Taos County Bd. of Educ. v. Sedillo, 4507.

• Decision Date: 09 April 1940
• Docket Number: No. 4507.,4507.
• Citation: 44 N.M. 300,101 P.2d 1027
• Parties: TAOS COUNTY BOARD OF EDUCATION et al.v.SEDILLO, Attorney General.
• Court: New Mexico Supreme Court

44 N.M. 300

101 P.2d 1027

TAOS COUNTY BOARD OF EDUCATION et al.

v.SEDILLO, Attorney General.

No. 4507.

Supreme Court of New Mexico.

April 9, 1940.

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

Action by the Taos County Board of Education and others against Filo M. Sedillo, Attorney General, for a declaratory judgment as to the merits of defendant's refusal to approve issuance of bonds for the purpose of erecting and furnishing school buildings in certain school districts. Judgment for plaintiffs, and defendant appeals.

Affirmed.

The attorney general's duties under statute regulating proceedings for issuance of school district bonds to check and approve or reject such proceedings, according to whether he finds compliance or noncompliance with statutory requirements, are ministerial and subject to control by mandamus. Comp.St. 1929, §§ 120-714, 120-715.

File M. Sedillo, Atty. Gen., and A. M. Fernandez, Asst. Atty. Gen., for appellant.

Floyd W. Beutler, of Taos, for appellees.

SADLER, Justice.

This is a suit for declaratory judgment filed by the Board of Education of Taos County against Filo M. Sedillo, as Attorney General of the State of New Mexico, to test the merits of his refusal to approve proceedings authorizing bond issues for the purpose of erecting and furnishing school buildings in each of four school districts in Taos County, namely, Rural School Districts Numbered 6, 7, 12 and 13. In conformity with the requirements of 1929 Comp., §§ 120-713 and 120-715, both inclusive, a transcript in triplicate of the proceedings in each district was duly prepared by said board of education containing all matters required by § 120-714 including the certificate in the form directed by § 120-713 of no action pending and of no judgment invalidating the right of the county board of education or the respective school districts to issue said bonds.

The transcripts were duly presented to the Attorney General for his examination and approval in order to mature the right to sell the bonds pursuant to the provisions of § 120-715 without the necessity of establishing their validity by court action. The Attorney General declined approval for reasons hereinafter shown. Whereupon the county board of education instituted this suit before the district court of Santa Fe County to have the rights of the parties upon the matters in controversy declared by decree pursuant to the provisions of L.1935, c. 143, authorizing declaratory judgments under the conditions here shown.

In the petition filed the county board of education claimed the Attorney General had withheld approval of the proceedings because of failure to publish in Spanish, in conformity with the requirements of L.1931, c. 150, § 2 (§ 113-103a, N.M. Supl.1938), the resolution mentioned in 1929 Comp., § 120-703, which by § 120-704 is ordered to be published once in a newspaper at least fifteen days before the date set for the election. It is admitted that this resolution was properly published in the English language.

In his answer the Attorney General, agreeing that he disapproved the proposed bond issues in part upon the ground already mentioned, alleged that he also rested his disapproval upon the fact that the petition to initiate the right to issue bonds was not filed with the board of county commissioners as required by 1929 Comp., § 120-702, and that all acts and proceedings required to be done and performed by the board of county commissioners under §§ 120-702 to 120-714, prior to the election itself, were done and performed instead by the board of education of said county. He prayed that the court by its decree determine the validity of the proceedings in view of each of the grounds put forth by him as a reason for his refusal to attach a certificate of approval to said transcripts.

Following the filing of this answer the board of education moved for judgment on the pleadings. Counsel for the respective parties appeared and argued the motion. It was sustained by the trial court and judgment was entered declaring that the defects relied upon by the Attorney General for withholding approval were irregularities within the curative protection of 1929 Comp., §§ 120-711 and 120-712, and that the election and proceedings in each of said school districts were valid and binding, giving authority unto each district to sell its bonds in the amount and for the purpose authorized. The Attorney General prosecutes this appeal for the revision and correction of the judgment so entered against him.

As appellant, he now concedes that failure to publish in the Spanish language the resolution calling the election as required by § 120-704 is cured by the provisions of § 120-711, authorizing any person or corporation at any time prior to five days preceding the day set for an election, but not afterwards, to attack the validity of the petition asking for the election or the resolution approving said petition, or both, by action in the district court of the county affected, no such attack having been made. White v. Curry County Board of Education, 36 N.M. 177, 10 P.2d 590; White v. Board of Education of Silver City, 42 N.M. 94, 75 P.2d 712; Board of Education v. Patton, 43 N.M. 107, 86 P.2d 277, are cited as justification for this concession. It is insisted, nevertheless, that the determination of the sufficiency of the petition, the adoption of the resolution calling the election and publication of said resolution and of the notice of election, by the board of education of the county rather than by its board of county commissioners, as required by the statutory provisions then in effect and governing, is fatal. This contention presents the most serious challenge to the validity of the proceedings involved. The Attorney General is content to rest the security of his position upon it. It is agreed that no suit was instituted by any person or corporation attacking the validity of the proceedings within the periods limited by the sections of the School Code presently to be mentioned.

The authorities cited above appraising the effect of the limitation provisions contained in §§ 120-711 and 120-712 afford ample warrant for the concession made by the Attorney General respecting the failure to publish in the Spanish language the resolution calling the election. As pointed out, the notice of election required by § 120-705 was duly published in both English and Spanish, giving the date of election, number of the school district, the question to be voted upon, amount of the bond issue sought and the purpose for which bonds were to be issued. Certainly, under the holding in the cases above cited this was an irregularity only and well within the curative effect of § 120-711, if, indeed, the complaint fairly may be taken as alleging facts calling for publication in Spanish.

Does a like conclusion follow when we consider that prior to June 10, 1939, effective date of the amendment of § 120-702 by L.1939, c. 183, the county board of education rather than the board of county commissioners performed all duties imposed upon the latter as the law then existed? This is the precise question with which we are confronted. In view of the same authorities cited supra interpreting 1929 Comp., §§ 120-711 and 120-712, and declaring the purpose of these provisions, and particularly in view of the test applied in White v. Board of Education of Silver City, supra, and later approved in Board of Education v. Patton, supra, we are compelled to give an affirmative answer to this inquiry. How those handling the election in these school districts made the mistake of substituting the county board of education for the board of county commissioners is understandable, even if otherwise not excusable. The 1939 legislature by L.1939, c. 183, made the same substitution. Unfortunately, however, for the regularity of the proceedings, the legislature did not attach the emergency clause to the amendatory act. The amendment, therefore, was not in effect, as supposed, at the time the petition was filed nor when the resolution calling the election was adopted. The petitioners for the election, apparently knowing of the amendment, erroneously assumed that it carried the emergency clause.

But by grace of the law this blunder is not now fatal because the validity of the proceedings remained unchallenged on account of it until the time for challenge had passed under the provisions of 1929 Comp., §§ 120-711 and 120-712. In Board of Education v. Patton, 43 N.M. 107, 86 P.2d 277, 278, we had the following to say touching the effect of these sections of the School Code, to-wit: “From the foregoing it appears that the rule adopted with reference to this statute is that mere regulatory provisions of the exercise of the right or power to borrow money and which do not render the proceedings a nullity are controlled by the limitation statute quoted above.”

In White v. Board of Education of Silver City, supra [42 N.M. 94, 75 P.2d 718], quoting approvingly at some length from Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253, we rather strongly indicated that the statement there made of matters foreclosed by the familiar statutory suit to validate bond issues reflected our view of matters foreclosed by the limitation provisions of our School Code above mentioned. It was held in that case that any matter or thing affecting the power or authority of the several political subdivisions mentioned to issue bonds, or the regularity or legality of their issue, “in so far as those matters or things could be lawfully prescribed, regulated, limited, or dispensed with by the Legislature in the first instance, or subsequently cured by a validating act, may be put in repose by a decree rendered pursuant” to the provisions of the statute authorizing validation by suit. Such is the effect of the language quoted last above from Board of Education v. Patton, supra, as related to these sections...