State ex rel. Barela v. New Mexico State Bd. of Ed.

• Decision Date: 31 March 1969
• Docket Number: No. 8764,8764
• Citation: 453 P.2d 583,80 N.M. 220,1969 NMSC 38
• Parties: STATE of New Mexico ex rel. Jose I. BARELA et al., Plaintiffs- Appellants, v. NEW MEXICO STATE BOARD OF EDUCATION et al., Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 583

453 P.2d 583

80 N.M. 220

STATE of New Mexico ex rel. Jose I. BARELA et al Plaintiffs- Appellants, v. NEW MEXICO STATE BOARD OF EDUCATION et al., Defendants-Appellees.

No. 8764.

Supreme Court of New Mexico.

March 31, 1969.

Rehearing Denied April 28, 1969.

Ruben Rodriguez, Arthur H. Coleman, Santa Fe, for appellants.

E. P. Ripley, Santa Fe, Chavez & Cowper, Belen, for appellees.

James A. Maloney, Atty. Gen., Gary O. O'Dowd, Deputy Atty. Gen., Santa Fe, on rehearing for appellees.

OPINION

MOISE, Justice.

Appellants state the issue presented in the appeal to be whether the purported consolidation between Belen Municipal School District No. 2, hereinafter referred to as 'Belen District' and the La Joya Rural Independent School District No. 5, hereinafter referred to as 'La Joya District' is valid.

Three attacks are made on the consolidation, viz., (1) a consolidation between districts entirely situated in different counties is not authorized by law; (2) the requirements of § 73--7--83, N.M.S.A. 1953 (repealed, ch. 16, § 301, N.M.S.L. 1967), were not met; and (3) since the consolidated district is governed by the Belen District which is in the Second Judicial District, whereas the La Joya District is in the Seventh Judicial District, residents of the La Joya District cannot participate in the election of the member of the State Board of Education in whose district Belen is located, and the attempted consolidation is therefore unconstitutional. See Art. XII, § 6, N.M. Const.

The petitioners, owners of property in the La Joya District in Socorro County, on December 21, 1966, filed this action wherein the members of the State Board of Education, the Belen Municipal School District No. 2 Board of Education, the La Joya Rural Independent School District Board No. 5 Board of Education, and the State Superintendent of Public Instruction, were named as respondents, seeking an order mandamusing them to dissolve the consolidation and provide for education of the La Joya children in the La Joya schools. The consolidation had been instituted by resolution of the La Joya Board on May 15, 1965, followed by a resolution of the Belen Board on June 14, 1965. Thereafter, the State Board of Education, on July 30, 1965, ordered consolidation effective July 1, 1966. From a judgment denying the relief sought and dismissing the action, this appeal has been perfected.

Under their first point, appellants argue that § 73--20--3, N.M.S.A.1953 (repealed, ch. 16, § 301, N.M.S.L.1967), did not provide for inter-county consolidation, and accordingly the attempted action is a nullity. The section read:

'Whenever any county board of education shall determine by resolution that substantial economies can be effected and standards of education improved by the consolidation of any two or more rural school districts within the county and shall furnish a copy of such resolution to the state board of education the state board of education may order the consolidation of such districts; and pursuant to such resolution, when the state board of education shall determine and make definite findings at the conclusion of any survey made under the provisions of this act (73--20--1 to 73--20--4) that substantial economies can be effected and the educational standards raised by the consolidation of any two or more school districts, said board may order the consolidation of such districts.

'The state board of education may order the consolidation of all classes of school districts pursuant to this Act, including rural, rural independent, municipal, union high school, and prior consolidated districts, or any combination thereof upon the resolution of each of the governing boards, affected by such consolidation.'

It is noted that the first paragraph of the section was adopted in 1941 (ch. 123, § 3, N.M.S.L.1941), and the last paragraph was added in 1955 (ch. 74, § 1, N.M.S.L.1955). Appellees concede that they proceeded under this section and, further, that prior to the 1955 amendment such a consolidation as this was not authorized by law because of the language limiting the section's operation to 'two or more rural school districts within the county.' They argue, however, that when in 1955 the second paragraph was added, stating that not only 'rural' school districts but 'rural independent, municipal, union high school, and prior consolidated districts, or any combination thereof' could be consolidated under the act, a change was effected which not only permitted consolidation of the various types of districts, but effectively eliminated the words 'within the county' as well.

Appellees point to our holdings to the effect that where a statute is plain, meaningful and unambiguous, there is no room for construction, Montoya v. McManus, 68 N.M. 381, 362 P.2d 771 (1961); Schoonover v. Caudill, 65 N.M. 355, 337 P.2d 402; Giomi v. Chase, 47 N.M. 22, 132 P.2d 715 (1942), and contend the instant statute is not ambiguous and comes within this rule. The correctness of this position is not entirely apparent. Not only did the legislature fail to specifically state that the second paragraph was to cover the enumerated types of districts if located in two or more counties, it reenacted the first paragraph with the limiting words 'within the county.' It takes a certain amount of interpretation to conclude that when within a single section of a statute reference is made in one paragraph to 'rural school districts' and in another to numerous other kinds of districts, the provisions of the second paragraph should control and the act be held applicable as provided therein. However, when the first paragraph limits the application to 'rural school districts within the county' and the second paragraph contains nothing to indicate an intention to change this provision beyond making the act applicable to 'all classes of school districts,' with no suggestion whatever that it apply to these various classes even though not 'within the county,' our problem becomes more difficult. In addition, we take note that § 73--20--3, supra, by its terms, applies 'whenever any county board of education' makes a determination. Action by the boards of education in two counties, such as would be necessary to set in motion a consolidation that involved districts in two counties is not mentioned, much less action by a municipal school board in one county and a rural independent school district board in another, as was attempted here.

It is with no small amount of regret that we find ourselves forced to a conclusion that the added paragraph of § 73--20--3, supra, does not alter the original paragraph so as to accomplish the interpretation sought. We are not permitted to read into a statute language which is not there, particularly if it makes sense as written. Compare Sunset Package Store, Inc. v. City of Carlsbad, 79 N.M. 260, 442 P.2d 572 (1968); Davey v. Davey, 77 N.M. 303, 422 P.2d 38 (1967).

As stated above, there may be some ambiguity concerning the types of districts covered by the section but, insofar as the question of location in one county as opposed to several counties, the statute seems clear. If the legislature had intended that it cover districts in more than one county, appropriate language was at hand to express such intent. As a matter of fact in § 73--20--5, N.M.S.A. (since repealed by ch. 16, § 301,...