Territory ex rel. Curran v. Gutierrez

POPE, J.

(concurring). — I concur in the judgment of reversal upon the ground that the acts of the Legislature set up in the return are void under the provisions of the Springer Act prohibiting special legislation regulating county affairs. Any presumption, in favor of the legislative action, that the act in question was necessarily incidental to the creation of the new county of Sandoval and thus by the act of Congress of July 19, 1888, excepted from the operation of'the Springer Act, is in my judgment sufficiently disposed of by the following facts:

The act creating the county of Sandoval did not take effect until April 14, 1903. Notwithstanding this the persons here proceeded against were constituted commissioners of the county of Bernalillo on March 12, 1903, over a month before the new county came into being; they were required to qualify not later than April 5,1903, over a week before that date; they were required to elect an assessor and a probate judge for Bernalillo county at least four days before the new county existed. The character of the usurpation consequent upon these facts may be inferred from the fact apparent in the record that the present respondents went into office the very next day after the Legislature acted, and over a month before the new county existed. Legislation which brings about such an invasion of the rights of a single community, to regulate the personnel of its most important local governing board; is in my judgment, violative of the congressional guarantee against special legislation interfering with county affairs.

Justice Baker, by virtue of section 884, Compiled Laws of 1897, files his reasons for his decision in the district court, which can be best done by quoting his opinion, filed in this cause, in the district court as follows :

“In the district court, Bernalillo county, Territory of New Mexico.
“Territory of New Mexico ex rel. Thomas J. Curran et al., Thomas C. Gutierrez and Severo Sanchez.
“This is an action based upon an information by the solicitor-general of the Territory of New Mexico, against Tomas C. Gutierrez and Severo Sanchez to require the respondents to show by what warrant or authority they hold the offices of members of the board of county commissioners of Bernalillo county.
“The respondents for answer to the information say that they hold said offices by virtue of an act of the Legislature, approved March 10, 1903, which said act is in part as follows:
“ ‘Section 3. That T. C. Gutierrez, to fill the unexpired term of the second district, and Severo Sanchez be and they hereby are appointed and constitued county commissioners for the county of Bernalillo, as the same is constituted after the creation of Sandoval county, and the said T. O. Gutierrez and Severo Sanchez shall qualify as said county commissioners on or before the fifth day of April, 1903.’
“To said answer the solicitor-general files a general demurrer. The demurrer raises the question of the validity of said act. If said act is invalid the solicitor-general’s demurrer must be sustained, and the respondents adjudged to be holding said offices without authority or warrant of law, and must be ousted. If said act is valid the demurrer must be overruled, and the information dismissed.
“Congress, in establishing the Territorial government of New Mexico-, divided its powers, as is usual in republican forms of government, into- the executive, the legislative and the judicial. The executive power is vested in the Governor of the Territory. Section 3, organic act, approved September 30, 1850. The legislative power of the Territory is vested in the Governor and the legislative assembly. Section 5, organic act, supra. The ‘judicial power of the territory, was vested in a Supreme Co-urt, district courts, probate courts, and in justices of the peace.’ Section 10, organic act. Section 8 of said organic act provides that “all township, district and county officers .... shall be appointed or elected as the case may be in such manner as shall be provided by the governor and legislative assembly of the Territory of New Mexico.’ This section was amended on September 9, 1850 (section 1857, R. S. U. S. 1873), and so far as it relates to the subject-matter of the quotation from section 8, it was a re-enactment and reads as follows:
“ ‘All township, district and county officers shall be appointed or elected in such manner as may be provided by the Governor and legislative assembly of each Territory.’
“Chapter 818 (Statutes at Large, Vol.--) provides ‘that the Legislatures of the Territories of the United States now or hereafter to be organized shall not pass local or special laws in any of the following enumerated cases. . . . Regulating county and township affairs,- . . . granting to any corporation, association or individuals any special or exclusive privileges, immunity or franchise whatever.’ This was amended, or rather, given a construction at the time the act of the New Mexico legislature creating San Juan county was approved, as follows: ‘That nothing in the act approved July 30th, 1886, “entitled an act to prohibit the passage of local or special laws in the territories of the United States, to limit territorial indebtedness and for other purposes” shall be construed to prohibit the creation by Territorial Legislatures of new counties and the location of the county-seats thereof.’ Section 2, chapter 79, approved July 19, 1888.
“Section 660 of the Compiled Laws of New Mexico, provides: ‘Each county shall be divided by the first board of commissioners holding office into three compact districts as equally proportioned to population as possible, numbered respectively one, two and three, and shall not be subject to alteration of tener than once in two years, and one commissioner shall be elected from each such districts by the votes of the whole county as herein provided.’
“Section 688 of said Compiled Laws, provides: ‘Any vacancy that may hereafter occur in the board of county commissioners of any county by reason of death, resignation, removal or otherwise, of any one or more county commissioners, shall he filled by appointment to be made by the governor of the Territory.’
“The foregoing comprises the statutes of Congress and of the Legislature of New Mexico, on the subject-matter before us, down to the act complained of. It will be observed in section 1857, Revised Statutes U. S. supra, that Congress not only conferred upon the legislative power of the Territory the authority to appoint or cause to be elected in such manner as the legislative power may provide, but it makes it the duty of the legislative power of the Territory to appoint or elect in such manner as they provide the several county officers in the Territory. The language is as follows: ‘All county officers shall be appointed or elected in such manner as may be provided by the Governor and the legislative assembly of each Territory.’ It will be further observed that there is nothing in the constitution of the United States, the organic act establishing the Territory of New Mexico, nor in any of the acts of Congress designating what county officers there shall be in the Territory of New Mexico;, that is granted by implication to the legislative power or branch of the Territorial government. When such offices have been created where is the power to fill these offices, and by what means? Referring to section 1857, supra, we find that ‘all . . . . county officers shall be appointed or elected in such manner as may be provided by the Governor and legislative assembly of each territory.’ By this act of Congress the sole and exclusive power to fill county offices is vested in the legislative power, with authority to delegate such power to the voters of the several counties, to be exercised in such manner as may be provided by the legislative power; or the legislative power may appoint such officers. By the casual observer it would be contended that it is a vested right in every community or at least every county, to elect its own officers; believing in local self-government: but when we look at the last-mentioned act of Congress we find that the voter has no such inherent right, and, in fact, the only way in which a county can have county offices and county officers is through the legislative power as given it by Congress, and that instead of it being a local self-government, county officers may be appointed by ' the legislative power, or by delegating such power to some person or persons, entirely ignoring the right of local self-government and the right of the people of each county to elect its own officers. The following case is of much assistance to us in construing section 1857, Revised Statutes supra. In this case, People ex rel. Waterman v. Freeman, 80 Cal. 233, 22 Pac. 173, a statute of California is construed. The statute provided that the State library is under the control of a board of trustees, consisting of five members elected by the Legislature in joint convention assembled, and holding their offices for the term of four years. The action was one on ‘information in the nature of quo warranto, instituted by the attorney-general through special counsel, upon the relation of W. K. Waterman, Governor of the State of California, against A. C. Freeman, to test his right to hold the office of trustee of the State library under and by virtue of Pl. Code. Cal., section 2292.’ It was contended upon the part of the relator that the appointing to office was intrinsically, essentially and exclusively an executive function, and therefore that it could not be exercised by the Legislature. On the part of respondent it was contended that there is a specific provision in the Constitution permitting the Legislature to thus appoint, citing section 4 of article 20 of said Constitution, which reads as follows: ‘All officers or commissioners whose election or appointment is not provided for by this Constitution, and all officers or commissioners whose offices or duties may hereafter be created by law shall be elected by the people or appointed, as the Legislature may direct.’ The Supreme Court in passing upon this question said: ‘On the contrary, it had not only been decided in other States of the union under Constitutions containing provisions substantially equivalent to the sections above quoted from our own, that the Legislature could fill offices by itself created, but our own Supreme Court construing identical provisions of our own Constitution had come to the same conclusion.’ From a careful perusal of this California case, it will be seen that the court clearly and distinctly sets out the three departments of government and discusses whether or not section 4 of art. 20 of the Constitution infringed upon the executive department. After holding that it did not it then finds that the Legislature may. fill offices by itself created. This seems to have a very close resemblance to the case under consideration. Section 1858, snpra, has the same relation to New Mexico as section 4, article 20 of the Constitution of California has to the State of California and it will be observed that said section 4 provides, That all officers or commissioners whose election or appointment is not provided for by this Constitution and all officers or commissioners whose offices and duties may hereafter be created by law, shall be elected by the people or’ appointed as the Legislature may direct.’ You will observe that section 1857, Revised Statute, supra, provides, That all county officers shall be appointed or elected in such manner as may be provided by the Governor and legislative assembly of each territory.’ They are strikingly similar,' there being no provision in all the laws establishing the Territory of New Mexico or acts of Congress since then that provides for a single county officer or the filling of a single county office, but leaves it to the legislative power to appoint or elect. In California, under the said section of their Constitution, such officers as under the provision may be created, shall be elected by the people, or appointed as the Legislature may direct; and there it is held that officers elected or appointed by the Legislature itself under such a provision were not elected or appointed in conflict with the constitution. In all the law hereinbefore cited, there is no express provision for filling vacancies in county offices. In the power to create an office is implied the power to fill the office. It would be mere folly to grant the power to create with no means provided for the filling of such office. Therefore I think we may assume that no one will contend but what there is a power somewhere to fill a vacancy in an office that has been created by the legislative power of the territory. It certainly cannot be contended that there is any power except that of the legislative power in the first instance to provide the manner and means of filling all offices of the kind and character in question here. We have cited authority for the creating of new counties in the territory. This, of course, implies the authority to change the old counties. So when Sandoval county was created the act creating it interfered with Bernalillo county, both as to territory and as to its officers. It created the vacancies of county commissioners in Bernalillo county. The contention and issue in this case is, how, or by whom shall the said vacancies be filled; or, more tersely expressed, had the legislative power of the Territory authority to fill these vacancies? If the authority to fill county offices was vested in the legislative power of the Territory by Congress, as expressed in said section 1857 Revised Statutes, supra, it was the duty of the legislative power (comprising the Governor and the legislative assembly) to fill said vacancies, or it must delegate that power either to the people to elect, or to the Governor, or to some one else, to appoint, or such vacancies must continue. Neither the Governor nor the people have the inherent power, or any power, to fill vacancies in the office of county commissioners unless such power is granted them by the legislative power. If the legislative power cannot directly fill such vacancies, then Had the legislative power authority to delegate such power to any person or persons? In short is it possible for the legislative power to delegate to others to do that which it had no power to do itself? The learned counsel for the solicitor-general devotes considerable space to local self-government, and contends that if tbe Legislature can appoint officers in this manner he apprehends dire and fearful results. We are not called upon to express our views of the virtues of local self-government, not to predict the effects upon the people in case the law is upheld by the court. It is our whole duty to decide what the law is; not what it ought to be. We are called upon to construe what Congress, in its wisdom, meant when it said: ‘All county officers shall be appointed or elected in such manner as shall be provided by the ^Governor and the legislative assembly.’ Would it not be willful misconstruction to say that the foregoing language meant the people or the Governor, had the inherent or primary legal right to fill vacancies in the offices of county commissioners? Would it not do extreme violence to our mother'tongue? . It is contended that the appointment of Gutierrez and Sanchez by the legislative enactment complained of, was local and special, regulating the affairs of Bernalillo county. The appointment by the legislative power of Gutierrez and Sanchez as county commissioners of Bernalillo county' was certainly special and local legislation. In the very nature of things it had to be; but we cannot concede that it was “regulating county affairs.” The duties of county commissioners are specifically prescribed by the statute of the Territory: When a county commissioner complies with the law, he acts as a county commissioner; when he does anything else he is not county commissioner, but acts as an individual. The affairs — business and machinery — of the county is not affected or regulated differently by a change of county commissioners. There is but one way prescribed for County Commissioners to act, and that is in compliance with the law of the Territory. When one commissioner drops out and another tabes his place, there is no change in the affairs of the county. A county commissioner is no more a part of the affairs of the county than is an engineer a part of the locomotive. Let us concede for the sake of argument, that the act was an interference with or regulation of county affairs: If so, would it have been less so had the legislative power, instead of acting and using the power vested in it by Congress directly, delegated it to the Governor to appoint, or to the people to elect? Would using that power second-handed, free it from the objection urged? Had political parties nominated, and of the nominees two individuals been elected, would not the indiduals thus elected have been granted special and exclusive privileges, immunity or franchise (if it be a franchise) ? For power to fill vacancies do we not and are we not compelled to go back to section 1857, Revised Statutes, supra, and either take it direct or filter it through some agency provided by the legislative power? After all it is the legislative power that does it. The solicitor-general through his learned representatives, lays great stress upon the case of Morrison v. Burkhart, 112 Pa. 329. It is difficult to understand how one could apply the principles of that case to the one at bar. In a nutshell the Legislature of Pennylvania provided that in counties of not more than 150,000 nor less than 10,000 inhabitants the fees for prothonotary should be changed and that they should have an increase in fees for services from the inhabitants of the county that should be called upon to do business with such officer. The Supreme Court of the State of Pennsylvania held that that was regulating the affairs of counties. Why of course it was. They also say: 'The prothonotary is a county officer. While his fees when received by him are his private property, they are paid by the people of the county, not, indeed assessed upon all the taxpayers as a salary would be, but upon all citizens who have business with the office or litigation in the courts. Every citizen of the county may be affected by such an act, and most of them surely will be.’ And when they are affected by such an act they pay more and in the aggregate the citizens of the county were compelled to pay more for what was done than they had under the former act, it became local and special, and affected the regulation of the affairs of counties. In the case at bar there is no such change of salary: There is not one cent more nor one cent less paid. In other words, the machine moves along just the same, only it has a different engineer.
“It is contended that vacancies should be filled by the general law now upon the statute book, being section 668 of the Compiled Laws of New Mexico as herein-before quoted. It will be observed that said last-mention®! section provides: that ‘any vacancies that may hereafter occur in the board of county commissioners, of any county by reason of death, resignation, removal or otherwise shall be filled by appointment by the Governor.’ In the case at bar the Governor could not fill by reason of a vacancy occurring by death, resignation or removal., There is not mentioned the filling of vacancies caused by legislative enactment, unless it is implied in the word ‘otherwise.’ The duty of defining the word ‘otherwise’ as used by the Legislature, is imposed upon us. We might inquire why the legislative power delegated to the governor the authority to fill vacancies at all. Certainly the Legislature would not have delegated such power had there been a vacancy occurring while the Legislature was in session. The session of the Legislature being limited by law to sixty days, that leaves the balance of two years in which no vacancy could be filled unless such power to fill had been delegated to some person or persons. If no provision had been made by the legislative power to fill vacancies, could they have been filled? Yes: by the legislative power, and by it only. If the Legislature intended that any vacancy that may occur shall be filled by appointment by the Governor why would it specifically point out vacancies caused by death, resignation or removal? It would be a serious charge against the legislative intelligence that it meant any vacancy that might occur shall be filled by appointment by the Governor, after employing the language it did. If the word ‘otherwise’ is to be construed to mean ‘any vacancy,’ then the words ‘caused by reason of death, resignation or removal’ were surplusage and must stand for naught, because they are included in the words ‘any vacancy.’ We believe it to be a universal rule of construction that when general words follow particular and specific words, the general words are confined, in meaning, to the things of like kind and nature designated by the specific words. Sutherland on Stat. Const., sec. 268,; Jensen v. State, 19 N. W. 387 (Wis); State v. Dennison, 82 N. W. 383 (Neb.)
“In the Wisconsin case, supra, an indictment was found under a section of the law which provided, ‘if any tavernkeeper or other person shall sell, give away, or barter any intoxicating liquors on the first day of the week commonly called Sunday, or on the day of the annual town meeting, or the annual election, such tavern-keeper or other persons offending shall be deemed guilty of a misdemeanor.’ The words ‘or other person’ following the words ‘tavernkeeper’ would seem to have been used in the very broadest sense. The indictment charged the defendant with having sold liquor on Sunday in violation of this statute, without changing his occupation. The lower court held that the words ‘or other person’ included any and all persons. The Supreme Court of Wisconsin, however, in construing this section of the law said:
“ ‘The words “tavernkeeper” indicated very clearly the class of persons against whom the act was aimed, and the general words “other persons” must under the familiar rule, noscitue a soevis be taken to mean a similar class of persons and not to be extended so as to include all persons;’ and cite a long list of authorities in support of such construction. They further say ‘the word “tavernkeeper” as used in this statute, clearly means a person a part at least of whose business, is to sell intoxicating liquors’ and apply the rule above quoted. ‘The words “other persons” must be held to mean persons whose business either in whole or in part is to sell such drinks.’ In the Nebraska case, supra Dennison was indicted under section 225 of the criminal code, which is as follows: ‘If any person . . . shall open or establish as owner or otherwise, any lottery or game of chance in this state,’ etc. The indictment charged that Dennison opened and established a lottery or game of chance within the State. After the jury was sworn, defendant’s attorney objected to the introduction of any testimony for the redson that the indictment did not state a crime, because it did not allege that Dennison opened and established a lottery as owner or in some similar capacity. The objection to the introduction of testimony was sustained, and the defendant was discharged: Under a rule of practice in Nebraska, the prosecuting attorney may file exceptions in the Supreme Court to the rule of the lower court for the purpose of having the law settled, and it was done in this case. The Supreme Court said: ‘It was not error on the part of the lower court to exclude evidence under the information claimed to allege a crime under section 225, and which did not allege the capacity in which the defendant acted in opening and establishing the lottery herein mentioned.’ In short, a perusal of the Nebraska case, supra, discloses the construction that the word ‘otherwise’ following the word ‘owner’ was resticted to an owner or some one in similar or like capacity. So, where a statute read that real estate actually purchased or otherwise acquired by an intestate, it should descend to the father, if he is living, or to the mother of such intestate if the father is dead. The words ‘otherwise acquired’ did not include the land descended from the parents. Roberts v. Jackson, 4 Yerg. (Tenn.) 322, and citing several other Tennessee cases.
“State v. Wood County, 72 Wis. 637, is a case in which the term ‘otherwise’ is construed, and which it is employed in a statute as follows, referring to a county road tax/ . . . which shall be expended under their (county board) direction, in making culverts, grading, gravelling, ditching or otherwise improving such highways.’ must be held to mean the improvements of such highways by ‘ the making of culverts, grading, gravelling, ditching or other improvements of a similar character, and not the building of a bridge.’
“Applying this rule of construction to section 688 of the Complied Laws, supra, it would seem that the governor may fill vacancies in the office of county commissioner when such vacancy is caused by death, resignation or removal, or vacancies caused in a like or similar manner. It certainly could not extend to a vacancy caused by a legislative enactment. Such a vacancy is not of like kind, character, or nature, as one caused by death, resignation, or removal. Nor could it extend to such a vacancy for the further reason that the reason for delegating the power to- the Governor would not then exist. The legislative power being in a position then to act, the Legislature being in session, and a vacancy occurring at such time, would not prompt the legislative power to delegate its power to fill such vacancies. As to whether or not the removal by legislative enactment, is of like kind and character as death, resignation or removal, was construed by the legislature when it passed the act appointing the respondents. In other words, if conferring upon the Governor the power to appoint if in seeming conflict with the act complained of, then the Legislature has construed the former act by restricting it not to' include vacancies caused by legislative enactment. But were the. act appointing respondents in conflict with said section 688, the last act would be in force. The power that authorized the Governor to appoint would certainly revoke it. A legislative interpretation of a statute is not binding upon a court, but should have great weight. In Jackson v. Board of Supervisors, etc., 34 Neb. 680, the court says: ‘Legislative construction, although not necessarily conclusive upon the judicial part of the government, it is entitled to great weight when deliberately given.’ Citing Bishop on Written Law; Sedgwick on Stat. Const.; Coutant v. People, 11 Wend. 511.
“We are of the opinion that the legislative power in appointing the. respondents, Tomas C. Gutierrez and Severo Sanchez, county commissioners of Bernalillo county, acted within its authority, scope and duty. We are also of the opinion that the act complained of is not in conflict with the Constitution of the United States, the organic act, or any act of Congress and is therefore legal.
“For the foregoing reasons, the demurrer to the answer of the respondents is overruled, and the information dismissed by the court.
B. S. Baker, Judge.”