State Ex Rel. Sena v. Trujillo

• Decision Date: 18 September 1942
• Docket Number: No. 4704.,4704.
• Citation: 46 N.M. 361,129 P.2d 329
• Parties: STATE ex rel. SENAv.TRUJILLO, State Auditor.
• Court: New Mexico Supreme Court

46 N.M. 361

129 P.2d 329

STATE ex rel. SENA

v.TRUJILLO, State Auditor.

No. 4704.

Supreme Court of New Mexico.

Sept. 18, 1942.

Appeal from District Court, Santa Fe County; David Chavez, Jr., Judge.

Mandamus by the State of New Mexico, on the relation of Jose D. Sena, against E. D. Trujillo, to compel respondent as State Auditor of the State of New Mexico to pay relator the pension provided by Laws 1941, c. 110, § 1 et seq. From an adverse judgment, respondent appeals.

Reversed with instructions.

“Pensions” for state employees are pay withheld to induce long-continued and faithful service, and the public benefit accrues by encouraging competent and faithful employees to remain in service and by retiring from service those who are incapacitated from performing duties as well as they might be performed by others more youthful, and to be valid the pension must be conferred upon persons who at the time of receiving the right to them are officers or employees of the state and they cannot be conferred upon persons who had previously to the grant retired from the state's service; a pension to such persons being an “appropriation of public funds” for individuals and a “gift” or “gratuity”.

Edward P. Chase, Atty. Gen., and George H. Hunker, Jr., and Howard F. Houk, Asst. Attys. Gen., for appellant.

Manuel A. Sanchez, of Santa Fe, for appellee.

MABRY, Justice.

We are here called upon to determine whether Chapter 110 of the Laws of 1941, which provides a pension for every person who has served the territory and the State of New Mexico for a period of 30 consecutive years and who has passed the age of 65 years, is applicable to one who meets the requirements of the Act as to period of service and age, but who had left the service of the State prior to the enactment of the statute. The statute provides:

“Section 1. That every person or persons, who has served the Territory and the State of New Mexico, for a period of thirty consecutive years, and who has passed the age of sixty-five (65) years, shall be entitled to receive a pension, in the sum of One Hundred and twenty-five ($125.00) dollars per month for the rest of his or her life.

“Section 2. The pension provided for in Section 1 of this Act shall be paid by the State Treasurer, on a warrant from the State Auditor, out of any funds in his hands, not appropriated for the payment of interest on the bonded debt.”

Suit was filed by one Jose D. Sena who had served as clerk of the supreme court of the Territory and the State of New Mexico for more than 30 consecutive years, seeking, through mandamus, to require respondent as State Auditor to pay him the $125 per month provided by the Act. The trial court upheld the position of relator Sena and directed payment of the amount prescribed by the Act, and respondent Trujillo appealed.

The constitutionality of the Act is not questioned, excepting as it applies to one not in the service of the State at the time of its passing. Sena had not been in such service for more than 10 years prior to the passage of the said Act.

Although three points are raised in the assignment of error, all of them clearly relate directly to each other and can be appropriately grouped and discussed under one point, viz., that it would be violative of the Constitution of the State to allow such pension to relator. There are only three sections of the Constitution which could have any bearing upon the question at issue, and these provide:

Section 14, Article IX: “Neither the state, nor any county, school district, or municipality, except as otherwise provided in this constitution, shall directly or indirectly lend or pledge its credit, or make any donation to or in aid of any person, association or public or private corporation, or in aid of any private enterprise for the construction of any railroad; ***.”

Section 27, Article IV: “No law shall be enacted giving any extra compensation to any public officer, servant, agent or contractor after services are rendered or contract made; nor shall the compensation of any officer be increased or diminished during his term of office, except as otherwise provided in this constitution.”

Section 31, Article IV: “No appropriation shall be made for charitable, educational or other benevolent purposes to any person, corporation, association, institution or community, not under the absolute control of the state, ***.”

Able briefs have been filed by both parties to the cause. Obviously both have made an exhaustive search for authority upon the point in question. It is conceded that this is a case of first impression here in this state. Appellant cites Mahon v. Board of Education of the City of New York, 171 N.Y. 263, 63 N.E. 1107, 89 Am.St.Rep. 810, as a case exactly in point and as one supporting his contention. Appellee relies upon the recent case of Bedford v. White, 106 Colo. 439, 106 P.2d 469, 474, in which a divided court upheld the constitutionality of the Colorado Pension Act as it applied to Justices of the Supreme Court who had served the required ten years upon the bench, and had reached the age of 65 years, regardless of the fact that such Justices were not serving the State in 1939, the date of the passage of the Act.

It probably will not be disputed that the Mahon case, supra, is in point, and that it involved an interpretation of Constitutional provisions similar to those here involved. But, appellee points out that this is not a late decision and says that many other courts have declined to follow it.

On the other hand, appellant questions the soundness of the holding in the Bedford case, supra, and looks, rather, to the dissenting opinion in this Colorado case for the better reason and logic. The majority opinion in Bedford v. White, supra, appears to rest upon the theory that the power to grant pensions to servants of the sovereign, be it the Nation or the State, has long been recognized and exercised without substantial question; and that unless directly and specifically prohibited by Federal or State Constitutions, such power may be exercised. We take the following pertinent language from the Bedford case: “Pensions for military service have been granted almost from the very inception of our government. In United States v. Hall, supra, the Court said: ‘Power to grant pensions is not controverted, nor can it well be, as it was exercised by the States and by the Continental Congress during the war of the Revolution; and the exercise of the power is coeval with the organization of the government under the present Constitution, and has been continued without interruption or question to the present time.’ The court speaking further said: ‘Power existed in the States before the Constitution was adopted, and it would serve to undermine the public regard for our great charter if it could be held that it did not continue the same power in the Congress.’ Powers that the states might and did grant to the federal government they may exercise unless prohibited by the federal Constitution or Constitutions of the respective states. Nowhere are pensions mentioned in the Constitution of Colorado. Unless the granting of them is expressly prohibited, or language is used that by necessary implication must be construed as a prohibition, the power to grant them exists as a residual power of the state.”

The Colorado court noticed and discussed the case of Mahon v. Board of Education, supra, and it distinguished this New York case upon the theory that it was rather directly grounded upon the proposition that “there was no moral obligation on the city of New York to establish a pension system in favor of teachers,” and that the benefits attempted to be bestowed were “extra compensation” and thus forbidden by the Constitution of that State.

The Colorado court, in applying the pension Act of that State to persons not rendering service at the time the Act was passed, made this observation: “If within the meaning of Constitutional provisions, such as section 28 of article V, supra, a pension is not extra compensation for services in office where, as in DeWolf v. Bowley [infra], the judge is in office when the act is passed, we are unable to see wherein the mere fact that all, instead of a part, of the service required is performed before the act is passed would change the situation. Surely no more merit arises deserving of the gratitude of the sovereign for faithful public services rendered in whole or in part after a pension law is enacted than attaches to exactly similar services rendered before the date of its passage. Even though a law creates a pensionable status based on services wholly rendered prior to its enactment and in such sense might be considered retrospective in operation it would not offend against section 11 of article II of the Constitution, for this section, a part of the Bill of Rights, is for the protection of the rights of the citizen and is not applicable to the State. In Graham Paper Co. v. Gehner, 332 Mo. 155, 59 S.W.2d 49.”

As in the case at bar, it was there argued that, even though the state had power to provide that pensions be paid to persons serving when the law was passed and to men who had theretofore acquired pensionable status on the ground that pensions will serve a public purpose, in no event could it be said a public purpose was there served, because it provided a pension to persons who already had served. We quote from that which the court said in that respect: “Neither of them had a pensionable status when their terms expired, for such a status cannot exist without a law to create it and there was no law in effect that created such a status for either of them when they retired from office. It is argued in support of the validity of the act, on the ground that it serves a public purpose as to those judges in office when the acts were passed, that it will operate subjectively upon them to induce them to retire from office before the infirmities of age deprive...