I concur in all that Mr. Justice SADLER has said in his dissenting opinion, the logic of which is so convincing that I can see no escape from his conclusions.
The majority opinion should have stated that special order No. 17 provided for the calling out of two militiamen for six months, instead of "calling to active duty a portion of the National Guard." It is in that regard misleading.
It was frankly admitted by relators upon the oral argument that the whole object of the order was to convert the Santa Fe armory to permanently house the equipment of that unit of the National Guard after it is converted into a regiment of anti-aircraft artillery. It is sought to do so by virtue of Sec. 93-137 N.M.Comp.Sts. Ann. 1929, which provides for the payment of salaries etc., of officers and enlisted men when called out upon "special duty", and Secs. 93-172 and 93-174 for remuneration and "quartering", etc.
No member of the court doubts the good intention of the Governor and his Adjutant General, nor the fact that the ends are desirable; but do the ends contemplated justify the means by which it is sought to spend out of the public treasury, without appropriation by the legislature, the sum of $21,000 for remodeling the Santa Fe armory? It was the policy of the makers of the Constitution to prohibit the expenditures of public funds without an appropriation by the legislature, except in cases of greatest emergency specifically excepted in the Constitution.
The legislature is "the State" in the disposition of state funds, and is made so, not necessarily upon the theory that the *Page 188 Governor would misuse the authority if delegated to him, but that the people of the state, through their representatives, should control the expenditure of its funds.
If we assume that the Santa Fe armory can be remodeled as contemplated by the expedient of calling out two men for a period of six months and that the remodeling of the armory is "necessary expenses incurred in quartering, caring for", etc., of such two men on special duty, then the Governor at his will is authorized to spend a hundred thousand dollars for such purpose without an appropriation by the legislature, and may extend the remodeling program to each National Guard unit in the state. That the statute had reference to temporary quartering of the national guardsmen while on active duty seems certain to me.
The provision of the statutes for the payment for quartering troops while on duty has reference to "quartering" the specific troops called out while on temporary duty only, not for building or remodeling quarters for the housing of a National Guard unit and its equipment, permanently.
The proceeding should be dismissed.