a joint submission of two propositions as one question. Defendants objected further upon the ground that since one of the objects was the purchase of a hospital or hospitals at the two designated points in the county, it was in violation of Article 9, Section 10, of the Constitution of New Mexico.

After hearing was had upon this cause and the companion case of Carper v. Board of County Commissioners of the County of Eddy, the application for Peremptory Writ of Mandamus in the instant case was denied. Exceptions were duly taken and this appeal follows.

On the point urged for determination as to whether the petition presented to the Board of County Commissioners improperly combined two separate propositions for hospital construction as one question, our holding in Carper v. Board of County Commissioners of the County of Eddy to the effect that dual propositions were presented, is controlling herein. Two propositions being submitted as one question, the petition was invalid.

The further question raised in the instant case respecting constitutionality of Laws 1947, Chapter 148, Sections 1-9, being New Mexico Statutes Annotated, 1941 Comp., Pocket Supp. Secs. 15-5001 to 15-5009, upon the ground that the act purports to authorize bond elections not merely for erection or construction but also for the purchase of already existing hospital facilities, contrary to New Mexico Constitution, Article 9, Section 10, which refers only to erection or construction of necessary public buildings, need not be decided in view of the adverse decision upon the duality question hereinbefore mentioned. Suffice it to say, that presence of the additional provision in this petition for either 'the construction or purchasing of hospital with isolation ward' at each of the two locations within the county, i.e., at Carlsbad and Artesia, may accentuate and certainly does not diminish the multiple character of the petition.

A further point raised in this case, however, needs our consideration. This is the argument advanced with singular vigor by the appellants that the Board of County Commissioners cannot question constitutionality of the statute which prescribes their duty to call a special election for the purpose of voting upon the hospital bond issue, as a defense to a mandamus proceeding instituted to compel performance, in absence at least of a showing that they are either injured or jeopardized by operation of the statute.

Mandamus traditionally lies to direct performance of nondiscretionary tasks and by statute the remedy may be extended to discretionary tasks, but ordinarily only to the doing of them and not to the manner in which the discretionary task shall be performed. Wailes v. Smith, 1893, 76 Md. 469, 25 A. 922; Clark v. Ardery, 1949, 310 Ky. 836, 222 S.W.2d 602. As brought out by the court in Wailes v. Smith, a nondiscretionary or ministerial duty exists when the officer is entrusted with the performance of an absolute and imperative duty, the discharge of which requires neither the exercise of official discretion nor judgment. The Supreme Court of Iowa attempted to distinguish between ministerial and non-ministerial acts in the case of First National Bank v. Hayes, 1919, 186 Iowa 892, 171 N.W. 715, 718, in the following manner:

'* * * A ministerial act has been defined as 'one which a person or board performs upon a given state of facts, in a prescribed manner, in observance of the mandate of legal authority and without regard to or the exercise of his own judgment upon the propriety of the act being done.' * * * The 'distinction between merely ministerial and judicial or other official acts seems to be that, where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial, but where the act to be done involves exercise of discretion or judgment, it is not to be deemed merely ministerial. Discretion may be defined, when applied to public functionaries, as the power or right conferred upon them by law of acting officially under certain circumstances, according to the distates of their own judgment and conscience, and not controlled by the judgment or conscience of others."

The definition as stated is sound, but it is difficult to classify each and every individual case as one which involves either no discretion or judgment, or as one that does. As was well brought out in a note in 27 Iowa Law Review 291, commenting upon the above case, at page 295:

'But no general definition will serve to establish a magic line sharply dividing ministerial from non-ministerial acts. The difference between these two categories is one of degree and not of 'kind' * * * It is difficult to conceive of a situation in which the official intrusted with power to act finds his duties so clearly prescribed that he becomes no more than an automation in exercising them. Interpretation and judgment seem to inhere to a greater or less extent in every official function. In carrying out the duties which the statute has defined, the acting official must determine whether in any particular circumstances he has a duty to act. * * *' (Emphasis ours.)

If the Board of County Commissioners had been presented in the instant case with a petition which clearly and unequivocally met all the requirements of the statutes and Constitution of New Mexico, the duty to call an election would no doubt be mandatory and unqualified. Under those circumstances, mandamus would be a proper remedy to enforce the ministerial duty of...

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  • State Ex Rel. Gary K. King v. Lyons
    • United States
    • New Mexico Supreme Court
    • January 24, 2011
    ...“Public functionaries may be restrained by mandamus from doing what they know is an illegal act.” Kiddy v. Bd. of Cnty. Comm'rs of Eddy Cnty., 57 N.M. 145, 152, 255 P.2d 678, 683 (1953). If these exchanges were to continue as planned, the Land Commissioner would once again be in violation o......
  • Sender v. Montoya
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    ...granted in cases such as that before us. See, for example, Andersen v. Superior Court, supra. We do note Kiddy v. Board of County Com'rs of Eddy County, 1953, 57 N.M. 145, 255 P.2d 678, which it is claimed requires a quashing of the writ. That case involved the refusal of the county commiss......
  • State ex rel. Bird v. Apodaca
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    • December 28, 1977
    ...was a declaratory judgment and an injunction), this Court has also clearly stated otherwise. In Kiddy v. Board of County Com'rs of Eddy County, 57 N.M. 145, 152, 255 P.2d 678, 683 (1953) it was said, "Public functionaries may be restrained by mandamus from doing what they know is an illegal......
  • Grand Jury Sandoval County, Matter of
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    • January 28, 1988's own judgment and conscience. See Ross v. State Racing Comm'n, 64 N.M. 478, 330 P.2d 701 (1958); Kiddy v. Board of County Comm'rs of Eddy County, 57 N.M. 145, 255 P.2d 678 (1953). In determining whether mandamus will lie, the court must look to the purpose of the statutory scheme to di......
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