State ex rel. Capitol Addition Bldg. Comm'n v. Connelly

• Decision Date: 14 June 1935
• Docket Number: No. 4114.,4114.
• Citation: 39 N.M. 312,46 P.2d 1097
• Parties: STATE ex rel. CAPITOL ADDITION BLDG. COMMISSIONv.CONNELLY.
• Court: New Mexico Supreme Court

39 N.M. 312

46 P.2d 1097

STATE ex rel. CAPITOL ADDITION BLDG. COMMISSION

v.CONNELLY.

No. 4114.

Supreme Court of New Mexico.

June 14, 1935.

Original mandamus action by the State, on the relation of the Capitol Addition Building Commission, against James J. Connelly, state treasurer.

Peremptory writ of mandamus ordered.

Term “debt” within constitutional provision limiting debt contracting power of municipalities refers to obligation pledging for repayment general faith and credit of municipality which contemplates levy of general property tax as source of funds with which to retire obligation. Const. art. 9, §§ 8, 10, 12, § 11, as amended, see Laws 1933, p. 538.

Frank H. Patton, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for relator.

H. A. Kiker, Marcia Hertzmark, and A. M. Fernandez, all of Santa Fe, for respondent.

SADLER, Chief Justice.

The state, at the relation of Capitol Addition Commission, invokes our original jurisdiction in mandamus to compel James J. Connelly, as state treasurer, to countersign certain debentures authorized under the provisions of chapter 14, Special Session Laws of 1934, being an act entitled, “An Act Authorizing the Construction of an Addition to the Capitol Building, Providing Funds for the Construction and Equipment of a Building at Santa Fe to be Known as the ‘Capitol Addition Building,’ imposing an Additional Fee Upon Civil Actions Filed in the District Courts of the State of New Mexico to Provide for the Payment of Interest and Principal Authorizing the Issue and Sale of Debentures to Provide Funds Therefor, and Creating a Building Commission and Vesting Powers in such Commission,” approved April 27, 1934.

The petition in mandamus, after alleging that relator is the duly constituted Capitol Addition Commission composed of J. O. Seth, Herbert B. Gerhart, and Daniel T. Kelly, discloses that funds with which to construct and equip the building contemplated by the act under the terms thereof are to be supplied by a fee of $2.50 levied upon every civil action filed in the office of clerks of the various district courts of the state; but, in order to render such funds immediately available, the relator and respondent are authorized to anticipate proceeds of the levy of such fee “by the issuance and sale of capitol addition building debentures in such amounts, not exceeding in the aggregate one hundred seventy-five thousand ($175,000) dollars, at such times and bearing interest at such rates, not exceeding four per centum per annum, as the said commission may determine.”

The act, as shown by the petition, further provides that the debentures shall be signed by the chairman of the Capitol Addition Commission, attested by its secretary, with the seal of the commission affixed, and countersigned by respondent as state treasurer. Interest coupons are also to be attached bearing the facsimile signature of respondent, calling for semiannual installments of interest.

Further allegations of the petition disclose that relator, conformably to provisions of the act, and by resolution duly adopted, has determined upon the immediate issuance and sale of authorized debentures in the amount of $100,000, in denominations of $500 each, carrying interest and maturities as provided by the act; that same have been duly signed, attested, and sealed by the chairman and secretary of relator, and presented to respondent for his counter signature, as required by the act, with a written request that he proceed in accordance with the duty imposed upon him by section 15 of the act to offer said debentures for sale.

The respondent's written refusal to countersign and sell said debentures is then pleaded, the ground advanced for so refusing being respondent's opinion that the issuance of same under authority of the act in question would be in violation of the Constitution of the state of New Mexico.

Upon filing and presentation of relator's petition in mandamus, we ordered issuance of the alternative writ. Respondent's answer, after admitting all allegations of fact in the petition, clarifies the somewhat general nature of the ground of his refusal set forth in the letter to relator antedating suit. His answer herein discloses that the particular constitutional provision moving him to question validity of the proposed debentures is article 9, § 8. He contends that the debt proposed to be created by the issuance of said debentures is such a debt as is prohibited by the article of the Constitution in question, viz., a general obligation on the part of the state, requiring approval by a majority vote of the qualified electors upon submission at a general election, and compliance with all other provisions of said article incident to lawful creation of such a debt.

[1] In addition to this vital objection, respondent also raises certain practice questions, viz., (a) that Capitol Addition Commission is not a proper party relator, and (b) that this court should not entertain original jurisdiction of the cause, particularly at the instance of a private suitor. The main objection to Capitol Addition Commission as party relator lies in the assertion that it is not by the act created a body corporate, nor authority conferred for suits against it, nor expressly for suits by it except in the single case of condemnation suits. The objection to an exercise of original jurisdiction is that to do so violates the declared policy of this court as laid down in State ex rel. Owen v. Van Stone, 17 N. M. 41, 121 P. 611, not to exercise its original jurisdiction in the matter of granting the prerogative writs, in the absence of some controlling necessity, of which it is the sole judge, and not to do so in any case brought at the instance of a private suitor.

All parties agree that the state is here the real party plaintiff in interest. To hold, if we should resolve these procedural questions, that the present relator lacks capacity or is not a proper party relator, would be but to sacrifice substance to form. An amendment would naturally follow substituting the state as the real as well as the nominal party plaintiff, a result which we now have power to accomplish through proper order. And so, without deciding the question, but with consent of the parties as expressed at oral argument, the petition, writ, and all subsequent orders, pleadings, and proceedings will be deemed amended by substituting as plaintiff herein the name of the state upon relation of the Attorney General. So amended, we entertain no doubt of our right within the policy declared in State ex rel. Owen v. Van Stone, supra, to entertain original jurisdiction of the cause.

We are thus brought to a consideration of the main question presented, to wit, Will the debentures in question, when issued, constitute a general obligation on the part of the state? If so, the respondent is right in his refusal to countersign and sell the same, since admittedly the law authorizing such debentures has not been submitted to a vote of the qualified electors of the state, much less approved by them. The relator rests its case upon the contention that the debentures, when issued and sold, will create no debt within the fair intendment and meaning of the constitutional provision invoked by respondent. Whether it does involves a construction of the terms of the act, in the light of applicable constitutional provisions.

The act carries an appropriation of $175,000 for the purpose of constructing and equipping a building to be known as Capitol Addition or Supreme Court building, “wherein shall be officed the Supreme Court of the State of New Mexico, the State Library, the Department of Justice, and the State Treasurer.” Section 1. A fee of $2.50 is levied upon each and every civil action filed in the office of the clerks of the various district courts, to be paid to the clerk by the party filing the action, in addition to the ordinary docket fee provided by law. The $2.50 fees so collected must be kept by the clerk in a separate fund and remitted to the state treasurer on the first day of each month, “for the purpose of paying the principal and interest on the debentures herein authorized to be issued and sold.” Section 4. When a sufficient sum has been thus realized to pay the unpaid principal and interest of every debenture so issued, as and when payable, the state treasurer is directed to certify such fact to the various district clerks, who thereupon shall cease collecting the fee imposed.

As heretofore stated, the set authorizes the Capitol Addition Commission and respondent to anticipate the proceeds of the collection of the fee imposed by issuing and selling debentures in the aggregate sum of $175,000. While the form of said debentures is not set out in the statute, the substance of what they shall provide is declared therein. The date they shall bear, their maximum rate of interest, and maturities are provided. They are to be serial in form and payable in their serial order. Interest coupons are to be attached. They are made payable as to both interest and principal at the office of the state treasurer at Santa Fe, N. M.

Section 12 of the act provides: “Sec. 12. The issue and sale of said debentures shall constitute an irrevocable and irrepealable contract between the state of New Mexico and the owner of any of said debentures, that the taxes and/or fees pledged for payment thereof, at the rate now provided by this law shall not be reduced so long as any of said debentures remain outstanding and unpaid, and that the state will cause said taxes and/or fees to be promptly collected and set aside and applied to pay said debentures and interest according to the terms thereof. Any holder of any of the debentures issued pursuant to the provisions of this act, or any person or officer being a party in interest, may either at law or in equity by suit, action or mandamus, enforce and compel the performance of the duties required by this act of any...