.(dissenting).
The majority state that the issue to be .determined is whether or not Chapter 310, Laws of 1959, violates Article IX, section 14, of the New Mexico Constitution. With that analysis I agree.
The majority state that the city of Albuquerque for all practical purposes in this case must stand on the same footing .as a private utility, or corporation. With that appraisal I agree.
The majority opinion does not include the rule by which the statute in controversy in this case must be measured. It is as follows: Article IX, section 14.
“Neither the state, nor any county, school district, or municipality, except as otherwise provided in this Constitution, shall directly or indirectly lend or pledge its credit, or make any donation to or in aid of any person, association or public or private corporation, or in aid of any private enterprise for the construction of any railroad; provided, nothing herein shall be construed to prohibit the state or any county or municipality from making provision for the care and maintenance of sick and indigent persons.”
This is a positive restriction. It builds with clear and simple words a barrier not to be broken. The language of Chief Justice Watson in State v. Henry, 37 N.M. 536, 25 P.2d 204, 208, 90 A.L.R. 805, although concerned with another section of our Constitution, should again be called to mind. It is as follows:
“ * * * This clause is in our Constitution as the people’s voluntary and studied limitation upon its Legislature. We could have had no purpose except to check the Legislature, as representing the majority for the time being, from encroachment upon this reserved right of the minority or of ■ the individual. Those who complain of such checks are out of sympathy with constitutional government itself.”y
The principle here involved is no different than it was in State ex rel. Mechem v. Hannah, 63 N.M. 110, 314 P.2d 714. The majority would distinguish the two cases with the statement that in State v. Hannah the police power was not considered. That does not constitute a distinction. It must be borne in mind that the legislature possesses no force, either through the exercise of the police power, or any other words of magic sufficient to dissolve the ^barrier of the constitutional limitation.
Admittedly it is within the province of the legislature to exercise the police power of the state. When done, it is not a function of the court to question, approve or disapprove of the exercise if it is not void. On the other hand, if the exercise does violence to the constitution, it is the duty of the court to point out wherein the legislation' is void. Whether or not the legislation is economically expedient, whether or not a super highway through a metropolitan center will promote national defense, whether or not the cost is to be borne by few or many, all these are considerations foreign to this forum in this case.
Believing that the majority opinion sanctions a violation of Article IX, section 14 of the New Mexico Constitution, I dis-' sent.
COMPTON, C. J., concurs.