(dissenting).
I agree that generally the people of a state are supreme in determining what the state constitution shall be and that in the exercise of their sovereign power they may alter or amend their constitution as they choose. The New Mexico Constitution, however, prescribes the method by which it may be altered or revised. Such provisions regulating its own amendment are mandatory, and a strict observance of every substantial requirement is essential to the validity of an amendment thereto. Hillman v. Stockett, 183 Md. 641, 39 A.2d 803; Tipton v. Mitchell, 97 Mont. 420, 35 P.2d 110; Boyd v. Olcott, 102 Or. 327, 202 P. 431.
I agree with the general principle enunciated in the majority opinion that every reasonable presumption is to be indulged in favor of the legality of an amendment to the state’s fundamental law. The principal difficulty with which we are faced stems not so much from a statement of general legal principles but in their application to the concrete factual situation. We can all be entirely in sympathy with an attempt to permit non-resident property owners, upon whom much of the burden of municipal bonded indebtedness must eventually fall, to have a voice in determining whether such bonds shall be issued. But we are, nevertheless, bound by the limitations and restrictions imposed by the framers of our constitution.
The majority must concede that except for the 1964 amendment to article IX, § 12 of the State Constitution, non-residents could not vote in municipal bond elections. The validity of that portion of ch. 300, Laws 1965 which is the subject of this appeal depends upon the validity of the 1964 amendment. In my view, the majority determination that the amendment was validly adopted is erroneous. First, the amendment violates the restrictions of article XIX, § 1, reading: “If two or more amendments are proposed, they shall be so submitted as to enable the electors to vote on each of them separately * * * ” Secondly, because the amendment failed to be ratified by a vote of at least three-fourths of the electors voting in the whole state and of at least two-thirds of those voting in each county, it is prohibited by article XIX, § 1 of the New Mexico Constitution.
I think the majority has incorrectly applied the general principles of construction in this instance. This single amendment sought to change both the time at which bond issues could be submitted to a vote of the people and the eligibility of those who may vote on the question. The issue before us is not whether such a constitutional provision shall receive a liberal rather than a strict, narrow or technical construction, nor does the fact that the legislature submitted the amendment as a single question give it greater efficacy. The majority aptly point out that as originally proposed in the legislature there were two separate amendments, one permitting municipal bond issues to be submitted at special as well as at general elections, and the other authorizing certain non-resident property owners to vote on the question of the bond issue. It must be agreed that there are reasons why an elector might have desired one change but not the other. This exact situation was presented to the Supreme Court of Arizona in Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549, 94 A.L.R. 1502, where the Arizona Supreme Court, while holding that for other reasons not present in the instant case the submission of three propositions as a single constitutional amendment did not invalidate it, nevertheless condemned such submission generally. That court’s language is particularly apt under the circumstances of this case:
“These propositions are so essentially dissimilar that it is obvious that the legislators, who must pass thereon, will probably be divided in their opinion as to their merit. Some of them may earnestly desire proposition A, while being opposed, though in a lesser degree, to B and C. Others consider the enactment of proposition B of pafamount importance while objecting to A and C, while the members of a third group are willing to sacrifice their convictions on A and B for the sake of securing C. The original framers of the three propositions, realizing this situation, place them all in one measure, so that a legislator must vote either yes or no on the measure as a whole. He is thus forced, in order to secure the enactment of the proposition which he considers the most important, to vote for others of which he disapproves. Such practices have been universally condemned by impartial students of public affairs, and yet they are notoriously prevalent in all Legislatures. Indeed, so true is this, that our Constitution permits the Governor to veto separate items of an appropriation bill, without rejecting the whole bill. [New Mexico does likewise.] * * * But, if these actions are evil in the Legislature, where they deal only with statutes, much more are they vicious when constitutional changes, far-reaching in their effect, are to be submitted to the voters. * * * ”
As pointed out by Justice Lockwood in the Arizona case, the principle involved is well summed up by the dissent of Justice Graves in State ex rel School Dist. of Memphis v. Gordon, 223 Mo. 1, 122 S.W. 1008, 1018, which was later adopted as the reasoning of the majority in State ex rel. Pike County v. Gordon, 268 Mo. 321, 188 S.W. 88. It was there said:
“However, before going to the holding of the courts of this state, it might be well to submit the general proposition of law resulting from the examination of all cases bearing upon the question. In 21 American and English Encyclopedia of Law (2d Ed. 47) it is said:
‘Two propositions cannot be united in the submission so as to have one expression of the vote answer both propositions, as voters might be thereby induced to vote for both propositions who would not have done so if the questions had been submitted singly.’ ”
Many of the decisions relied upon by the majority upheld the validity of the amendment against a contention that it contained two separate propositions upon the ground that the two questions were so interrelated that one was not desirable without the other, or that to adopt one and reject the other would lead to an absurd result.
This is not a case where the two changes are so intimately connected that the propriety of both changes taking place, or of neither taking place, is so apparent that to provide otherwise would be absurd. Under the facts in the instant case, to adopt one and reject the other would not result in absurdity. This principle is, to my mind, almost conclusive proof that two separate propositions were contained in the single amendment submitted to the people, and that if they had been separately submitted, one might well have been adopted and the other rejected. The two propositions here clearly had different objects and purposes in view, not dependent upon or related to each other. In my view, the two changes sought in the instant case cannot be said to have a single controlling purpose.
Throughout the entire history of this State, article VII, § 1, has provided the minimum eligibility of electors at all elections. The requirements are:
“Every * * * citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, * * * shall be qualified to vote at all elections for public officers. * * * »
Although the majority disavow holding this section applied only to elections for public officers, their conclusion, of necessity, so implies.
The prior decisions of this court are unanimously in disagreement with any reasoning that article VII, § 1 does not control municipal bond elections because it is not one calling for the election of public-officers.
A school district election to determine-whether bonds shall be issued for the purpose of the construction of school buildings has been held to be an election within the purview of article VII, § 1 of the New Mexico Constitution. Klutts v. Jones, 21 N.M. 720, 158 P. 490; Roswell Municipal School Dist., etc. v. Patton, 40 N.M. 280, 58 P.2d 1192; Johnston v. Board of Education, 65 N.M. 147, 333 P.2d 1051. The words “other elections” as used in article-VII, § 1 of the State Constitution, separating school district elections from “other elections,” was held to embrace a municipal bond election, notwithstanding the contrary-provisions of 1929 Comp., § 120-703. Roswell Municipal School Dist., etc. v. Patton, .supra. Furthermore, ch. 196, Laws 1947 (since repealed) permitted annexation by a county of parts of an adjoining county .after a majority vote of the electors of the .affected area, but article VII, § 1 of the State Constitution was held applicable in State ex rel. Bd. of County Com’rs, etc. v. Bd. of County Comm’rs, 59 N.M. 9, 277 P.2d 960. It is thus clear that the eligibility requirements for electors provided by article VII, § 1 of the State Constitution are not 'limited to elections for public officers, as must be held by the majority, but that, on the contrary, these constitutional restrictions have been repeatedly held by this court to be applicable to such municipal elections •as the one with which we are now concern•ed.
The language, “offers to vote,” as used in article VII, § 1, supra, contemplates the personal presence of the voter, Baca v. Ortiz, 40 N.M. 435, 61 P.2d 320, and requires the manual delivery of the ballot by the voter in the precinct in which he resides. Thompson v. Scheier, 40 N.M. 199, 57 P.2d 293. In legal intendment, the requirement of ch. 300, Laws 1965, providing that certain non-resident property owners may cast their ballots at a special voting place within ■the municipality, is fatal to the statute be•cause such voters do not appear personally to cast their ballots within the precinct of •their residence as required by article VII, .§ 1 of the State Constitution.
This court having repeatedly held that .article VII, § 1 of the State Constitution requires an elector in all elections, including municipal bond elections, to manually cast his ballot within the precinct in which he resides, the 1964 amendment to article IX, '§ 12, which the majority says authorizes •certain non-residents to cast ballots within precincts in which they do not reside affected the requirements of article VII, § 1. 'This can only be accomplished by a constitutional amendment ratified by a vote of at least tíiree-fourths of the electors voting in the whole state and by at least two-thirds of those voting in each county of the state. New Mexico Constitution, article XIX, § 1. It is agreed that the 1964 amendment was not so ratified. The 1964 amendment to article IX, § 12, was not validly adopted and, accordingly, cannot affect the residence requirement of article VII, § 1.
Being convinced that the 1964 amendment to the State Constitution, purporting to change the qualification of electors so as to permit certain non-residents to vote in municipal bond elections, and also allowing special elections to be held for that purpose, is prohibited by other constitutional requirements, I must dissent from the majority.