State Ex Rel. Bird v. Apodaca

OPINION

McMANUS, Chief Justice.

Petitioner, James Bird, was appointed State Highway Engineer by the State Highway Commission pursuant to § 55-2-1.6, N.M.S.A. (Supp.1975). Governor Apodaca, respondent herein, sought to transfer petitioner from the Highway Department to the State Parks and Recreation Commission under a statutory provision, § 5-4-3, N.M.S.A.1953, which allows such transfers “as in his judgment may be necessary or convenient at any time to further the economical and efficient conduct of the state government . . . ” The temporary transfer would terminate on March 31, 1978. On that date the Highway Department Organization Act takes effect and requires the consent of the Governor for the appointment of “Chief Highway Administrator,” the equivalent to the current State Highway Engineer. Section 55-2-15, N.M. S.A.1933 (Interim Supp.—New Mexico Executive Reorganization Laws 1977).

Petitioner brought this mandamus proceeding seeking an order directing respondent to “cease, desist and refrain from removing or transferring” the petitioner or from interfering with the petitioner’s performance of his duties as State Highway Engineer. Petitioner questions the Governor’s power to effect the transfer and submits that the office of State Highway Engineer is not subject to § 5-4-3, supra. Respondent contends that mandamus is not the proper remedy since the issue to be resolved is based solely upon the judgment and discretion of the executive officer and mandamus will not lie to interfere with the exercise of discretion. Respondent also contends that the relief requested is actually a matter for a writ or prohibition or injunction and prohibition will not lie against a state officer. Therefore, the threshold question to be considered is whether mandamus is the proper remedy and this is the proper court in which to bring the action.

Mandamus and prohibition are extraordinary writs which fall within the purview of this Court’s original jurisdiction by virtue of Art. VI, § 3 of the Constitution of New Mexico. Mandamus and quo warranto may be issued against all state officers, boards and commissions, and mandamus may also be used in conjunction with the Supreme Court’s supervisory control over inferior courts. N.M.Const. art. VI, § 3. Prohibition, by its very nature, will not lie against state officers. Atchison, T. & S.F. Ry. Co. v. State Corporation Com’n, 43 N.M. 503, 95 P.2d 676 (1939). It is properly invoked only against an inferior court to prevent such a court from acting either without jurisdiction or in excess of its jurisdiction. General Atomic Co. v. Felter, 90 N.M. 120, 560 P.2d 541, rev’d on other grounds, - U.S. -, 98 S.Ct. 76, 54 L.Ed.2d 199 (1977). Clearly petitioner’s requested relief is neither styled prohibition nor sounds in prohibition.

However, respondent contends that since petitioner is requesting negative relief, i. e., “to cease, desist and refrain,” that mandamus is inappropriate. Although such a position has been stated in dicta in a previous case, Harriett v. Lusk, 63 N.M. 383, 320 P.2d 738 (1958) (wherein the relief sought was a declaratory judgment and an injunction), this Court has also clearly stated otherwise. In Kiddy v. Board of County Com’rs of Eddy County, 57 N.M. 145, 152, 255 P.2d 678, 683 (1953) it was said, “Public functionaries may be restrained by mandamus from doing what they know is an illegal act.” See also, Sender v. Montoya, 73 N.M. 287, 387 P.2d 860 (1963). Mandamus is defined to include an order “directing the restoration of the complainant to rights or privileges of which he has been illegally deprived.” Black’s Law Dictionary 1113 (rev. 4th ed. 1968). We feel that the petition is properly styled mandamus and the requested relief is within the scope of the mandamus remedy.

As a corollary to this initial question, the respondent submits that this is not the proper tribunal for such a decision and that this petition should properly be brought before the district court for an initial factual determination. It is true that the district court also has original jurisdiction in mandamus, N.M.Const. art. VI, § 13, but we have construed these constitutional provisions as granting concurrent jurisdiction to the Supreme Court and the district courts. Owen v. Van Stone, 17 N.M. 41, 121 P. 611 (1912). This Court will generally defer to the district court so that we may have the benefit of a complete record and so the issues may be more clearly defined. But when issues of sufficient public importance are presented which involve a legal and not a factual determination, we will not hesitate to accept the responsibility of rendering a just and speedy disposition. See, e. g., State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975 (1974).

An additional matter to be considered before reaching the legal merits is whether there is a plain, speedy and adequate remedy at law. The respondent takes the position that mandamus is not a proper remedy, but he also does not enlighten us as to any alternative. A declaratory action or a request for injunctive relief may have been considered but we also perceive the inadequacy of these remedies. The transfer sought to be effected by the respondent is temporary as § 5-4-3, supra, clearly provides. The delays inherent in proceeding in district court and a subsequent appellate review would render the question moot before a final resolution could ever be had by an aggrieved party. The nature of the injury is also such that it cannot be remedied by an award of damages. The petitioner is not being deprived of his salary or tenure for which compensation would be appropriate. Petitioner is being deprived of the duties, responsibilities and authority he was given by law when he was properly appointed to his position as State Highway Engineer. Therefore, it is apparent that no plain, speedy or adequate remedy, other than mandamus, exists whereby petitioner’s rights may be protected. Mandamus will lie where ordinary proceedings would be inadequate. E. g., State ex rel. Sego v. Kirkpatrick, supra; Montoya v. Blackhurst, 84 N.M. 91, 500 P.2d 176 (1972).

The respondent next asserts that judicial intervention is inappropriate because the alleged improper act was within the scope of executive judgment and discretion to determine the most effective use of executive employees. If this was the only basis for petitioner’s complaint we would agree. Executive discretion cannot be controlled by mandamus. Mitchell v. King, 537 F.2d 385 (10th Cir. 1976). We view the matter differently, however. The issue presented here deals with the conflict between a general power constitutionally conferred on the highest executive officer to carry out his duties to see that the laws are faithfully executed by his subordinates, N.M.Const. art. V, § 4, and that state officers are competent and conscientious in performing their duties, N.M.Const. art. V, § 5; and the constitutionally conferred duty and power of the State Highway Commission to perform its function as set forth by the Legislature. As we stated in State ex rel. Sego v. Kirkpatrick, supra, 86 N.M. at 362, 524 P.2d at 978:

The power of veto, like all powers constitutionally conferred upon a governmental officer or agency, is not absolute and may not be exercised without any restraint or limitation whatsoever. The very concept of such absolute and unrestrained power is inconsistent with the concept of “checks and balances,” which is basic to the form and structure of State Government created by the people of New Mexico in their constitution, and is inconsistent with the fundamental principle that under our system of government no man is completely above the law. See, Jenkins v. Knight, 46 Cal.2d 220, 293 P.2d 6 (1956). (Emphasis added.)

The people granted the Legislature the power to determine whether the State Highway Commission would be subject to the control of the Governor. The Legislature could have granted such power to make the State Highway Engineer responsible to the Governor. In fact the 1977 Legislature did give the Governor a means of controlling the appointment of the engineer in the future. The question before us now is whether § 55-2-1, et seq., supra, exempts the position of State Highway Engineer, or supercedes § 5-4-3, supra.

Section 55-2-1.6, supra, establishes the position of State Highway Engineer and provides for his appointment. Subsection C also provides:

He shall devote his entire time to his duties and shall receive an annual salary set by the commission. No state highway engineer, during his period of service, shall hold any other office under the laws of this state or of the United States. (Emphasis added.)

Section 55-2-1.6(A), N.M.S.A.1953 (Supp. 1975) provides that the State Highway Department shall be under the control of an “executive officer” to be known as the “state highway engineer.” Section 55-2-15, N.M.S.A.1953 provides that the State Highway Commission shall appoint a State Highway Engineer who shall be in general charge of the works of the commission and be its executive representative. This statute also provides that the State Highway Engineer shall hold office during the pleasure of the State Highway Commission.

Section 5-4-3, supra, permits respondent to transfer employees where he sees fit:

The governor is further authorized, subject to the approval of the state board of finance, to transfer, temporarily from one office, department or institution to another office, department or institution, such employees as in his judgment may be necessary or convenient at any time to further the economical and efficient conduct of the state government and without regard to the appropriation out of which such employee may be paid; Provided, that the governor shall have the power to designate and employ a personnel director who shall assist him in the performance of the duties imposed upon the governor by the terms of this section.

Section 5-4-3, supra, contemplates that a public officer can perform the duties and obligations of any position to which he is temporarily transferred. Section 55-2-1.-6(C) indicates that the State Highway Engineer cannot carry out the duties of any other position. Section 5-4-3, supra, does not provide for the removal of an officer before the transfer is effected, and respondent does not contend that his actions constitute a removal. So that petitioner still retains his position and title but must devote his time and effort to duties in another department. These sections are clearly inconsistent insofar as they apply to the State Highway Engineer.

We recognize that repeals by implication are not favored, and wherever two statutes can be reconciled and thereby preserve the intent of each, we are so bound to construe them. State v. New Mexico State Authority, 76 N.M. 1, 411 P.2d 984 (1966). It is also well established that statutory words are to be used in their ordinary and usual sense unless the contrary is apparent. State v. Reinhart, 79 N.M. 36, 439 P.2d 554 (1968). The ordinary meaning of “He shall devote his entire time to his duties” is apparent. We assume that the Legislature is well informed as to existing statutory and common law, Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971), and that it does not intend to enact useless statutes, Griego v. Health and Social Services Dept. of State, 87 N.M. 462, 535 P.2d 1088 (Ct.App.1975). Furthermore, when the Legislature enacts a new statute we presume that it intended to change the law as it previously existed. Bettini v. City of Las Cruces, supra. Section 55-2-1.6(C) was enacted in 1967; § 5-4-3 was enacted in 1935. The Legislature must have been aware of the possibility of a temporary transfer of the State Highway Engineer by the Governor. Although the Legislature did not specifically exempt the position from § 5-4-3, the provisions mentioned above concerning his devotion of time exclusively to those duties, the provision relating to authority of the State Highway Engineer as an executive officer of the department, and the provision that the State Highway Engineer shall hold office at the pleasure of the State Highway Commission, would indicate that § 5-4-3 was not intended to apply to the State Highway Engineer.

A statute should be construed to give effect to all of its provisions. State v. Herrera, 86 N.M. 224, 522 P.2d 76 (1974); State v. New Mexico State Authority, supra; Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965). If we were to construe § 5-4-3, supra, to apply to the State Highway Engineer, we would be abrogating the express provisions of § 55-2-1.6(C), supra. This we cannot do. Section 5—4—3, supra, is a general statute which permits the respondent to rearrange the positions of state employees. Section 55-2-1.6(C) is a statute which applies specifically to the position of State Highway Engineer. It is a well-established rule that a specific statutory provision will control over a general provision where inconsistent. Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); New Mexico Bureau of Rev. v. Western Elec. Co., 89 N.M. 468, 553 P.2d 1275 (1976); State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966).

We note a motion by petitioner and intervenor for leave to file an amended petition for writ of mandamus to add additional parties. It is claimed in the motion that the Department of Finance and Administration, on orders from respondent, has started dishonoring all vouchers and all contracts signed by petitioner Bird since he was ordered transferred by respondent. Respondent has filed a motion in response. In light of this opinion both motions are denied.

Therefore, we hold that the petitioner is not subject to the transfer provisions of § 5-4-3, supra, and a writ of mandamus will issue ordering respondent to cease, desist and refrain from removing or transferring petitioner Bird or from interfering with the petitioner’s performance of his duties as State Highway Engineer contrary to the laws of the State of New Mexico.

IT IS SO ORDERED.

EASLEY and FEDERICI, JJ., concur. SOSA and PAYNE, JJ., respectfully dissent.