(dissenting).
I cannot agree with the majority opinion and, therefore, I must dissent.
My dissent is not positioned on the merits, and consequently, I will not respond to those substantive arguments since it is my firm belief that this Court should never be used in the manner requested. The district court has concurrent jurisdiction to hear the matter and this action should have first been heard by that court.
My dissent is premised on three grounds:
(1) In actuality this is a petition for a writ of prohibition and prohibition never lies against state officers.
(2) Assuming arguendo that the petition is properly a writ of mandamus, this Court should still refrain from acting in this matter since mandamus only lies to direct the performance of a nondiscretionary, ministerial task. It never issues to compel or restrain official discretion.
(3) The majority opinion has the force and effect of a peremptory writ. If a writ is to be issued it would be more appropriate to issue an alternative writ since the Governor was denied due process of law inasmuch as he was not allowed to argue orally before this Court and yet the petitioner did. Albeit the Governor submitted briefs in response to the petitioner’s briefs, he was still denied due process of law since he was not afforded the same opportunity as the petitioner, to wit the right to be heard equally in arguments before this Court.
I. Mandamus vs. Prohibition
It has been stated that a writ of prohibition is the exact counterpart of a writ of mandamus, since mandamus is an affirmative remedy, commanding certain things to be done, while prohibition is negative in nature and forbids the doing of certain things which ought not to be done. J. High, A Treatise on Extraordinary Legal Remedies, Embracing Mandamus, Quo Warranto and Prohibition, § 763 (3d ed. 1874).
Although, in the case at bar, the petition is styled as being mandamus, in its prayer it requests of this Court to order the Governor “to cease, desist and refrain from removing or transferring the petitioner. . . These words are negative in nature since they forbid the Governor from transferring Mr. Bird. It is, therefore, my belief that this is in actuality a Petition for a Writ of Prohibition.
We must next look to the authority behind writs of prohibition. The N.M.Const. art. VI, § 3 provides in pertinent part:
The Supreme Court shall have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions, and shall have a superintending control over all inferior courts
Since the Court derives its power to issue writs of prohibition from its power of superintending control over inferior courts, its original jurisdiction in prohibition is confined to inferior courts and does not extend to prohibitory actions against state officers or agencies. Atchison, T. & S.F. Ry. Co. v. State, 43 N.M. 503, 95 P.2d 676 (1939). The Atchison case stated:
Our original jurisdiction in prohibition is confined to ‘inferior courts’ and does not extend to prohibitory actions against state officers. As to state officers at least, our original jurisdiction is confined to mandamus and quo warranto. Our original jurisdiction in prohibition arises from our superintending control over inferior courts and is confined to them.
43 N.M. at 512, 95 P.2d at 682.
Accordingly, since this Court has no jurisdiction to issue a writ of prohibition against a state officer then we lack the authority to grant the relief requested by Mr. Bird.
The majority makes the bold statement that, “[cjlearly petitioner’s requested relief is neither styled prohibition nor sounds in prohibition.” I agree with the first portion of the statement since it is clear that the petition is not styled prohibition; however, the language in the prayer is inescapable. The intent of it remains negative inasmuch as we are to prohibit the Governor from transferring Mr. Bird. As previously stated, this Court is without proper jurisdiction to issue a writ of prohibition against state officers. Atchison, supra.
The majority opinion cited Kiddy v. Board of County Com’rs of Eddy County, 57 N.M. 145, 255 P.2d 678 (1953) as stating, “[pjublic functionaries may be restrained by mandamus from doing what they know is an illegal act.” [57 N.M. at 152, 255 P.2d at 683]. It is not apparent to me that what the Governor has seen fit to do is an illegal act. In his view he is legally operating under a statute which he has the official discretion to use. The quoted section from Kiddy, supra, has no application in this case; how can the Governor know that what he is seeking to do is illegal when he is acting under a legislative enactment which appears to allow him to do what he accomplished? When the Governor, upon advice from the Attorney General, acts under a statute that has not been declared unconstitutional, and which petitioner concedes is constitutional, demonstrates that this case is not a clear one for mandamus to issue — particularly peremptorily. This clearly indicates to me that it is inappropriate for this Court to act in this extraordinary manner since we should have the benefit of the First Judicial District Court’s findings upon an evidentiary hearing before it.
II. Mandamus Against Public Officers
A. Concurrent Jurisdiction
The N.M.Const. art. VI, § 3 states that the “Supreme Court shall have original jurisdiction in mandamus against all state officers.” It is also stated in the N.M.Const. art. VI, § 13 that “district courts . . shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, prohibition, and all other writs . . .” Also, § 22-12-3, N.M.S.A.1953 gives the district court “exclusive original jurisdiction in all cases of mandamus, except where such writ is to be directed to a district court or a judge thereof in his official capacity, in which case the Supreme Court has exclusive original jurisdiction . . .”
The conflict between article VI, § 6 of the New Mexico Constitution and § 22-12-3 has never provided much difficulty since irrespective of the statute this Court has regularly exercised original jurisdiction in mandamus. State ex rel. Castillo Corp. v. N. M. St. T. Com’n, 79 N.M. 357, 443 P.2d 850 (1968). However, in Dumars and Browde, Mandamus in New Mexico, 4 N.M. L.Rev. 155 (1974) at page 157 it is stated:
Supreme Court Rule 12 has given force and effect to the policy behind the statute [§ 22-12-3], by requiring that an original petition which could have been brought in a lower court must set forth ‘the circumstances necessary or proper to seek the writ in the supreme court [sic].’ (footnotes omitted).
As a footnote the authors stated:
No doubt the legislature, in enacting § 22-12-3, recognized that the primary function of the supreme court [sic], as the ultimate appellate tribunal of the State, should not be undercut by the needless concern for cases which could first be presented to an inferior tribunal.
Id. Therefore, it is my position that the policy behind § 22-12-3 is that “absent a compelling justification for bringing the action in this Court the district court is the proper forum for a mandamus action against anyone other than a district court judge.” Id.
Supreme Court Rule 12 also leads me to interpret § 22-12-3 as requiring a compelling justification for first bringing the action to this Court in lieu of the district court. Rule 12 states that if the application for the writ could have been made to some other court with concurrent jurisdiction then the petition must set forth the circumstances making it nedessary or proper to seek the writ from this Court. Thus, “the standard to be applied is whether the particular case is of such public importance to the State as to require original consideration” by this Court. 4 N.M.L.Rev. at 157.
Query: What meets the standard “of such public importance?”
It can plainly be observed that this is a great controversy. The newspapers have followed this episode with intense interest. Much has been written about the division within the highway commission and the position the Governor has taken in the matter. Since such a commotion has been made of the fracas this might lead an undiscerning eye to believe that the controversy requires our immediate attention. Unlike my brothers in the majority, I am not so swayed. All the attention placed on the squabble has not itself elevated it to the position of a legal battle which is ripe for appellate review and one which requires our immediate attention in an extraordinary manner. There are many cases in which the litigants would like to have us hear their matters immediately so that they may be saved from the time and expense of first having the matter heard on its merits in lower court. But our system of appellate review requires litigants to develop their case fully in lower courts thereby bringing out all the facts and legal issues which allow us to take a judicious look at what has occurred below. Now, the majority has seen fit to dispense with judicial restraint.
The case does not meet the standard “of such public importance” since it is my belief that it only involves a political battle within the executive branch. We must never become embroiled in a political fracas. As in all other cases in which the lower court has concurrent jurisdiction this case should first be deposited in such district court.
I am also not persuaded by the majority’s reasoning that the case would be moot before we reviewed it if it first had to be heard in lower court. There are many cases which have become moot before this Court reviewed the lower court’s decision. This has never before had us stumbling over ourselves in order to reach a quick decision, and therefore, we should not make a precedent of it now. Besides if it did become moot that fast, this may be an indication of how insignificant the case really is.
Hence, since this controversy is not of sufficient public importance, then § 22-12-3 read in pari materia with Supreme Court Rule 12 dictates that the lower court should first hear the matter. This Court should then apply judicial restraint and avoid interfering with the political fight until all the facts and legal issues have been developed by the lower court. I cannot resist the impulse of looking down the “highway” and foreseeing the problems that may result from this case since it sets such a dangerous precedent by creating an enormous “ehuckhole” for future cases involving state officials.
B. Discretion of Public Officers
In Kiddy, supra, this Court cited First National Bank v. Hayes, 186 Iowa 892, 171 N.W. 715 (1919) in which the Supreme Court of Iowa defined official discretion as being:
[W]hen applied to public functionaries, as the power or right conferred upon them by law of acting officially under certain circumstances, according to the dictates of their own judgment and conscience, and not controlled by the judgment or conscience of others.
171 N.W. at 718.
This Court has previously stated in Kiddy, supra, that:
[A] nondiscretionary or ministerial duty exists when the officer is entrusted with the performance of an absolute and imperative duty, the discharge of which requires neither the exercise of official discretion nor judgment.
57 N.M. at 149, 255 P.2d at 681.
Accordingly, I advance the argument that what the Governor has chosen to accomplish is fairly within his discretion because § 5-4-3, N.M.S.A.1953 is a valid statute which the Legislature has allowed to remain in full force and effect. Since the Governor has chosen to act under § 5-4-3 it should not be said, as the majority states, that his actions are “illegal.”
The majority states that the “[petitioner is being deprived of the duties, responsibilities and authority he was given by law when he was properly appointed . . .” However, the majority conveniently overlooks the inescapable fact that the Governor was elected to carry out his duties and responsibilities. The opinion, therefore, deprives the Governor of exercising official discretion, and I believe this may be an invasion by this Court of the separation of powers.
The actions of the Governor are discretionary since he was acting within a law which the Legislature has left for him to act under. Just because § 5-4-3 is contradicted by §§ 55-2-1 et seq., which were more recently enacted, does not erase the fact that the Governor could in his own official discretion choose to act under the older statute. Mandamus is improper since it only lies to direct the performance of a nondiscretionary, ministerial task. Kiddy, supra.
This Court has no business interfering with a discretionary act by the Governor since it dangerously interferes with the separation of powers established by both the Constitution of the United States and the New Mexico Constitution. The majority opinion makes quick reference to State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975 (1974). It involves the only other time this Court issued mandamus against the chief executive of this State. The Sego case, supra, is distinguishable and therefore inappropriate since it involved an unconstitutional use of the Governor’s veto power. The petitioner in the case at bar has not asserted that what Governor Apodaca has done is unconstitutional. Mandamus would necessarily lie if the Governor’s actions were unconstitutional; but there being no such allegation the Sego case, supra, has no application.
Mandamus against the state’s chief executive should be used sparingly, and this is not the proper case for it to be used.
The statute is not unconstitutional nor were the Governor’s acts thereunder illegal.
III. The Majority Opinion — Peremptory Writ
The majority opinion has granted the petitioner a peremptory writ. This was accomplished by granting the relief sought without first issuing an alternative writ. The alternative writ would allow the Governor the same right to oral argument that was accorded to the petitioner. No concern seems to be expressed that this may be a violation of due process or constitutionally suspect.
A short discussion of peremptory writs is necessary. Section 22-12-7, N.M.S.A.1953 reads:
When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases the alternative writ shall be first issued.
Therefore, before a peremptory writ could be issued the Governor’s duty to act must be clear and it must be readily apparent that there is no valid excuse for not performing it. As previously stated, the Governor is justified in his actions in transferring state employees since § 5-4-3 remains operative. This immediately removes the Governor’s actions from the area in which a peremptory writ would normally apply since the Governor has lawfully utilized the statute. A peremptory writ only lies when that which mandamus compels is absolutely clear. The circumstances in the case at bar do not reveal that the Governor has an absolute duty to observe §§ 55-2-1 et seq., N.M.S.A.1953 (Supp.1975) over § 5-4-3. The statutes have remained in full force and effect and the Governor, through his discretion, chose to utilize the temporary transfer statute. The naked fact that § 5—4-3 remains in existence should at the very least demonstrate that the Governor’s duty to act in the manner compelled by mandamus is not absolutely clear.
If a writ is to be issued the Court would be much better advised to grant an alternative writ. This would then allow the Governor an opportunity to orally argue his points and authorities against mandamus.
In 4 N.M.L. Rev., supra, it is stated on page 161:
Although the New Mexico Supreme Court held in an early case that issuance of a peremptory writ did not contravene due process of law, more recent cases expanding the concept of due process have so undercut that earlier ruling as to render use of the peremptory writ constitutionally suspect and inadvisable, (footnotes omitted).
This point is well taken. Albeit the Governor submitted briefs in response to the petition he has not been afforded an opportunity to orally argue before this Court.
For the above stated reasons, I dissent and issue a caveat to my brothers to apply judicial restraint. This case is not of such significant public importance which requires our immediate attention. It belongs in the district court where all other political fights either survive or die. I am sure that there are many underlying issues and, therefore, we are only seeing the tip of the iceberg.
This is nothing more than a political “hot potato” within the executive branch, which the majority seems to relish entertaining on its merits. I only hope that this precedent does not serve to force us to eat it without the benefit of the necessary ingredients and cooling period which a factual hearing in the lower court would supply. If we decide the.controversy without first allowing it to be developed, as any other case that arrives on appeal, this Court might find itself setting a dangerous precedent. Additionally, the mere fact that this Court is split 3-2 on this decision is indicative that this case is not a proper case for mandamus to lie — especially peremptorily. A writ of mandamus only lies to compel a nondiscretionary, ministerial task. A peremptory writ is only issued when the duty to act in the manner compelled by mandamus is clear with no room for argument that the acts of the state officer are discretionary. There existing dissension on this Court should illustrate to the majority that it is not a clear case for mandamus and therefore this Court is ill-advised to grant the writ.
For all the foregoing reasons — any one of which would suffice — I dissent, and would deny the issuance of any writ.