State Ex Rel. Hannah v. Armijo., 3893.

• Decision Date: 24 July 1933
• Docket Number: No. 3893.,3893.
• Parties: STATE ex rel. HANNAH et al.v.ARMIJO.
• Court: New Mexico Supreme Court

37 N.M. 423

24 P.2d 274

STATE ex rel. HANNAH et al.

v.ARMIJO.

No. 3893.

Supreme Court of New Mexico.

July 24, 1933.

Original prohibition proceeding by the State, on the relation of James D. Hannah and another, against the Hon. Luis E. Armijo, Judge of the Fourth Judicial District.

Alternative writ theretofore issued discharged.

Power to remove director of school district is not vested in state board of education under Constitution so as to preclude removal by district court. Comp.St.1929, § 96-105; Const. art. 12, § 6.

Irwin S. Moise, of Santa Rosa, and James L. Briscoe, of Tucumcari, for relators.

F. Faircloth, of Santa Rosa, for respondent.

SADLER, Justice.

The relators, James D. Hannah and Robert L. Riddle, as members of the board of education of the Santa Rosa independent school district, seek to prohibit Luis E. Armijo, as judge of the fourth judicial district of the state of New Mexico, sitting within and for the county of Guadalupe, from entertaining further jurisdiction in a proceeding pending before him having for its object their removal from office as directors of said school district.

The removal proceedings were instituted by the district attorney of said district under the authority of chapter 96, N. M. Statutes Annotated, 1929 Comp., and particularly §§ 96-105, 96-106, 96-123 and subsequent sections, and are based upon the verified petition of one Isidro L. Anaya, a resident taxpayer of the town of Santa Rosa in said county. Upon the filing and reading of said petition, charging gross incompetency and gross negligence against relators in the performance of the duties of their offices, the respondent herein as judge of said court issued an order against relators commanding them to show cause before him at a time fixed, why they should not be suspended from office, as by statute authorized, pending final hearing in the matter.

It was at this stage of the matter that further proceedings before said judge were halted by an alternative writ of prohibition issued out of this court. The matter now comes before us upon application of relators to make said writ absolute. The first point urged by them goes to the sufficiency of the allegations of incompetency and negligence as set out in the accusation or petition filed before said district judge. Obviously this is not a matter in any manner questioning his jurisdiction to hear the cause. Insufficiency of allegation is a matter to be tested in some appropriate way in the court of first instance. Certainly that court has power to pass upon such a question.

[2] Relators urge with much vigor and earnestness their next point relied upon. Stated tersely, it is this: That by virtue of the provisions of article 12, § 6, of the state Constitution, the power to remove a director of a school district is vested in the state board of education, created by said provision of the state Constitution, and that the district court is without power, authority, or jurisdiction to remove. This contention is a direct challenge of respondent's jurisdiction of the subject-matter.

Section 6 of article 12 of the state Constitution provides as follows: “A state board of education is hereby created, to consist of seven members. It shall have the control, management and direction of all public schools, under such regulations as may be provided by law. The governor and the state superintendent of public instruction shall be ex-officio members of said board and the remaining five members shall be appointed by the governor, by and with the consent of the senate; and shall include the head of some state educational institution, a county superintendent of schools, and one other person actually connected with educational work. The legislature may provide for district or other school officers, subordinate to said board.”

The italicized portion of the foregoing constitutional provision is the portion thereof chiefly relied upon by relators and made the basis of their argument. The respondent, as district judge aforesaid, in his answer filed herein by way of return to the writ, bases his jurisdiction to hear the cause on the language of 1929 Comp. § 96-105, reading as follows: “Any county, precinct, district, city, town or village officer elected by the people, and any officer appointed to fill out the unexpired term of any such officer, may be removed from office on any of the grounds mentioned in this chapter and according to the provisions hereof.”

Counsel for...