Even though I can and do sympathize with the tragic predicament of the petitioners, I cannot concur in the decision reached by the majority. I, therefore, respectfully dissent.
To begin with, 1 believe appellants have failed in this appeal procedurely. A comparison between the record of the administrative hearing on the one hand and appellants’ points on appeal on the other reveals that those points were never raised below, and, therefore, they cannot properly be considered here. Rule 13, Rules Governing Appeals. Granted that petitioners’ counsel, in closing argument, discussed some of them. However, the arguments of counsel, no matter how eloquent, are not evidence. Hamilton v. Doty, 65 N.M. 270, 335 P.2d 1067 (1959); Rule 13, supra. The records before us are void of any exhibit or sworn testimony on the points presently under consideration.
A further indication, and one more compelling for me, that the issues raised by this appeal were not adequately pursued below is the fact that although the Department’s regulations specifically provide for hearings to challenge policy under Regulation 275.31, appellants never specified that such was the thrust of their appeal. The regulations contemplate two types of fair hearings. The requests filed by the appellants in these cases clearly fall within the ambit contemplated under Regulation 275.-43. Such hearings are provided for examining the factual basis of the Department’s action in a particular case, not the policy which dictates that action.
Secondly, I disagree with the majority’s analysis that § 13-17-5 (B), supra, establishes the authority of the board to set the limit of general assistance program grants under § 13-17-10(A), supra. § 13-17-5, supra, is a general statute which applies to assistance payments made under the Public Assistance Act, except general assistance program grants. The payments made to petitioners were general assistance program grants. § 13-17-10, supra, subpara-graph B specifically establishes the authority of the board as to grants made under that section: “ . . . The board may by regulation limit the grants that are made to general assistance recipients.” [Emphasis mine.] To say that the Public Assistance Act should be read as a whole does nothing to refute the obligation of this court to give effect to the specific statute when it is found to conflict with a general one. Lopez v. Barreras, 77 N.M. 52, 419 P.2d 251 (1966). The legislature’s reason, for granting the board broader authority under § 37-17-10(B), supra, than under § 37~17-5(B), supra, undoubtedly was that general assistance program grants are made from exclusively State funds.
In my opinion, the legislature, cognizant of the limitation of State funds and also cognizant that the H.S.S.D. has a very difficult responsibility in allocating funds to meet needs which do vary in scope and kind, from time to time, intended by the use of the word “limit” to give the board the authority to restrict grants in amount or duration.
Petitioners on appeal challenge the constitutionality of Regulation 240.2 on the ground that it violates the Equal Protection Clause of the Federal and State Constitutions. The test to be applied in resolving such challenges was set down by the Supreme Court of the United States in Dandridge v. Williams, 397 U.S. 471 90 S.Ct. 1153, 25 L.Ed.2d 491, reh. den. 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970).
“In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ [Citation Omitted.] ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ [Citation Omitted.] ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ ” [Citation Omitted.]
“ . . . [T]he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. [Citation Omitted.] It is enough that the State’s action be rationally based and free from invidious discrimination.”
Petitioners claim of unconstitutionality is without merit. In my opinion the regulation is “rationally based and free from invidious discrimination.”