(dissenting).
I respectfully dissent.
The City of Albuquerque relied upon §§ 64-25-8 and 9, N.M.S.A. 1953 (Repl. Vol. 9, pt. 2) to dismiss plaintiffs’ complaint because the City was immune from suit. On this basis, the trial court dismissed the complaint against the City with prejudice.
Section 64-25-9 is unconstitutional. The title of the Act, Laws 1941, ch. 192, reads as follows:
An Act Authorizing the State Board of Finance to Direct the Purchase of Ptiblic Liability and Property Damage Insurance Upon All Cars Owned and Operated by the State of New Mexico
The title only authorized the purchase of insurance upon all cars owned and operat■ed by the state of New Mexico.
Section 64 — 25-9 leaves the title of the Act by the wayside. It moves into areas ■of litigation, immunity, release of excess claims, and evidence.
It does not require citation of extensive authority that under Article IV, Section 16 of the New Mexico Constitution, any subject matter not expressed in the title of the Act is void. Gallegos v. Wallace, 74 N.M. 760, 398 P.2d 982 (1964).
City of Albuquerque v. Campbell, 68 N.M. 75, 358 P.2d 698 (1960), held the statute constitutional, limited to the attack made on it. It held the title of the Act, referring to “All cars owned and operated by the State of New Mexico,” was broad -enough to include “political subdivisions,” which in turn includes municipal corporations. See State ex rel. State Highway Comm. of New Mexico v. Town of Grants, 69 N.M. 145, 364 P.2d 853 (1961), which states that the question of immunity was not raised in Campbell,
The only issue is whether the constitutionality of § 64-25-9 can be raised for the first time on appeal. The issue was raised from the bench during oral argument. Thereafter, supplemental briefs were filed by both parties.
The only pertinent pleadings in the record are the complaint, defendants’ motion to dismiss, and judgment of dismissal on the basis of § 64 — 25-9.
Courts of review are dedicated to the protection of the constitution and devoted to the principle that “Justice, Justice shalt thou pursue.” This court has the inherent power to prevent fundamental injustice. Gonzales v. Rivera, 37 N.M. 562, 25 P.2d 802 (1933). The Supreme Court has often chosen to decide cases on theories not followed by the trial courts. “The proper function of this court is to correct an erroneous result rather than -to approve- or disapprove the grounds upon which it is based.” State Highway Com’n v. Ruidoso Telephone Co., 73 N.M. 487, 389 P.2d 606 (1963).
There is a consistent rule that “a trial court will not be reversed if the result be correct, even though the result may have been based upon a wrong reason.” Rein v. Dvoracek, 79 N.M. 410, 444 P.2d 595 (Ct.App.1968). On the other hand, we may reverse the trial court if the result of a motion to dismiss is incorrect based upon a wrong reason. Pankey v. Hot Springs National Bank, 44 N.M. 59, 97 P.2d 391 (1939).
Since Law is Justice, we have a duty to determine the constitutionality of § 64 — 25-9.
Furthermore, questions of constitutionality of an act creating a crime. may be raised for the first time on appeal. The reason is that “ * * * If the law is void, no crime has been committed and none can be committed under it, and the court has no jurisdiction over the person of the defendant or the subject-matter of the cause.” State v. Diamond, 27 N.M. 477, 488, 202 P. 988, 993, 20 A.L.R. 1527 (1921).
The same rule should apply to the defense in this civil case. If § 64 — 25-9 is void, it is no defense to the plaintiffs’ complaint. The district court lacked jurisdiction under a void statute to dismiss plaintiffs’ complaint.
There are three exceptions to the rule which allow this court to determine questions of law for the first time on appeal: (1) when jurisdictional questions are involved; (2) when questions are presented of a general public nature affecting the interest of the state at large, and ,(3) when it is. necessary to protect the..fundamental rights.. of ,the party. DesGeorges v. Grainger, 6 N.M. 52, 412 P.2d 6 (1966).
'A review.of New Mexico decisions cited in DesGeorges, and other citations, will establish: that each of these questions are involved- here. Exceptions (2) and (3) were added by the Supreme Court in the interest of justice. Mitchell v. Allison, 54 N.M. 56, 213 P.2d 231 (1949). Although plaintiffs come within the three exceptions, a fourth exception should be added.
During trial, there are good reasons for not reviewing matters not passed upon. Fullen v. Fullen, 21 N.M. 212, 153 P. 294 (1915). In the absence of trial, no good or substantial reason has been given for refusing to decide statutory constitutional questions first raised on appeal from a judgment of dismissal based upon a motion.
This situation should constitute a fourth exception to the rule.
Should an aggrieved party suffer the pain of defeat in the motion stage of procedure before trial because a statutory constitutional question was not presented by plaintiffs in some manner in the trial court? This is a manifest sense of injustice.
State ex rel. Burg v. City of Albuquerque, 31 N.M. 576, 249 P. 242 (1926), says:
Constitutional questions, not raised in the regular and orderly procedure in the trial, are ordinarily rejected * * *, unless the jurisdiction of the court below or that of the appellate court is involved, in which case it may be raised at any time or on co%irt’s own motion. [Emphasis added].
This rule was followed in some succeeding cases. Miera v. State, 46 N.M. 369, 129 P.2d 334 (1942).
I feel compelled to call this matter to the attention of the public so that lawyers will raise the issue of constitutionality. If the statute is declared unconstitutional, citizens will find relief under §§ 5-6-18 to 5-6-22, N.M.S.A. 1953 (Repl. Vol. 2). These statutes were enacted by the legislature an 1959 to allow suits for negligence against the sovereign and public agencies of the state where liability insurance is carried. The defense of sovereign immunity is not available to the extent of insurance coverage. Montoya v. City of Albuquerque, 82 N.M. 90, 476 P.2d 60 (1970). The judgment of the trial court should be reversed. For the above reasons, I dissent.