State ex rel. Bird v. Apodaca

• Citation: 91 N.M. 279,1977 NMSC 110,573 P.2d 213
• Decision Date: 28 December 1977
• Docket Number: No. 11707,11707
• Parties: STATE of New Mexico ex rel. James A. BIRD, State Highway Engineer for the State of New Mexico, Petitioner, and State of New Mexico ex rel. State Highway Commission for the State of New Mexico, Intervenor, v. The Hon. Jerry APODACA, Governor of the State of New Mexico, Respondent.
• Court: Supreme Court of New Mexico

Page 213

573 P.2d 213

91 N.M. 279

STATE of New Mexico ex rel. James A. BIRD, State Highway Engineer for the State of New Mexico, Petitioner and State of New Mexico ex rel. State Highway Commission for the State of New Mexico, Intervenor, v. The Hon. Jerry APODACA, Governor of the State of New Mexico Respondent.

No. 11707.

Supreme Court of New Mexico.

Dec. 28, 1977.

Rehearing Denied Jan. 10, 1978.

[91 NM 281] Olmsted & Cohen, Charles D. Olmsted, Santa Fe, for petitioner and intervenor.

Toney Anaya, Atty. Gen., Thomas L. Dunigan, Deputy Atty. Gen., Santa Fe, for respondent.

OPINION

McMANUS, Chief Justice.

Petitioner, James Bird, was appointed State Highway Engineer by the State Highway Commission pursuant to § 55-2-1.6, N.M.S.A. (Supp.1975). Governor Apodaca, respondent herein, sought to transfer petitioner from the Highway Department to the State Parks and Recreation Commission under a statutory provision, § 5-4-3, N.M.S.A.1953, which allows such transfers "as in his judgment may be necessary or convenient at any time to further the economical and efficient conduct of the state government . . ." The temporary transfer would terminate on March 31, 1978. On that date the Highway Department Organization Act takes effect and requires the consent of the Governor for the appointment of "Chief Highway Administrator," the equivalent to the current State Highway Engineer. Section 55-2-15, N.M.S.A.1953 (Interim Supp. New Mexico Executive Reorganization Laws 1977).

Petitioner brought this mandamus proceeding seeking an order directing respondent to "cease, desist and refrain from removing or transferring" the petitioner or from interfering with the petitioner's performance of his duties as State Highway Engineer. Petitioner questions the Governor's power to effect the transfer and submits that the office of State Highway Engineer is not subject to § 5-4-3, supra. Respondent contends that mandamus is not the proper remedy since the issue to be resolved is based solely upon the judgment and discretion of the executive officer and mandamus will not lie to interfere with the exercise of discretion. Respondent also contends that the relief requested is actually a matter for a writ or prohibition or injunction and prohibition will not lie against a state officer. Therefore, the threshold question to be considered is whether mandamus is the proper remedy and this is the proper court in which to bring the action.

Mandamus and prohibition are extraordinary writs which fall within the purview of this Court's original jurisdiction by virtue of Art. VI, § 3 of the Constitution of New Mexico. Mandamus and quo warranto may be issued against all state officers, boards and commissions, and mandamus may also be used in conjunction with the Supreme Court's supervisory control over inferior courts. N.M.Const. art. VI, § 3. Prohibition, by its very nature, will not lie against state officers. Atchison, T. & S.F. Ry. Co. v. State Corporation Com'n, 43 N.M. 503, 95 P.2d 676 (1939). It is properly invoked only against an inferior court to prevent such a court from acting either without jurisdiction or in excess of its jurisdiction. General Atomic Co. v. Felter,90 N.M. 120, 560 P.2d 541, rev'd on other grounds, --- U.S. ----, 98 S.Ct. 76, 54 L.Ed.2d 199 (1977). Clearly petitioner's requested relief is neither styled prohibition nor sounds in prohibition.

However, respondent contends that since petitioner is requesting negative relief, i. e., "to cease, desist and refrain," that mandamus is inappropriate. Although such a position has been stated in dicta in a previous case, Harriett v. Lusk, 63 N.M. 383, 320 P.2d 738 (1958) (wherein the relief sought 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 act." See also, Sender v. Montoya, 73 N.M. 287, 387 P.2d 860 (1963). Mandamus is defined to include an order "directing the restoration of the complainant to rights or privileges of which he has been illegally deprived." Black's Law Dictionary 1113 (rev. 4th ed. 1968). We feel that the petition is properly styled mandamus and the requested relief is within the scope of the mandamus remedy.

As a corollary to this initial question, the respondent submits that this is not the proper tribunal for such a decision and that this petition should properly be brought before the district court for an initial factual determination. It is true that the district court also has original jurisdiction in mandamus, N.M.Const. art. VI, § 13, but we have construed these constitutional provisions as granting concurrent jurisdiction to the Supreme Court and the district courts. Owen v. Van Stone, 17 N.M. 41, 121 P. 611 (1912). This Court will generally defer to the district court so that we may have the benefit of a complete record and so the issues may be more clearly defined. But when issues of sufficient public importance are presented which involve a legal and not a factual determination, we will not hesitate to accept the responsibility of rendering a just and speedy disposition. See, e. g., State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975 (1974).

An additional matter to be considered before reaching the legal merits is whether there is a plain, speedy and adequate remedy at law. The respondent takes the position that mandamus is not a proper remedy, but he also does not enlighten us as to any alternative. A declaratory action or a request for injunctive relief may have been considered but we also perceive the inadequacy of these remedies. The transfer sought to be effected by the respondent is temporary as § 5-4-3, supra, clearly provides. The delays inherent in proceeding in district court and a subsequent appellate review would render the question moot before a final resolution could ever be had by an aggrieved party. The nature of the injury is also such that it cannot be remedied by an award of damages. The petitioner is not being deprived of his salary or tenure for which compensation would be appropriate. Petitioner is being deprived of the duties, responsibilities and authority he was given by law when he was properly appointed to his position as State Highway Engineer. Therefore, it is apparent that no plain, speedy or adequate remedy, other than mandamus, exists whereby petitioner's rights may be protected. Mandamus will lie where ordinary proceedings would be inadequate. E. g., State ex rel. Sego v. Kirkpatrick, supra; Montoya v. Blackhurst, 84 N.M. 91, 500 P.2d 176 (1972).

The respondent next asserts that judicial intervention is inappropriate because the alleged improper act was within the scope of executive judgment and discretion to determine the most effective use of executive employees. If this was the only basis for petitioner's complaint we would agree. Executive discretion cannot be controlled by mandamus. Mitchell v. King, 537 F.2d 385 (10th Cir. 1976). We view the matter differently, however. The issue presented here deals with the conflict between a general power constitutionally conferred on the highest executive officer to carry out his duties to see that the laws are faithfully executed by his subordinates, N.M.Const. art. V, § 4, and that state officers are competent and conscientious in performing their duties, N.M.Const. art. V, § 5; and the constitutionally conferred duty and power of the State Highway Commission to perform its function as set forth by the Legislature. As we stated in State ex rel. Sego v. Kirkpatrick, supra, 86 N.M. at 362, 524 P.2d at 978:

The power of veto, like all powers constitutionally conferred upon a governmental officer or agency, is not absolute and may not be exercised without any restraint or limitation whatsoever. The very concept of such absolute and unrestrained power is inconsistent with the concept of "checks and balances," which is basic to the form and structure of State Government created by the people of New Mexico in their constitution, and is inconsistent with the fundamental principle that under our system of government no man is completely above the law. See, Jenkins v. Knight, 46 Cal.2d 220, 293 P.2d 6 (1956). (Emphasis added.)

The people granted the Legislature the power to determine whether the State Highway Commission would be subject to the control of the Governor. The Legislature could have granted such power to make the State Highway Engineer responsible to the Governor. In fact the 1977 Legislature did give the Governor a means of controlling the appointment of the engineer in the future. The question before us now is whether § 55-2-1, et seq., supra, exempts the position of State Highway Engineer, or supercedes § 5-4-3, supra.

Section 55-2-1.6, supra, establishes the position of State Highway Engineer and provides for his appointment. Subsection C also provides:

He shall devote his entire time to his duties and shall receive an annual salary set by the commission. No state highway engineer, during his period of service, shall hold any other office under the laws of this state or of the United States. (Emphasis added.)

Section 55-2-1.6(A), N.M.S.A.1953 (Supp.1975) provides that the State Highway Department shall be under the control of an "executive officer" to be known as the "state highway engineer." Section 55-2-15, N.M.S.A.1953 provides that the State Highway Commission shall appoint a State Highway Engineer who shall be in general charge of the works of the commission and be its executive representative. This statute also provides that the State Highway Engineer shall hold office during the pleasure of the State Highway Commission.

Section 5-4-3, supra, permits respondent to transfer employees where he sees fit:

The governor is further authorized, subject to the approval of the state board of finance, to...