State ex rel. Shepard v. Mechem

• Decision Date: 12 December 1952
• Docket Number: No. 5593,5593
• Citation: 56 N.M. 762,1952 NMSC 105,250 P.2d 897
• Parties: STATE ex rel. SHEPARD v. MECHEM et al.
• Court: New Mexico Supreme Court

Page 897

250 P.2d 897

56 N.M. 762

STATE ex rel. SHEPARD v. MECHEM et al.

No. 5593.

Supreme Court of New Mexico.

Dec. 12, 1952.

George Graham, C. C. McCulloh and W. R. Kegel, Santa Fe, for relator.

Joe L. Martinez, Atty. Gen., James B. Cooney and Frank B. Zinn, Asst. Attys. Gen., for respondents.

McGHEE, Justice.

This is an action in mandamus instituted on the relation of the Commissioner of Public Lands, who is charged by law with the care and administration of the public lands of New Mexico, to prevent alleged illegal diversions of trust funds produced by lands granted by the Congress of the United States for specific purposes, and to compel the restoration of such moneys to the proper funds.

Chapter 181, Laws of 1951, provided that not to exceed five per centum of the amount budgeted for the operation of offices and governmental departments operating on ear marked funds should be transferred into the general fund to help defray the general expenses of government. The Appropriation Act, Ch. 227, Laws of 1951, then appropriated $19,300, or five percent of the amount appropriated by it for the operating expenses of the state land commissioner to the general fund for the 40th and 41st fiscal years, respectively.

All of the money appropriated for the operation of the land office was derived from lands granted by the United States to the State of New Mexico by the Ferguson Act, Act of June 21, 1898, 30 Stat. 484, and the Enabling Act, Act of June 20, 1910, 36 Stat. 557, for nineteen purposes, the majority of which were for the benefit of specific educational and penal institutions, and moneys derived therefrom were required to be kept in separate funds until invested in safe securities.

Acting upon orders of the state board of finance and the state auditor, the state treasurer transferred the amounts diverted, $19,300 for each of the fiscal years above stated, to the general fund, where they have been intermingled and become a part of the total sum in such fund. Regular expenses of government, chargeable from such general fund, have been paid therefrom.

The respondents question the right of the relator to prosecute this mandamus action, involving as it does the constitutionality of a statute, and also say the alternative writ did not allege any law or statute enjoining or requiring any action or duty by respondents which they have not taken or performed. They further say approximately three-fourths of the money has been spent and cannot be restored, and lastly assert such sums are proper to be charged against the various trusts as a contribution to the expenses of housing those administering the trust and for general governmental protection. In their brief they say only the Attorney General of the United States may maintain an action to enforce the terms of the trust.

The trust provisions and limitations applicable to the lands granted read in part as follows:

'That it is hereby declared that all lands hereby granted, including those which, having been heretofore granted to the said Territory, are hereby expressly transferred and confirmed to the said State, shall be by the said State held in trust, to be disposed of in whole or in part only in manner as herein provided and for the several objects specified in the respective granting and confirmatory provisions, and that the natural products and money proceeds of any of said lands shall be subject to the same trusts as the lands producing the same.

'Disposition of any of said lands, or of any money or thing of value directly or indirectly derived therefrom, for any object other than that for which such particular lands, or the lands from which such money or thing of value shall have been derived, were granted or confirmed, or in any manner contrary to the provisions of this Act, shall be deemed a breach of trust.

* * *

* * *

'A separate fund shall be established for each of the several objects for which the said grants are hereby made or confirmed, and whenever any moneys shall be in any manner derived from any of said land the same shall be deposited by the state treasurer in the fund corresponding to the grant under which the particular land producing such moneys were by this Act conveyed or confirmed. No moneys shall ever be taken from one fund for deposit in any other, or for any object other than that for which the land producing the same was granted or confirmed. The state treasurer shall keep all such moneys invested in safe interest-bearing securities, which securities shall be approved by the governor and secretary of state of said proposed State, and shall at all times be under a good and sufficient bond or bonds conditioned for the faithful performance of his duties in regard thereto as defined by this Act and the laws of the State not in conflict herewith.' Sec. 10, Enabling Act, supra.

By sections 9 and 10 of Article 21 of our Constitution we accepted the grants of land with their trust provisions and limitations in the following language:

'This state and its people consent to all and singular the provisions of the said act of congress, approved June twentieth, nineteen hundred and ten, concerning the lands by said act granted or confirmed to this state, the terms and conditions upon which said grants and confirmations were made and the and manner of enforcing such terms and conditions, all in every respect and particular as in said act provided.' Sec. 9, Art. 21, N.M.Const.

'This ordinance is irrevocable without the consent of the United States and the people of this state, and no change or abrogation of this ordinance, in whole or in part, shall be made by any constitutional amendment without the consent of congress.' Sec. 10, Art. 21, N.M.Const.

The claim of insufficiency in the allegations of the alternative writ is clearly not well taken, in that the terms and conditions on which the lands were granted under the Enabling Act and our acceptance of them by the foregoing constitutional provisions are set out in the alternative writ. The point does not merit further mention.

Our jurisdiction in mandamus is granted by Article 6, Section 3 of our Constitution, which provides in part as follows:

'The Supreme Court shall have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions, and shall have a superintending control over all inferior courts; it shall also have power to issue writs of mandamus, error, prohibition, habeas corpus, certiorari, injunction and all other writs necessary or proper for the complete exercise of its jurisdiction and to hear and determine the same. * * *'

It is true there is some authority that the constitutionality of a legislative act will not be determined in an action of mandamus, but this is a minority rule. The majority rule is stated in 34 Am.Jur. (Mandamus) Sec. 82, as follows:

'The question of constitutionality is frequently interposed by a petitioner or relator in mandamus where he claims that a statute or ordinance which, if valid, would excuse the respondent from performing the duty or act in question is invalid. There seems to be no reason why the constitutionality of the act thus relied on may not be raised in such manner and most of the courts have taken this view. They have entertained questions thus interposed by the relator as to the constitutionality of statutes relating to such matters as the apportionment of the state into senatorial and assembly districts; municipal boundaries or territory; names of counties; fiduciary bonds; municipal debts, bonds, and taxation; construction of buildings; salaries of judges; terms of office; and other matters. * * *'

See also the annotation on this subject in 16 L.R.A.,N.S., 266, where the annotator states:

'* * * the right of a relator to question, by a mandamus proceeding, the constitutionality of a statute, is very generally recognized, subject, however, to the limitation that usually applies to mandamus proceedings, that mandamus is a discretionary writ and may be refused by the court in the exercise of its discretion. This limitation necessarily leads to some conflict among the decisions, which, however, is more seeming than real, and is generally based on the right of the court to exercise its discretion, rather than on a denial of the right to the relator to question by mandamus the constitutionality of a statute.'

The annotator then reviews the decisions and in commenting on the three cases squarely deciding against the right to question the constitutionality of a statute in a mandamus proceedings, says, at p. 270:

'The doctrine appears to confuse the duty of the court with the duty of the officers or board made respondents to such a proceeding. If the act is unconstitutional, it is not a defense or justification to a publice officer in the performance or non-performance of the duties of his office. While perhaps he ought not to be required to determine, at his peril, the constitutionality of a statute, and should obey the terms of the same until its constitutionality has been determined by a court of competent jurisdiction, and he undoubtedly has the right to obey and is justified in obeying the requirements of, or he may refuse to do an act in violation of, a statute not yet adjudicated unconstitutional, rather than determine the question himself, yet that is the question presented to the court by a mandamus proceeding to compel the doing or refraining from doing, by an officer or board, of some act violating a statute alleged to be unconstitutional. This is not requiring the board to pass upon the constitutionality of the statute, but is placing the burden, where it rightfully belongs, upon a court of competent jurisdiction.'

In State v. Marron, 1913, 18 N.M. 426, 137 P. 845, 50 L.R.A.,N.S., 274, the state treasurer was mandamused to compel the investment of the permanent school funds in state highway debentures. The writ was denied because it was not broad enough, but we held that...