State Ex Rel. Clancy v. Hall

• Citation: 23 N.M. 422,168 P. 715
• Decision Date: 09 November 1917
• Docket Number: No. 2129.,2129.
• Parties: STATE ex rel. CLANCYv.HALL, State Treasurer.
• Court: Supreme Court of New Mexico

23 N.M. 422

168 P. 715

STATE ex rel. CLANCY

v.HALL, State Treasurer.

No. 2129.

Supreme Court of New Mexico.

Nov. 9, 1917.

Syllabus by the Court.

There is a presumption in favor of the constitutionality of a statute, and in accordance therewith, when a statute is susceptible of two constructions, one of which supports the act and gives it effect, and the other renders it unconstitutional and void, the former will be adopted, even though the latter may be the more natural interpretation of the language used. Held, that chapter 111, Laws 1917, is not unconstitutional and void, because it appoints a commission for the “investigation and settlement” of the Colorado-New Mexico boundary, as it will be presumed the Legislature did not intend to authorize the commission itself to make a binding settlement, but only to conduct negotiations for a settlement, which would ultimately be approved by the Legislatures of the two states.

Said act is not unconstitutional and void because it authorizes the commission to “commence and prosecute any and all actions necessary and requisite in the judgment of the commission for the proper determination and location of said boundary lines.”

The act is not a delegation of legislative power, because the Legislature itself authorizes and directs the institution of the suit, and makes the boundary commission the agent of the state for the purpose of so doing.

The court will not look behind the enrolled and engrossed bill, properly signed and certified as required by the Constitution, and filed in the office of the secretary of state, to the journal of either house of the Legislature, for the purpose of ascertaining whether the Legislature has observed the constitutional requirements as to procedure in the passage of the bill; Kelley v. Marron, 21 N. M. 239, 153 Pac. 262, followed.

Where the state Constitution does not prescribe the duties of the Attorney General, it is competent for the Legislature to authorize named attorneys to appear for the state in litigation affecting its interests, or to provide for the employment of attorneys by a commission appointed to represent the state.

When a power is conferred by statute, everything necessary to carry out the power and make it effectual and complete will be implied.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Mandamus by the State of New Mexico, on relation of Frank W. Clancy, against H. L. Hall, as Treasurer of the State of New Mexico. Judgment for relator, and defendant appeals. Affirmed.

Court will not look behind enrolled and engrossed bill, properly signed and certified as required by Constitution to journal of either house, to ascertain whether Legislature has observed constitutional requirements as to procedure in passing bill.

Harry L. Patton, Atty. Gen., and Milton J. Helmick, Asst. Atty. Gen., for appellant.

F. W. Clancy, of Santa Fé, for appellee.

ROBERTS, J.

On August 18, 1917, Frank W. Clancy, an attorney, presented to the treasurer of the state of New Mexico, a warrant in his favor in the sum of $2,500, payable out of the state boundary commission fund, and drawn by W. G. Sargent, state auditor, as part payment of special counsel fees under the provisions of chapter 111, Laws 1917. The treasurer of the state refused to honor and pay such warrant on the ground that chapter 111 of the Laws of 1917, by authority of which the warrant was issued, was an invalid enactment, in violation of the Constitutions of the United States and the state of New Mexico. On August 21, 1917, Frank W. Clancy filed his application and complaint in the district court of Santa Fé county, setting forth the facts of the presentation of the warrant and the refusal of payment, and prayed for the issuance of a writ of mandamus to compel the state treasurer to honor the warrant in question. The alternative writ was accordingly issued and directed to the state treasurer. To this writ the state treasurer made return and answer, which admitted the presentation of the warrant and the refusal to pay the same, but which attempted to show as a cause for such refusal that said act was unconstitutional, specifying the reasons for such claimed unconstitutionality. The return of the state treasurer was held insufficient by the lower court, and a final judgment was rendered, by which a peremptory writ was ordered to be issued, directed to the treasurer, commanding the payment of the warrant. From such final order and judgment this appeal is prosecuted, and the sole issue for determination is the validity of chapter 111 of the Laws of 1917.

The first section of the act provides for the creation of a boundary commission, consisting of three members, to be appointed by the Governor of the state, and contains other provisions relative to the organization of the board when it shall be appointed. The second and third sections of the act read as follows:

“Sec. 2. There is hereby appropriated the sum of thirty-five thousand dollars ($35,000) for the expenses and the payment of attorneys' fees in the prosecution of the suit of the state of New Mexico against the state of Texas, now pending in the Supreme Court of the United States, concerning the boundary line between the state of New Mexico and the state of Texas, and for the investigation and settlement of the dispute between the state of New Mexico and the state of Colorado regarding the proper location of the boundary line between said states.

Sec. 3. The said state boundary commission is hereby authorized to employ special counsel to represent the state in the prosecution of said suit, and authorize such special counsel in the name of the state to commence and prosecute any and all actions necessary and requisite in the judgment of the commission for the proper determination of the location of said boundary lines, and out of the money herein appropriated to pay to the attorneys so employed such compensation as may be fixed by the commission, and to pay the expenses of printing and preparing the record and the briefs in said suit, and such other expenses in connection with said matters, including any and all necessary surveys which the commission may deem advisable to be made, as the commission may deem necessary, including the hotel and traveling expenses of the attorneys and members of the commission.”

The fourth section contains provisions relative to the payment by the commission of the cost, expenses, and compensation of attorneys, and concludes as follows:

“The members of said state boundary commission shall receive no compensation for their services, and said commission shall cease to exist upon the filing with the secretary of state of a certified copy of the final decree or judgment of the Supreme Court of the United States in the suit of the state of New Mexico against the state of Texas, and of the filing of the decree or judgment or other evidence of the settlement or determination of the proper location of the boundary line between the state of New Mexico and the state of Colorado.”

[1] The first point made by appellant is that the act in question is in violation of the Constitution of the United States, in that it attempts to prescribe a settlement of the question of the location of the boundary between the states of New Mexico and Colorado, without an agreement and compact between said states to be ratified by the Congress of the United States; it being appellant's contention that there is only one way under the Constitution of the United States by which a boundary dispute between states may be determined, in the absence of a suit in the Supreme Court of the United States, and that is by solemn compact between the states, to be ratified by Congress, citing the case of Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. Ed. 1233. Assuming the statement of the law to be correct, in order to sustain appellant's contention in this regard it would be necessary to hold that the act in question authorized the commission itself to effect a settlement with the state of Colorado in regard to the boundary, and that such settlement should be binding upon the state of New Mexico. The language of the act in this regard, after making the appropriation and specifying certain purposes for which it is to be used, proceeds as...