State Ex Rel. Delgado v. Romero

• Decision Date: 23 March 1912
• Citation: 124 P. 649,17 N.M. 81
• Parties: STATE ex rel. DELGADOv.ROMERO, County Treasurer.
• Court: New Mexico Supreme Court

17 N.M. 81

124 P. 649

STATE ex rel. DELGADO

v.ROMERO, County Treasurer.

Supreme Court of New Mexico.

March 23, 1912.

Syllabus by the Court.

The last clause of section 1 of article 10 of the Constitution of New Mexico, which reads as follows: “And no county officer shall receive to his own use any fees or emoluments other than the annual salary provided by law, and all fees earned by any officer shall be by him collected and paid into the treasury of the county”-is self-executing.

The section applies to officers elected at the first election, and by its provisions they are required to collect and pay into the county treasury all fees earned by them, and cannot retain any of such fees to their own use.

The Constitution should be so construed as to give effect to the intent of the people in adopting it, but the intent is to be found in the instrument itself.

The presumption is that each department of the government will do its duty, and the fact that it might fail therein should not influence the court.

There is no presumption in law that a public official is to receive a salary.

The compensation of a county officer, under the provisions of section 1 of article 10, is dependent upon the enactment by the Legislature of a salary law, and he cannot recover for his services until such a law is passed, and then only as provided by such act.

The mere fact that legislation might supplement and add to or prescribe a penalty for the violation of a self-executing provision of a Constitution does not render such a provision ineffective in the absence of such legislation.

If a constitutional provision, either directly or by implication, imposes a duty upon an officer, no legislation is necessary to require the performance of such duty.

Appeal from District Court, San Miguel County; David J. Leahy, Judge.

Action by the State, on the relation of Lorenzo Delgado, against Eugenio Romero, Treasurer of San Miguel County. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

There is no presumption in law that a public official is to receive a salary.

Charles W. G. Ward, of East Las Vegas, and A. B. McMillen, of Albuquerque, for appellant. Frank W. Clancy, Atty. Gen., for appellee.

ROBERTS, C. J.

Section 1 of article 10 of the Constitution of the State of New Mexico is as follows: “The Legislature shall at its first session, classify the counties and fix salaries for all county officers, which shall also apply to those elected at the first election under this Constitution. And no county officer shall receive to his own use any fees or emoluments other than the annual salary provided by law, and all fees earned by any officer shall be by him collected and paid into the treasury of the county.” If the latter sentence of this provision is self-executing, then it is conceded that the county clerk cannot successfully maintain this action; if not self-executing, then he is entitled to recover.

[1]The various provisions of the Constitution demonstrate clearly that it was the intention of the convention to substitute salaries in lieu of fees, and that all officials, both state and county, should be upon a salary basis. The salaries of Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, superintendent of public instruction, commissioner of public lands, lieutenant governor, judges of the supreme and district courts, and members of the corporations commission, were all definitely fixed, and it was provided that the district attorney should “receive such salary as might be provided by law,” and section 9 of article 20 of the Constitution provides: “No officer of the state who receives a salary shall accept or receive to his own use any compensation, fees, allowances or emoluments of office in any form whatever, except the salary provided by law.”

[2] By section 1 of article 10, supra, it will be noted that it was the intention of the framers of the Constitution that a salary system should be provided for all county officers. It is contended, however, by the Attorney General, with much force, that the section in question is not self-executing, and that it was the intention of the convention that the section should not apply to officers elected at the first election, until such time as the Legislature might enact a “salary law,” and that the prohibitions do not become effective until such a law is enacted. It is manifest that the Legislature, by inaction, could continue forever in New Mexico the present fee system, if this contention is correct. However, such considerations should not influence the decision of the controversy, or warp the construction of the section, if it is plainly the intention of the section to have such effect.

[3] Judge Cooley, in his work on Constitutional Limitations (6th Ed.) p. 98, says: “The object of the construction as applied to a written instrument is to give effect to the intent of the people in adopting it. In the case of all written laws it is the intent of the lawgiver that is to be enforced; but this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and, unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain but to enforce it.”

It must be evident that the constitutional convention intended to abolish the fee system, as applied to the named officers in New Mexico. Such an intention is expressed in every line of the instrument referring to the matter. It remains to consider whether the prohibitions imposed against receiving fees to “their...