State v. Southern Pac. Co.

ON MOTION FOR REHEARING [6] Appellant has filed a motion for rehearing, based upon the propositions that the levies of taxes involved are contrary to the provisions of chapter 140, Laws 1921, which place a limitation of five mills upon all county levies except levies for the payment of the public debt or interest thereon, etc., and that the provisions of section 17, chapter 48, Laws 1921, as construed by this court, are contrary to the provisions of section 10 of article 9 of the state Constitution, which provide that "no county shall borrow money except for the purpose of erecting necessary public buildings or constructing or repairing public roads and bridges, and in such cases only after the proposition to create such debt shall have been submitted to the qualified electors of the county who paid a property tax therein during the preceding year," etc.

Appellant, in its brief in support of the motion, says that it may be contended that the case of Martinez v. Gallegos, 28 N.M. 170, 210 P. 575, is a complete answer to the latter contention. We think it is. In that case, we quoted with approval from the opinion in State v. Saint et al., 28 N.M. 165, 210 P. 573, 574, wherein the statement is made that the constitutional power to create new counties include the power to provide: *Page 316

"For raising the funds for current expenses, and perhaps other provisions to enable the county to take its proper place among other counties in the state, and to perform its proper governmental and administrative duties, and in fact that it includes provisions for everything necessary and proper to enable the county to function as a complete municipal subdivision of the state."

We held that public buildings, such as a court house and jail, were such a necessity. In the Saint Case, supra, we held that the establishment of a county high school is not necessary to the orderly administration of the usual governmental and administrative functions of a county. When we are called upon to decide whether the expenditure for a particular county purpose is necessary to the proper and orderly functioning of a new county, we do not hesitate to say that it was as necessary to the new county of Harding that it have the funds provided for in section 17 of the act to meet current expenses as it was to have a court house and jail; probably more so.

Appellant contends that, while Martinez v. Gallegos, supra, is the settled law of this jurisdiction, yet it is not applicable to the facts in the case at bar, because in the Martinez Case the court was dealing with a legislative grant of power to borrow money for a purpose permitted by the provisions of section 10 of article 9 of the Constitution, to wit, for the purpose of "erecting necessary public buildings," while here we are dealing with a borrowing prohibited by said section. We see no difference in principle. If said section 10 of the Constitution must yield in one respect to the constitutional power of the Legislature to create new counties, we are unable to see how said section is controlling at all upon the Legislature in its exercise of its power to create new counties, and, in doing so, to authorize such new county to incur financial obligations, provided the purpose for which the debt is incurred or the funds raised is necessary in order to enable the new county to function as a complete municipal subdivision of the state.

[7] In view of the foregoing, appellant's contention that the levies exceed the limitations set forth in chapter 140, Laws 1921, is not sound, because said limitations do not apply to levies "for the payment of the public debt or interest thereon." *Page 317

The motion for rehearing is overruled; and it is so ordered.

WATSON and PARKER, JJ., concur.

CATRON and SIMMS, JJ., did not participate.