State ex rel. Gomez v. Campbell
| Decision Date | 08 March 1965 |
| Docket Number | No. 7678,7678 |
| Citation | 75 N.M. 86,1965 NMSC 25,400 P.2d 956 |
| Parties | STATE of New Mexico on the relation of Frank R. GOMEZ et al., Relators, v. Jack M. CAMPBELL, as Governor et al., Respondents. |
| Court | New Mexico Supreme Court |
Seth, Montgomery, Federici & Andrews, Santa Fe, Fred C. Hannahs, for relators.
Earl E. Hartley, Atty. Gen., Frank Bachicha, Jr., Jay R. Rosenthal, Asst. Attys. Gen., Santa Fe, for respondents.
In this original proceeding in mandamus, relators seek to require the governor and eleven state boards or commissions to return, and thereafter maintain, the main offices of the agencies at the capital and not elsewhere.
The fundamental question involved relates to the meaning of art. V, Sec. 1, of the New Mexico Constitution, i. e., whether the constitution makes it mandatory that all officers of the executive department maintain their offices at the capital.
All of the respondents, other than The Honorable Jack M. Campbell, Governor, are duly appointed state and public officers and constitute the governing members of the various state agencies named. The principal offices of each of these eleven agencies are maintained in Albuquerque, New Mexico, rather than Santa Fe, the state capital. The relators (fourteen in number) are residents, citizens, qualified electors and taxpayers of the city and county of Santa Fe, who, on behalf of themselves and other citizens of the state similarly situated, demanded of the attorney general that he institute appropriate action to obtain the removal to Santa Fe of all offices of agencies of the executive branch of the state government, which offices were maintained at places other than Santa Fe. In response to this request, the attorney general declined to take any action and suggested that, inasmuch as the question was of great moment and would ultimately reach the courts, therefore relators should present the matter for court determination 'with all due speed.'
It has been stipulated that any formal demand made upon the governor or any of the other respondents to move their main offices to Santa Fe would have been refused. The parties have also agreed that there are approximately 286 employees of the state agencies, whose jobs or positions might be directly affected by a decision favorable to the relators; and it has been stipulated that the issue as to whether the constitution requires that all agencies of the executive branch of the state government (other than necessary district offices) must be maintained within the city of Santa Fe is of great moment, and that this question is of great public interest, not only to the citizens of Santa Fe, but to the entire state.
The alternative writ of mandamus, in addition to stating what we have above related, alleges that the cause of action pertains to the general public, affects the sovereignty of the state and the constitutional rights of its citizens, and is of general interest to and affects the rights of relators in common with those of the general public; that the relators and the general public are beneficially interested in the enforcement of the provisions of the constitution. The alternative writ further states (although denied by respondents) that the provisions of art. V, Sec. 1, of the New Mexico Constitution clearly establishes that there is a duty to maintain all of the offices of the defendant agencies, including their public records, books, papers and seals, in Santa Fe. Relators claim that the duty established by the constitution and the Enabling Act is clear, definite and fixed, is merely of ministerial character, calls for no exercise of administrative judgment or discretion, does not relate to political matters, and that there is no valid excuse for the respondents' failure to perform such a duty.
There are also general allegations made by relators, which they claim require the assumption by this court of jurisdiction of the case. These have to do with the applicability of the venue statute (Sec. 21-5-1(G), N.M.S.A.1953), relating to suits against state officers; the fact that the employees of the agencies are directly affected and are therefore uncertain as to the location of their employment; that it is questionable whether the district courts have jurisdiction in a case against the governor; that until there is a determination of the problem, the state will be unable to intelligently program its future office space requirements; problems involving the expiration of present leases; that the expenditure of public funds for rental and lease payments at places other than Santa Fe constitutes a misapplication of public funds; and, lastly, that it is for the best interest of the general public that the issues be resolved at an early date.
We also take note of the allegation in the petition for the writ and the alternative writ that the attorney general's office in 1959 rendered an opinion, which held that the unemployment security commission was a part of the executive branch of the state government and could not maintain its principal office at a place other than Santa Fe. There has been no compliance with this opinion, and, although the same has not been withdrawn or superseded by the attorney general, that office, in this present litigation, takes a position directly contrary to that stated in the mentioned opinion.
The constitutional provision with which we are here concerned is, as stated, Sec. 1 of art. V of the Constitution, the entire article bearing the title of 'EXECUTIVE DEPARTMENT.' The section involved reads as follows:
'The executive department shall consist of a governor, lieutenant-governor, secretary of state, state auditor, state treasurer, attorney-general, superintendent of public instruction and commissioner or [of] public lands, who shall be elected for the term of two years beginning on the first day of January next after their election.
'Such officers shall, after having served two consecutive terms, be ineligible to hold any state office for two years thereafter.
'The officers of the executive department except the lieutenant-governor, shall during their terms of office, reside and keep the public records, books, papers and seals of office at the seat of government.'
We first address ourselves to the standing of relators to maintain this action. In this connection, we believe that the case law in New Mexico is sufficiently clear as to make it unnecessary to discuss the many cases cited from other jurisdictions.
Relators' principal reliance is upon Hutcheson v. Gonzales, 1937, 41 N.M. 474, 71 P.2d 140, which was (as is the instant case) an original proceeding in this court. There the suit was brought by a private citizen, resident and voter of Bernalillo County against the secretary of state, and sought to require the secretary of state to publish proposed constitutional amendments before a special election, although she had declined to do so, upon the advice of the attorney general, contending that the receipt of referendum petitions suspended the legislative act calling the special election and automatically 'deferred' the proposition until the next general election. This court, in an exhaustive opinion, made the writ permanent and, in the course of that opinion, discussed the relator's capacity to sue. Although much is said in Hutcheson as to capacity to sue, nevertheless it seems clear to us that the principal reason that the court accepted jurisdiction was that the case related to the exercise of a private right, i. e., the voting franchise, not only by the relator there, but by all others similarly situated. The court, in Hutcheson, although recognizing the rule that in the absence of some controlling necessity the court should decline jurisdiction in all cases brought at the instance of a private suitor (State ex rel. Owen v. Van Stone, 1912, 17 N.M. 41, 121 P. 611), recognized, however, that exceptions exist where the case "is publici juris; that is, a case which affects the sovereignty of the state, its franchises or prerogatives, or the liberties of its people." The right to vote on an amendment to the constitution is one of the liberties of the people of the state of New Mexico, and therefore placed Hutcheson within one of the exceptions to the rule. Similarly, State ex rel. Burg v. City of Albuquerque, 1926, 31 N.M. 576, 249 P. 242, related to the right to vote. Thus we do not feel that either case is authority sustaining relators' position here. There is no question in this case relating to the elective franchise or the right to vote--it is merely a problem of constitutional construction.
To our way of thinking, the case of Asplund v. Hannett, 1926, 31 N.M. 641, 249 P. 1074, 58 A.L.R. 573, although differing materially from that before us, contains the answer to the immediate problem. The court stated:
'* * * So we seem to have two questions: The first, whether a citizen may appeal to the courts to prevent a violation of the Constitution; the second, whether a taxpayer may apply to them to prevent misuse of public funds.'
The court then directed its attention to the first question above, and concluded that a citizen is without standing to question the constitutionality of a statute. In reaching this result, we pointed out in Asplund that the courts are not constituted as a reviewing authority over the other departments of the state, or as guardian of the constitution, and relied upon Baca v. Perez, 1895, 8 N.M. 187, 42 P. 162; Kelley v. Marron, 1915, 21 N.M. 239, 153 P. 262; and Asplund v. Alarid, 1923, 29 N.M. 129, 219 P. 786.
In Asplund v. Hannett, supra, we quoted from the opinion in Asplund v. Alarid, supra, and we hereafter repeat this quotation, although inserting in brackets the word 'executive' in lieu of the word 'legislative,' so as to make it plain that the quotation applies equally to the instant case to the 'executive' as it did to the 'legislative' in Asplund v. Alarid, supra...
To continue reading
Request your trial
-
Doe v. Maher
...and the court would be remiss in its duty if it did not address them. Green v. State, 166 So.2d 585, 587 (Fla.1964); State v. Campbell, 75 N.M. 86, 92, 400 P.2d 956 (1965). So in Cyphers v. Allyn, 142 Conn. 699, 702, 118 A.2d 318 (1955), the Supreme Court entertained the constitutional argu......
-
Deutsche Bank Nat'l Trust Co. v. Johnston
...great public importance of constitutional challenge to partial vetoes); State ex rel. Gomez v. Campbell, 1965–NMSC–025, ¶¶ 15, 18, 75 N.M. 86, 400 P.2d 956 (concluding that the plaintiffs did not establish standing but proceeding to the merits of the constitutional question in that case due......
-
State v. Ball
...to a practical construction of the constitutional language, a construction to which we must give great weight. State v. Campbell, 75 N.M. 86, 94, 400 P.2d 956, 962 (1965). B. Early Justice of the Peace At the time the Constitution was adopted, many of New Mexico's statutes regarding justice......
-
Eastham v. Public Employees Retirement Ass'n Bd.
...524 P.2d 975 (1974); State ex rel. Castillo Corp. v. New Mexico St. T. Com'n, 79 N.M. 357, 443 P.2d 850 (1968); and State v. Campbell, 75 N.M. 86, 400 P.2d 956 (1965). In those cases we established that even though a private party may not have standing to invoke the power of this court to r......