State Ex Rel. Ward v. Romero

• Decision Date: 23 March 1912
• Citation: 125 P. 617,17 N.M. 88
• Parties: STATE ex rel. WARDv.ROMERO, County Treasurer.
• Court: New Mexico Supreme Court

17 N.M. 88

125 P. 617

STATE ex rel. WARD

v.ROMERO, County Treasurer.

Supreme Court of New Mexico.

March 23, 1912.

Syllabus by the Court.

The office of district attorney, created by section 24 of article 6 of the Constitution of New Mexico, is a state office, and the incumbent is precluded by section 9 of article 20 from receiving to his own use any compensation, fees, allowance, or emoluments other than the salary provided by law.

The words “district officer” used in section 3 of article 20 of the Constitution refer to the district attorney and district judge, but the words were used to designate the geographical limits within which such officer performed the duties of his office, and did not refer to the nature and grade of the office.

Prior to the adoption of the Constitution by statute, the district attorney was made the law officer of the territory, and was required to represent the territory within his district in all cases, civil and criminal, and to give advice, when requested, to territorial officials. The fact that he may have performed his duties within a designated district did not make him a district officer.

Under the Constitution, the district attorney is a part of the judicial system of the state and is a quasi judicial officer.

An officer appointed or elected for a particular locality, whose duties are of a public or general nature, in the discharge of which the whole state is interested, is a state officer in an enlarged sense, and, where it appears that such officer has not been dealt with by the Legislature or the constitutional convention as a local officer, but as a state officer, the court should give effect to the intention and understanding of the framers of the Constitution.

A district attorney is an officer provided by the Constitution, whose salary is to be fixed by the Legislature, and who serves without compensation until a salary has been provided by law.

Section 4 of article 22 continues in force all laws of the territory, not inconsistent with the Constitution, as laws of the state. Held, that chapter 22, S. L. 1909, providing that the district attorney shall receive a stated sum of $500 per annum from the territory, and providing fees for the major part of his compensation, is inconsistent with the Constitution. Having prohibited such officer from receiving any fees or other emoluments of office, it was clearly not the intention that he should be confined to an annual salary of $500 per annum.

It is the duty of the court to interpret the various provisions of the Constitution in such a manner as will carry out and give effect to the spirit of the whole instrument.

Where the spirit and intent of the Constitution can be clearly ascertained, effect should be given to it, and the strict letter should not control, if the “letter” leads to incongruous results clearly not intended.

The salary of the district attorney, when fixed by the Legislature, may relate back to the time of his induction into office.

Appeal from District Court, San Miguel County; David J. Leahy, Judge.

Mandamus by the State on the relation of C. W. G. Ward against Eugenic Romero, treasurer of San Miguel County. From a judgment granting a peremptory writ, defendant appeals. Reversed, with instructions.

An officer appointed or elected for a particular locality, whose duties are of a public or general nature, in the discharge of which the whole state is interested, is a state officer in an enlarged sense, and where it appears that such officer has not been dealt with by the legislature or the constitutional convention, as a local officer, but as a state officer, the court should give effect to the intention and understanding of the framers of the constitution.

Charles W. G. Ward was and is the district attorney of the Fourth judicial district of the state of New Mexico. For the purpose of procuring a judicial determination of the question as to whether section 7, c. 22, of the Laws of New Mexico of 1909, providing for the payment to the district attorney of fees in certain cases, was abrogated by the Constitution of the state of New Mexico, the relator and appellee procured the allowance by the board of county commissioners of San Miguel County of a fee for services rendered. Payment of the warrant issued therefor was refused by the county treasurer, and proceedings in mandamus were instituted to compel said official to pay the same. The lower court found for the relator and ordered that a peremptory writ of mandamus issue, commanding said treasurer to pay said warrant. From such judgment, respondent prosecutes this appeal. The additional facts appear in the opinion.

Chas. W. G. Ward, of East Las Vegas, and A. B. McMillen, of Albuquerque, for appellant. Frank W. Clancy, Atty. Gen., for appellee.

ROBERTS, C. J. (after stating the facts as above).

The question involved in this appeal arises as the result of the transition of our form of government from territorial to state. Under Chapter 22, S. L. 1909, provision is made for the payment to the various district attorneys of the territory of fees as compensation for their services in addition to an annual salary of $500 per annum paid by the territory. Section 24 of article 6 of the Constitution of the state is as follows: “There shall be a district attorney for each judicial district who shall be learned in the law and who shall have been a resident of New Mexico for three years next prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as may be prescribed by law.” And section 9 of article 20 provides: “No officer of the state who receives a salary shall accept or receive to his own use any compensation, fees, allowance or emoluments for or on account of his office in any form whatever, except the salary provided by law.” And section 1, article 10, reads: “The Legislature shall at its first session classify the counties and fix salaries for all county officers which shall apply to those elected at the first election under this Constitution. And no county officer shall receive to his own use any fees or emoluments other than the annual salary provided by law, and all fees earned by any officer shall be by him collected and paid into the treasury of the county.”

A reading of the two sections last quoted will clearly demonstrate that, if a district attorney is either a state or a county official, he is not entitled to collect and retain to his own use any fees or emoluments of office. In the case of Territory ex rel. Delgado v. Romero, Treasurer, etc., 124 Pac. 649, decided at the present term of this court, we held that a county officer, under the section last quoted, was not entitled to collect and retain to his own use fees, under the statutes of the territory providing therefor. But no argument is necessary to demonstrate that a district attorney, under our Constitution, is not a county officer. He is elected by the voters of each judicial district, comprising from two to four counties, and there is no language used in the Constitution evincing any intention on the part of the constitutional convention to classify or designate a district attorney as a county official.

[1] What, then, is the nature of his office? That he is either a district or a state official is apparent. If the former, then he does not come within the prohibition of the Constitution, and there is no inhibition against his receiving fees as compensation instead of a salary. If the latter, then he is precluded from collecting and retaining fees or other emoluments of office, save “the salary provided by law.” The Supreme Court of Colorado in the case of Merwin v. Board of Commissioners, 29 Colo. 169, 67 Pac. 285, speaking through Mr. Justice Campbell, says: “A district attorney is not a county or precinct but a district officer.” But no reason is given whatever for the conclusion.

Counsel for appellee relies upon two provisions of the Constitution to support his contention that a district attorney is a district officer and not a state officer, viz.: Section 13 of article 5: “All district, county, precinct and municipal officers shall be residents of the political subdivisions for which they were elected or appointed.” And section 3 of article 20: “The terms 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”-asserting that by the sections just quoted the constitutional convention clearly intended to classify district attorneys and district judges as “district officers.” If the framers of the Constitution intended to create a separate class of officials to be known as district officers, and to relieve this class from the injunction against receiving fees for their services, we are bound to give effect to their intention.

[2] The Attorney General classifies judges of the district courts as “district officials,” and, if district attorneys are “district officers,” he is correct. It must be conceded that the Constitution, by the last section quoted, clearly refers to district attorneys and district judges when it uses the words “district officer” in speaking of the term of office. But did the constitutional convention, by the use of the words, intend thereby to designate a separate and distinct class of officials, or to bring clearly within the purview of said section officers which it had theretofore called “district attorney” and “district judge”? Was the language used intended merely as descriptive of the territorial limits of the official duty of the officer, or to place him in a separate and distinct class?

A warden of the penitentiary is a state officer unquestionably. Suppose that New Mexico were divided into two districts by a law which...