State ex rel. Swope v. Mechem

• Decision Date: 20 January 1954
• Docket Number: No. 5723,5723
• Citation: State ex rel. Swope v. Mechem, 265 P.2d 336, 58 N.M. 1, 1954 NMSC 11 (N.M. 1954)
• Parties: STATE ex rel. SWOPE et al. v. MECHEM, Governor.
• Court: New Mexico Supreme Court

Page 336

265 P.2d 336

58 N.M. 1

STATE ex rel. SWOPE et al. v.MECHEM, Governor.

No. 5723.

Supreme Court of New Mexico.

Jan. 20, 1954.

Joseph E. Roehl, Theo.E. Jones, William C. Briggs, Albuquerque, for petitioners.

Richard H. Robinson, Atty. Gen., Walter R. Kegel, Fred M. Standley, Asst. Attys.Gen., for respondent.

SEYMOUR, Justice.

The question for decision arises in an original proceeding in mandamus against respondent, the Governor of New Mexico.Petitioners are three district judges appointed by respondent or his predecessors; petitioners Swope and Harris were appointed pursuant to 1949 legislative act increasing by one the number of judges in the second and fifth judicial districts respectively, and petitioner Bonem ws appointed pursuant to a 1951statute providing for an additional judicial district and judge, i. e., the tenth judicial district.1941 Comp. Sec. 16-304.

All ran and were elected in the first general election following their appointment, Judges Swope and Harris in 1950 and Judge Bonem in 1952.The terms of all other district judges in the state expire December 31, 1954.Respondent has notified petitioners in writing that he will not include the offices held by them in the proclamation which he is required by law to issue on the first Monday of February, 1954, designating the offices for which candidates shall be nominated in the primaries.It is the contention of respondent that each petitioner holds his respective office for six years from the date of his election.Petitioners contend that their terms expire December 31, 1954 at the same time that the terms of all other district judges expire.

The controlling constitutional and statutory provisions are as follows:

N.M. Const., Art. 6, sec. 12:

'(Judicial districts--Judges, election and term.)--The state shall be divided into eight judicial districts and a judge shall be chosen for each district by the qualified electors thereof at the election for representatives in congress.The terms of office of the district judges shall be six years.'

N.M. Const., Art. 6, sec. 16:

'(Additional district judges--Redistricting.)--The legislature may increase the number of district judges in any judicial district, and they shall be elected as other district judges.At its first session after the publication of the census of the United States in the year nineteen hundred and twenty, and at the first session after each United States census thereafter, the legislature may rearrange the districts of the state, increase the number thereof, and make provision for a district judge for any additional district.'

N.M. Const. Art. 20, sec. 3:

'(Date terms of office begin.)--The term of office of every state, county or district officer, except those elected at the first election held under this constitution, and those elected to fill vacancies, shall commence on the first day of January next after his election.'

N.M. Const., Art. 20, sec. 4:

'(Vacancies.)--If a vacancy occur in the office of district attorney, judge of the Supreme or district court, or county commissioner, the governor shall fill such vacancy by appointment, and such appointee shall hold such office until the next general election.His successor shall be chosen at such election and shall hold his office until the expiration of the original term.'

As to Judges Swope and Harris, the significant portions of the 1949 acts, Laws 1949, ch. 31,N.M.S.A. 1941, Secs. 16-302,16-303;andLaws 1949, ch. 43,N.M.S.A. 1941, Secs. 16-303a to 16-303d, are identical in the following language:

'The additional district judge * * * shall be appointed by the governor of New Mexico upon the passage and approval of this act * * *, and he shall serve as one of the district judges of said district until the next general election, at which his successor shall be elected in the same manner as is provided by law for all other district judges of this state.'Sec. 2.

Section 2and3, ch. 75, Laws of 1941as amended bych. 177, Laws of 1951, applicable to Judge Bonem, differ from the laws applicable to the other petitioners in immaterial detail only.

It is admitted that upon the effective date of each legislative act there existed a vacancy in office and that each office was a proper subject to an exercise of the governor's power of appointment.

Petitioners contend that such appointments are authorized and controlled by Art. 20, sec. 4, N.M. Const., the last sentence of which reads:

'His successor shall be chosen at such election and shall hold his office until the expiration of the original term.'

It is argued that the words, 'original term,' must be given some meaning; that in this casethey can mean only a six-year term measured from the common commencement date of the terms of all other district judges; this 'intention' on the part of the framers of the Constitution is deduced from the fact that the Constitution provided staggered terms for Supreme Court judges but was silent in that regard as to district judges.The eight original district judges, having terms of six years and being chosen 'at the election for representatives in congress,' of necessity commenced and ended their terms at the same time; and further, a vacancy by death resignation or otherwise of an incumbent, by virtue of Art. 20, sec. 4 of Constitution, resulted in the term of the appointee, or his elected successor, ending contemporaneously with the terms of all other district judges.

From the foregoing, petitioners reach their conclusion as to the intent of the authors of the Constitution; the fact that neither Art. 6, sec. 12 of the Constitution providing for the eight original judges, nor Art. 6, sec. 16 of the Constitution providing for an increase in the number of judges by the legislature, asserted such intention in words, is discounted on the theory that such words would be surplusage.

On the other hand, respondent contends that Art. 20, sec. 4 of the Constitution'(Vacancies.)' applies only to situations in which an office has been occupied by an incumbent; that Art. 6, sec. 16 of the Consitution 'under the 'necessary and proper' theory of implied power' gave the legislature authority to provide for the filling of the office of an additional district judge in the interim between the effective date of the act and the date of the next election for representatives in congress; that the legislature exercised the statutory authority by designating the governor as the appointing power; that the additional provision for the election of a successor at the next general election 'in the same manner as is provided by law for all other district judges of this state,' confines the answer to our question exclusively to Art. 6, sec. 12 of the Constitution; that this section of the Constitution has two factors only: (1) the time at which district judges shall be elected, that is, at an election for representatives in congress; and (2) the term, that is, six years.Petitioners having been elected at a general election pursuant to proclamation and ballot at the primary specifying the six-year term respondent reaches a conclusion diametrically opposed to petitioners, namely, that petitioners were elected for a six-year term.

This is a case of first impression in this jurisdiction; there are a reasonable number of cases in other jurisdictions on related questions divided in their support between the two theories here advanced; however, none of these jurisdictions have constitutional provisions or statutes identical to ours; therefore, their assistance to us is limited and the primary source of authority for this decision must come from the exact wording of our own Constitution and legislative acts.The most enlightening of these cases are: For petitioners: State ex rel. Smith v. Askew, 1886, 48 Ark. 82, 2 S.W. 349;State ex inf. Hadley v. Burkhead, 1905, 187 Mo. 14, 85 S.W. 901;State ex inf. Major v. Amick, 1912, 247 Mo. 271, 152 S.W. 591;State v. Ware, 1886, 13 Or. 380, 10 P. 885;State ex rel. Hubbard v. Gorin, 1871, 6 Nev. 276;andSmith v. Halfacre, 1842, 6 How., Miss., 582.For respondent: Ex parte Meredith, 1880, 33 Grat., Va., 119, 36 Am.Rep. 771 and cases cited therein;Brewer v. Davis, 1848, 9 Hump., Tenn., 208, 49 Am.Dec. 706;Clark v. State, 1912, 177 Ala. 188, 59 So. 259;andState ex rel. Whitney v. Johns, 1869, 3 Or. 533.

There is also available a 1918 Attorney General's Opinion, No. 2088, which reached the conclusion that the additional district judge, authorized for the fifth judicial district by Ch. 34 of the Laws of 1913, who was first appointed and then elected at the next general election in 1914, was elected not for a six-year term but for a term expiring concurrently with the rest of the district judges of the state.This opinion was based chiefly upon the above cited authorities for petitioners.

The question presents itself to us in this way: First, it is admitted that a vacancy exists; immediately the query arises: Where is the power of appointment which may be or shall be exercised to fill the vacancy?That power of appointment does not necessarily belong to the executive or to any other branch of government.With us, the people are the source of government and the power of selecting persons for office belongs to them.Therefore, the power of appointment belongs where the people have chosen to place it by their Constitution or laws.42 Am.Jur., sec. 92, p. 950;Mechem on Public Officers, sec. 103, p. 42.The admitted vacancy in this case is in the office of a district judge.Turning to the Constitution, Art. 20, sec. 4, states unequivocally:

'If a vacancy occur in the office of * * * judge of the * * * district court, * * * the governor shall fill such vacancy by appointment, and such appointee shall hold such office until the next general election.'(Emphasis ours.)

Respondent argues that this section of the Constitution applies only in those cases where there was an incumbent in office.We cannot accept...