On the twenty-first day of August, A. D. 1899, the board of education of the city of Las Vegas of the Territory of New Mexico, defendant in error herein, filed a petition for a writ of mandamus in the, district court of San Miguel county, seeking thereby to compel Margarito Romero, treasurer of the county of San Miguel, and plaintiff in error herein, to place to the credit of the school district of the city of Las Vegas, of the Territory of New Mexico, certain moneys collected by him for gaming licenses from persons carrying on gaming in the school district of the city of Lais Vegas. An alternative writ of mandamus was awarded in the cause, directing Margarito Romero, the plaintiff in error herein, to credit the moneys described in the petition for the writ of mandamus to the account of the district of the city of Las Vegas, and to pay the money over to the treasurer of the board of education of the city of Las Vegas when demanded. For answer and return to the alternative writ and the petition ih said cause, the plaintiff in error demurred, among other things, upon the ground that under the laws of the Territory of New Mexico money collected upon account of gaming licenses is thp property of the general school fund of the county wherein it is collected, and does not belong to the school district wherein it is collected.
Upon a hearing in the cause the demurrer filed therein was overruled, and a peremptory writ of mandamus was awarded in accordance with the prayer of the petition. The plaintiff in error, Margarito Romero, sued out a writ of error in this court to the district court of San Miguel county, and assigned the following as error in the record and proceedings in said cause, to wit:
i. The district court erred in not holding that the petition and alternative writ of mandamus issued in said cause and neither of them stated no cause of action. 2. The district court erred in not holding that the petition and the matters and things therein stated were not sufficient in law to entitle the defendant in error to the relief prayed for in said petition. 3. The district court erred in not holding that it was not the duty of said Margarito Romero, treasurer, etc., to cover the moneys mentioned and described in said petition and alternative writ into the school funds of said county of San Miguel to be credited to said district of East Las Vegas. 4. The said district court erred in awarding a peremptory writ commanding said Margarito Romero, etc., to cover the moneys mentioned and described in the petition and alternative writ into the school fund of San Miguel county, to be credited to the school fund of East Las Vegas.
The pleadings present the inquiry: What is the legislative will in regard to the distribution of revenue derived from gaming licenses. The answer must be found in the statutory enactments relating to our common school system, or relating to the funds established for its maintenance, and in whatever judicial construction may heretofore have been given those acts.
soHooiiiaws: repeal of act of i891-On February 12, 1891, an act was passed entitled “An act establishing common schools in the Territory of New Mexico and creating the office of Superintendent of Public Instruction.” This act, together with the subsequent act, amendatory thereof, passed by the same Leg-islature on February 26, 1891, was manifestly . intended to cover the entire subject matter of the establishment and maintenance of public schools, and supplanted all antecedent legislation on that subject. Thereby, various school funds were created and provision was made for their distribution. Gaming licenses were designated by section 35 of the act of February 12, 1891, as an item of one of the temporary funds, which funds were by said section made payable into the county treasury to the account of the several school districts wherein such sums are collected. Revenues available for school purposes, other than those designated as temporary funds, were distributable under section 13 of that act to the several districts within the county, in proportion to the number of children of school age residing in each. This court held in Board of Education of East Las Vegas v. ■Tafoya, Treasurer, 6 N. M. 292, that under section 35 of chapter 25 of the Laws of 1891, revenue derived from liquor licenses (which licenses were designated together with gaming and other licenses in the same subdivision fifth of said section 35, as parts of the temporary funds) belonged to the district wherein it was collected. In reaching this conclusion this court there inquired into the intention of the Legislature in enacting chapter 9 of the Laws of 1891. Appellant in that case contended that section 3 of said chapter 9 provided that the revenue derivable from liquor licenses belonged to the general county school fund, and should be apportioned and distributed to all of the school districts in the county. But this court, speaking by Justice McFee, in this connection, say: “It will be observed that chapter 9 is entitled ‘An act licensing the sale of intoxicating liquors and regulating the same.’ The entire chapter is devoted to the subject of license, having no reference by title to school purposes. It provides a graduated system of license, ranging in amounts from $100 to $400, and erects the legal machinery necessary to carry the system into successful operation. The legislative mind was, therefore, at the time of the passage of what is known as the ‘high license law,’ absorbed in the perfection of the law licensing and regulating the sale of intoxicating liquors aside from all other subjects. Section 3 is the only section of the entire act that refers to schools or school funds, and that section is couched in very general terms. In adopting the license system, a large fund would necessarily be derived from it, which fund must be devoted to some proper purpose, and must have a custodian. The Legislature determines that this fund shall be devoted to school purposes and, while, the language used is that it is to be covered into the general school fund of the county, it still remains apparent that this language is used in a general sense and substantially says that the license fund shall be devoted to school purposes. But a single section is used for this purpose, and that section is one of accumulation and not of distribution: Under this section the license fund is placed in the hands of the county treasurer of the respective counties, without any provisions whatever for its disbursement, and from this fact,, and the further fact of which we take judicial knowledge, that a few days later the same Legislature passed an act for the disbursement of school funds, we have a right to presume that the Legislature had in mind the subsequent act of distribution, and therefore remitted the whole subject of the distribution of the license and other school funds to the further act of the Legislature.”
Were there no legislation, subsequent to the general school law of 1891, affecting the distribution of revenue derived from licenses imposed upon the gaming tables or games of chance, we should be compelled to conclude as to such licenses, as this court concluded in the case cited in construing the liquor license act, that by virtue of section 35 of that act and of section 27 of the Session Laws of 1887, entitled “An act repealing certain sections of the gaming law and providing a substitue therefor,” together with chapter 30 of the Laws of 1893, amending chapter 27 of said Laws of 1887, increasing the license and making minor regulations concerning gaming, such licenses belonged to the school district in which they were collected. The language designating the general use to be made of revenue derived under the liquor license act, which was construed in the case of Board of Education v. Tafoya, supra, is “upon the payment of said license fee into the hands of the county treasurer to be covered into the general school fund of the county,” and the language designating the use to be made of revenue derived from the gaming license law of 1887, and its amendment of February 17, 1893, here under consideration, is, in the former, “the license when collected shall be paid into the school fund of the county,” and, in the latter, “said license fee shall be paid into the hands of the county treasurer to be covered into the school funds of the county.” This identical language used in a similar connection having been heretofore judicially construed to have a certain meaning, we must presume that the Legislature by the use of the same language in like connection subsequent to such judicial construction intended it should have no different meaning.
S from1- rgaSin| tkinment o?°r" Therefore, the question arises: ñas there been any subsequent legislation affecting the distribution of licenses imposed upon gaming? This court has decided in Board of Education v. Tafoya, supra, that chapter 25 of the Laws of 1891, itself provided f°r ^-ie distribution of all available funds for the support of the school system, and that the revenue derivable from liquor licenses was particularly distributable under section 35 of said act; analogously, revenue derived from gaming licenses was at that time distributable in like manner. However, on February 23, 1893, it was enacted (section 1305, C. L. of 1897) “that section 35 of chapter 25 of the Session Laws of 1891, be amended to read as follows:” This enactment has the effect of repealing all of section 35 of chapter 25 of the Laws of 1891, and makes no mention whatever of revenue derived from, or of the distribution of revenue derived from gaming licenses. The Legislature in effect thereby declared to be repealed the provision of law under which all money arising from gaming tables or games of chance was payable into the county treasury to the account of the several school districts wherein such sums were collected. We conclude in considering this displaced legislation that the Legislature merely intended to change the mode of distribution of revenue derived from gaming licenses, from a particular to a general one. Section 13 of the General School Law of 1891 (section 1526, C. L. of 1897) provides for “Apportionment of the revenue derived from- a Territorial tax levy for school purposes, together with all the county school fund for the same purpose to the several districts within the county in proportion to the number of children residing in each, over five and under twenty-one years of age.” Having found that the fund accumulated by virtue of the gaming license law was to be devoted to school purposes, and no particular mode for its distribution being by law now provided, we think it very clear that the fund so accumulated is subject to the general distribution by apportionment, as provided by section 13 of the act of 1891, together with all the other county school funds not otherwise particularly distributed.
It has been urged upon the court’ that the school districts in which these licenses are collected, and where gambling is carried on under legislative sanction, should receive all possible benefit from the revenue derived from such source in order to counteract, so far as possible, the evil of having gaming carried on within their limits; but these are matters which can be urged with propriety only upon the legislative department of the government.
We conclude that the district court erred in not sustaining the demurrer to the petition. The judgment is therefore reversed and the cause remanded with directions to the court below to sustain the demurrer and to dismiss the petition.
Parker and McFie, JJ., concur.