The theory of the majority is that the petition of electors, the resolution or order calling an election and the notice of election, should each state in the words of the Constitution that the purpose is to erect a court house; or, if not in the exact words, then words that "invariably mean the same thing." That would be the safest course for boards of county commissioners and other like bodies to follow; but the membership of those boards is composed of average citizens, not learned in the law as are my brethren of the bench. Such precision in the use of words as that a synonym substituted for a key word in the Constitution must precisely and invariably in all its uses, have the identical meaning of such key word, should not be required of them. Too often the effect would be that their county would suffer a waste of labor, time and money by being forced to commence proceedings anew, not to mention the expense of court proceedings to determine whether they had erred in the use of a word.
In State ex rel. Rose v. Job, 205 Mo. 1, 103 S.W. 493, 502, the Supreme Court of Missouri stated regarding the membership of school boards: "* * * It is but common knowledge that matters pertaining to the interests of the public schools in nearly all the districts of this state rest with plain, honest, worthy citizens not specially learned in the law, and, if we are to look at all times for a strict and technical compliance with the statute, then we confess that numerous districts in this commonwealth would fail of their purpose, for the reason their organizations did not meet with such strict and technical requirements."
This statement could well be applied to the average board of county commissioners of this state. To require such precision in the use of language is not to the best interest of the people who have to foot the bill, and is opposed to the liberality with which constitutions should be construed.
We stated in State ex rel. Ward v. Romero, 17 N.M. 88,125 P. 617, 621:
"It is the duty of this court to interpret the various provisions of the Constitution to carry out the spirit of that instrument. We should not permit legal technicalities and subtle niceties to control and thereby destroy what the framers of the Constitution intended.
"Where the spirit and intent of the instrument can be clearly ascertained, effect should be given to it, and the strict letter should not control if the letter leads to incongruous results clearly not intended."
This is in harmony with the rules for construing constitutions as laid down by the Supreme Court of the United States, and courts of other states. *Page 420
"The words `concurrent power' occur in an amendment to a Constitution. In framing such instruments words naturally are employed in a comprehensive sense as expressive of general ideas rather than of finer shades of thought or of narrow distinctions. The simple and dignified diction of a Constitution does not readily lend itself to technical definition. There the terse statement of governmental principles in plain language may be looked for." Com. v. Nickerson, 236 Mass. 281, 128 N.E. 273, 279, 10 A.L.R. 1568.
"A constitution, establishing a frame of government, declaring fundamental principles, and creating a national sovereignty and intended to endure for ages, and to be adapted to the various crises of human affairs, is not to be interpreted with the strictness of a private contract. The constitution of the United States, by apt words of designation or general description, marks the outlines of the powers granted to the national legislature; but it does not undertake, with the precision and detail of a code of laws, to enumerate the subdivisions of those powers, or to specify all the means by which they may be carried into execution." Juilliard v. Greenman, 110 U.S. 421, 4 S. Ct. 122,125, 28 L. Ed. 204.
"An act of the General Assembly should not be set aside by implication. A constitution should not receive a technical construction, as if it were an ordinary instrument or statute. It should be interpreted so as to carry out the general principles of the government and not defeat them." Jenkins v. State Bd. of Elections, 180 N.C. 169, 104 S.E. 346, 349, 14 A.L.R. 1247.
"The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. v. Pinson, 282 U.S. 499, 51 S. Ct. 228,229, 75 L. Ed. 482.
Now, taking up the definitions of "remodel" as quoted in the majority opinion, we find that each authority defines it in substance "to model anew; to reconstruct." The citation from Corpus Juris is:
"`Remodel — A word of broad meaning. Among other definitions it means to reform, reshape; reconstruct; to make over in a somewhat different way.
"`Remodeling of a building is more than repairing it or making minor changes therein. The ordinary significance of the termimports a change in the remodeled building practically equivalentto a new one.'"
I can hardly conceive of a building being remodeled without making a different building of it. The majority, however, in opposition to the definitions they have quoted, take the view that one of the ordinary meanings of the word is to make minor changes. I do not think this is tenable; but it is not material. We can assume that one can remodel a building *Page 421 without in effect making it a new one; yet if in truth one of the ordinary meanings of the word is "to reconstruct" so that in fact such reconstructed building will in effect be a new one, this, according to the majority opinion, is "to erect a court house," within the meaning of the Constitution.
But it is asserted by the majority that the notice did not advise the extent of the improvement so the electorate could intelligently vote on the question. If the notice had advised, in the words of the Constitution, that the purpose was to erect a court house, the information given the electorate would not have been nearly so enlightening.
If we are to assume that interested electors will rely on the published notice alone for information, then a notice in the words of the Constitution that the purpose is to erect a court house, would be more likely to mislead, and less likely to secure an informed expression of the electors on the question, than the notice given to the electorate of Guadalupe County.
But it may be assumed that, upon reading such notice, the interested electors will inform themselves generally regarding the details so that they can intelligently vote upon the question. The location, plans and character of the improvement, all would necessarily be subjects of inquiry to secure information for intelligent voting. Ordinarily, if an elector is not interested enough to make inquiries, he is not interested enough to vote. I have no doubt but that the interested electors of Guadalupe County, who voted on the question, were fully informed regarding the proposed use of the proceeds of the bond issue.
The majority opinion cites no authority in support of the theory of strict construction, or any case with supporting facts. It cites State ex rel. King v. Lothrop, 55 Nev. 405, 36 P.2d 355,357. The statute of Nevada authorized the issuance of bonds "to build or purchase" a court house. The resolution of the county board provided for the issuance of $25,000 of bonds to "repair and reconstruct" the present court house. The court said: "The power to repair a courthouse or other public building is expressly given to boards of county commissioners by paragraph 11, § 1942 N.C.L., but the power to issue bonds for such purpose is not conferred by that section." But the Nevada court was informed regarding the extent of the proposed improvements and concluded that the funds were to be used to "repair the court house," saying: "The power to repair a court house * * is expressly given to boards, but the power to issue bonds for such purpose is not conferred." I understand that bonds cannot be issued for such purpose in New Mexico, but that is not the question here.
In Cotter v. Joint School Dist., 164 Wis. 13, 158 N.W. 80, 81, it was held generally that resolutions of school districts and other minor deliberative bodies should receive a liberal construction to effectuate their evident intent and in disposing of *Page 422 an almost identical question, the Wisconsin court said: "It is urged that, since the statute permits a loan only for the purpose of aiding in the erection or purchase of a schoolhouse, money cannot be borrowed for the purpose of remodeling a schoolhouse and building an addition thereto; that the remodeling of a building is not equivalent to an erection thereof. We think such a construction is too narrow. The statute was intended to enable school districts that did not have adequate schoolhouses to obtain them by purchase or erection, and it should receive a liberal construction to effectuate that purpose. The remodeling of a building is more than repairing it or making minor changes therein. The ordinary significance of the term imports a change in the remodeled building practically equivalent to a new one. When it is supplemented by the building of an addition thereto, the whole operation may properly be held to come within the purview of the statute."
This is my view of the meaning of "remodel," but certainly it is one of the ordinary meanings of the word. The Cotter Case was cited with approval by the Supreme Court of Missouri in Beauchamp v. Consolidated School Dist., 297 Mo. 64, 247 S.W. 1004, 1005, in which it is stated: "The purposes for which the district could vote bonds are enumerated by the statute. Section 11127, R.S. 1919. It is urged that no power is given to vote bonds for the purpose of `remodeling' the school building. The statute does authorize bonds `for the purpose of * * * erecting schoolhouses * * * and furnishing the same, and building additions to and repairing old buildings.' According to the dictionaries the word `remodel' has, as the only one of its legitimate meanings which could be applicable here, the meaning `to reconstruct.' In fact, there is nothing included in the word in the sense in which it can be applied to existing buildings in a situation like that in this case, which is not within the statutory language `erecting schoolhouses * * * and building additions to and repairing old buildings.' Appellant's construction, like a similar one in an almost identical case (Cotter v. Joint School District, 164 Wis. [13], loc. cit. 15, 158 N.W. 80), is, as the Supreme Court of Wisconsin said, `too narrow. The statute was intended to enable school districts that did not have adequate schoolhouses to obtain them by purchase or erection, and it should receive a liberal construction to effectuate that purpose. The remodeling of a building is more than repairing it or making minor changes therein. The ordinary significance of the term imports a change in the remodeled building practically equivalent to a new one. * * * The inclusion of an old structure into a practically new one does not take the process out of the meaning of the term "erection" used in a broad sense.' The purpose named within the order was within the statute, and was sufficiently conveyed to the voters by the same language used in the notice." *Page 423
I have found no other cases on the exact question, and none are cited by council; but the following cases throw some light on the issues: Harrell et al. v. Bd. of Com'rs, 206 N.C. 225,173 S.E. 614; Jewett et al. v. School Dist., 49 Wyo. 277, 54 P.2d 546; Carroll v. Lynchburg, 84 Va. 803, 6 S.E. 133; Delione v. Long Branch Com'rs, 55 N.J.L. 108, 25 A. 274; Caskey v. Edwards,128 Mo. App. 237, 107 S.W. 37.
If the bonds had been issued and sold the proceeds therefrom could have been used only to "erect a court house" within the meaning of the constitution. "No bonds issued under this article, nor the proceeds thereof, shall be used for any other purpose than that for which they were issued. Any officer who shall apply the same to any other purpose shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than double the amount of the bonds so misapplied, and imprisoned not less than one year: Provided that the proceeds of such bonds may be applied for the redemption of the same." Sec. 33-3915, N.M.Sts.Ann. 1929.
Not only is the public protected by this statute, but any taxpayer could have enjoined the application of these funds to any unlawful purpose.
But the presumption is that the Board of County Commissioners are acting within the law; and that it was the intention not to merely repair the court house or make minor alterations, but to make of it a new building.
Courts must indulge in every prima facie presumption in favor of the good faith of executive officers in the discharge of their duties as such, and that their acts will be legally correct. State ex rel. Davern v. Rose, 140 Wis. 360, 122 N.W. 751, 28 L.R.A., N.S., 194; Curtis et al. v. Charlevoix Golf Ass'n,178 Mich. 50, 144 N.W. 818; People ex rel. Foley v. Montez,48 Colo. 436, 110 P. 639.
"It is within the authorized power of the board of public works to change the grade of the street or alley in the improving of the same * * *; and, being a public statutory body, it has back of it the presumption of law that it did its duty, and in the case at bar that it acted in conformity with the statutory provisions in reference to the improvement of the street and the change of the grade." Butler v. City of Kokomo, 62 Ind. App. 519,113 N.E. 391, 393.
Also see 22 C.J. "Evidence" §§ 69 and 70.
It is not charged or intimated that the board of county commissioners is not acting in good faith, or that the funds will be spent for any unlawful purpose. In such case we must concede the good faith of the board and presume that the proceedings are regular and within the law. Ellis et al. v. New Mexico Const. Co., 27 N.M. 312, 201 P. 487; Salt Lake County *Page 424 v. Clinton et al.,39 Utah 462, 117 P. 1075; Hicks v. State, 16 Ala. App. 88,75 So. 636.
The concern of the majority seems to be over the assumption that the electors were not given the required notice of the object for which it was proposed to issue the bonds, rather than that the board of county commissioners had or would exceed its authority in the application of the funds.
We held in Albuquerque v. Water Supply Co., 24 N.M. 368,174 P. 217, 221, 5 A.L.R. 519, that the publication of an election notice is directory and unless it is shown that the result would have been different if there had been a strict compliance with the statute, irregularities in the publication of the notice do not invalidate bonds. In that case we stated:
"In the case of Barry v. Board of Education of Clovis, [23 N.M. 465], 169 P. 314, while the point was not actually involved, we said:
"`Where an election is held under authority of an order of the proper authorities, and in the main conforms to the requirements of the statute, though wanting in some particular not essential to the power to hold such an election, and is acquiesced in by the people and approved by their agent, such irregularities do not render the bonds thus issued void.'
"Following the rule laid down in these cases, we are of the opinion that section 3717, Code 1915, is substantially complied with when the last insertion of the notice was had 13 days prior to the election. There is no showing that any injury resulted by reason of the premature publication of the notice, and there is no evidence of any attempt to defraud or mislead any of the voters, and, apparently, all the voters of the city were fully advised as to the date of the election and the purpose thereof.
"Mere irregularity in connection with an election in the case of the notice, will not of itself invalidate an election, but it must further be shown that, if the statute had been strictly complied with, the result would have been different."
Also see Board of Education of City of Roswell v. Citizens Nat'l Bank, 23 N.M. 205, 167 P. 715; Barry v. Bd. of Education,23 N.M. 465, 169 P. 314; Ruth v. Oklahoma City et al.,143 Okla. 266, 287 P. 406.
The effect of the majority opinion is to hold that it is presumed, in the absence of evidence, that the county board has, or will act in bad faith and will apply the proceeds of the bond issue to an unlawful purpose, and that the electorate was without knowledge of the proposed use of the funds; with the result that it overrules Barry v. Bd. of Education; Board of Education of City of Roswell v. Citizens Nat'l Bank; Albuquerque v. Water Supply Co., and Ellis et al. v. New Mexico Const. Co., supra.
It is my conclusion that as the word "remodel" can consistently be used in the *Page 425 sense of erect or build, and only in that sense under the circumstances of this case; that in the absence of a charge or claim that it was otherwise used or that the county board intended an unlawful use of the funds, or that the electorate was misled by its use; the presumption of good faith and legal intent on the part of the board, and of knowledge of the intended use of the funds, on the part of the electorate, should prevail.
The judgment of the district court should be affirmed.