State ex rel. Constitutional Convention v. Evans

• Decision Date: 20 October 1969
• Docket Number: No. 8915,8915
• Parties: STATE of New Mexico ex rel. CONSTITUTIONAL CONVENTION, Bruce King, President, Petitioner, v. Ernestine D. EVANS, Secretary of State, Respondent.
• Court: New Mexico Supreme Court

Page 250

460 P.2d 250

80 N.M. 720

STATE of New Mexico ex rel. CONSTITUTIONAL CONVENTION, Bruce

King, President, Petitioner, v. Ernestine D. EVANS, Secretary of State, Respondent.

No. 8915.

Supreme Court of New Mexico.

Oct. 20, 1969.

W. W. Atkinson, Albuquerque, for petitioner

James A. Maloney, Atty. Gen., J. F. Bingaman, Asst. Atty. Gen., Santa Fe, for respondent.

OPINION

MOISE, Justice.

The electors of the state having voted approval of a call for a convention to revise or amend the constitution, the legislature, at its next session, provided by law for calling the same. This was all done in accord with the provisions of art. XIX, § 2, of our present constitution, and appears as ch. 134, N.M.S.L.1969. The petitioner here, being the body convened by virtue of that law, asserts its right to direct respondent in connection with the disbursement of the funds appropriated to her in § 28(C) of said ch. 134, supra, which reads as follows:

'There is appropriated from the general fund:

'* * *

'C. to the secretary of state for use in the fifty-eighth fiscal year the sum of one hundred fifty thousand dollars ($150,000) for the purpose of publishing notice and the content of any revision or amendment proposed by the constitutional convention and for conducting the special election called by the governor for the approval or rejection by the people of such revision or amendment; * * *.'

It is petitioner's position that its Resolutions No. 3 and No. 4, attached hereto as Appendix A and Appendix B, respectively, are controlling on respondent because the substance thereof is not covered by the provisions of ch. 134, § 28(C), supra, and that pursuant to inherent power resting in petitioner, it had the power to adopt the same. They further claim that if any conflicts exist between their resolutions and the said section of the statute, their determination in superior and controlling.

Respondent has sought advice from the Attorney General and, based on his opinion, has informed petitioner that she does not propose to comply with the resolutions mentioned above, but to follow the advice contained in the Attorney General's opinion. This is attached as Appendix C.

On the application of petitioner, we issued our alternative writ of mandamus directing the respondent to follow the resolutions and not the opinion noted above. Return has been filed admitting the material facts, the issues have been briefed and argued, and the case is ripe for decision. Because of the importance of the problem and the exigencies of time, we have given the matter precedence over other pending matters, and announce our decision with the least possible delay consistent with deliberate consideration of the questions involved.

The first problem requiring an answer is whether art. XIX, § 1, New Mexico Constitution, applies in circumstances such as are here present. The Attorney General has advised that in his opinion it does. We disagree. That section, so far as material, reads:

'Any amendment or amendments to this Constitution may be proposed in either house of the legislature at any regular session thereof; and if a majority of all members elected to each of the two houses voting separately shall vote in favor thereof, such proposed amendment or amendments shall be entered on their respective journals with the yeas and nays thereon.

'The secretary of state shall cause any such amendment or amendments to be published in at least one newspaper in every county of the state, where a newspaper is published once each week, for four consecutive weeks, in English and Spanish when newspapers in both of said languages are published in such counties, the last publication to be not more than two weeks prior to the election at which time said amendment or amendments shall be submitted to the electors of the state for their approval or rejection; and the said amendment or amendments shall be voted upon at the next regular election held in said state after the adjournment of the legislature proposing such amendment or amendments, or at such special election to be held not less than six months after the adjournment of said legislature, at such time as said legislature may by law provide. If the same be ratified by a majority of the electors voting thereon such amendment or amendments shall become part of this Constitution. * * *' (Emphasis added.)

Our conclusion is based on the following reasons: (1) The italicized word 'such' refers back to 'any amendment or amendments to this Constitution' proposed and passed by the legislature. To our minds, this clearly applies where one or more amendments to the present constitution are being considered, but does not apply where an entirely new constitution is being weighed. (2) Possibly more convincing than the first reason is the presence of section 2 in art. XIX of the Constitution, setting forth the procedure for calling a constitutional convention to revise or amend the Constitution. The section reads:

'Whenever, during the first twenty-five years after the adopted of this Constitution, the legislature, by a three-fourths vote of the members elected to each house, or, after the expiration of said period of twenty-five years, by a two-thirds vote of the members elected to each house, shall deem it necessary to call a convention to revise or amend this Constitution, they shall submit the question of calling such convention to the electors at the next general election, and if a majority of all the electors voting on such question at said election in the state shall vote in favor of calling a convention the legislature shall, at the next session, provide by law for calling the same. Such convention shall consist of at least as many delegates as there are members of the house of representative. The Constitution adopted by such convention shall have no validity until it has been submitted to and ratified by the people.'

The petitioner came into being through compliance with section 2 and not section 1 of art. XIX (see ch. 134, § 1, N.M.S.L.1969) and the provisions of section 1 can in no way be made applicable by implication or otherwise.

It is true, as argued by petitioner, if there is reason to provide for certain publicity to proposed amendments when submitted separately or in pairs, the considerations for such publicity would be even more compelling when a completely new document is being submitted to a vote. The answer is to be found in the fact that the two sections are of equal dignity, McCormick v. Board of Education, 58 N.M. 648, 274 P.2d 299 (1954). Section 1 is not to be read as if section 2 did not exist. Neither is there reason to read into section 2 the limitation of section 1, not included within the language of section 2. La Follette v. Albuquerque Gas & Electric Co.'s Rates, 37 N.M. 57, 17 P.2d 944 (1932); Rathjen v. Reorganized School District R--11, 365 Mo. 518, 284 S.W.2d 516 (1955); Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229 (1912). An interpretation which gives complete effect to both sections is required. State ex rel. Hannah v. Armijo, 38 N.M. 73, 28 P.2d 511 (1933); State ex rel. Charlton v. French, 44 N.M. 169, 99 P.2d 715 (1940); Staples v. Gilmer, 183 Va. 613, 33 S.E.2d 49, 158 A.L.R. 495 (1945); 16 C.J.S. Constitutional Law § 23. In view of the presence of section 1 of art. XIX which clearly applies to amendments proposed in the legislature, and section 2 which applies to revisions or amendments made by a convention called for that purpose, we do not consider as applicable cases such as State ex rel. Forchheimer v. Le Blond, 108 Ohio St. 41, 140 N.E. 491 (1923), and State ex rel. Miller v. Taylor, 22 N.D. 362, 133 N.W. 1046 (1911), cited by respondent, and holding generally that the word 'amendment' should be given a broad meaning so as to include any and all revisions or changes. As a matter of fact, in the latter of these cases we find support for the position we here adopt, because that case turned largely on the fact that a provision comparable to our art. XIX, § 2, had been defeated in the constitutional convention and the constitution, as adopted, had only a provision similar to art. XIX, § 1. It is implied that if the situation had been otherwise and both sections had been included, a different result would have followed.

Having concluded that the respondent is not controlled by art. XIX, § 1, standing alone, and since art. XIX, § 2, does not detail the method and procedures for publicizing the contents of the document adopted by petitioner and to be submitted to the electorate for their approval or disapproval, does it follow that petitioner has the power and authority to direct and control the expenditures as was undertaken through adoption of Resolutions 3 and 4? Petitioner argues in this proceeding that its actions were lawful and proper, and that respondent should be directed to conform therewith.

In presenting its position, petitioner places principal reliance on the case of Carton v. Secretary of State 151 Mich. 337, 115 N.W. 429 (1908), wherein it appears that the right of a constitutional convention to change the date for submission of the constitution prepared by it to a vote of the people was held to be properly within the powers of the convention. The legislature had provided for the calling of the convention, and in the letislation had required submission of the constitution to a vote at the April election of 1908. It was contemplated that the convention would have completed its work by January 31, 1908, because of a provision that compensation of the delegates should cease on that date; but actually work was not completed until February 21, and the convention then directed that the submission to a vote be at the November, 1908 election. While a majority of the court agreed that the submission at the November, 1908 election was proper, there was no agreement as to the reasons for the result. Some of the judges felt the power to fix the date was inherent in the...