State Office Bldg. Commission v. Trujillo , 46 N.M. 29 ( 1941 )

I concur in the result. I agree with the conclusions announced by Judge FRENGER, except the assumption that under some circumstances a debt may be contracted by or on behalf of this state other than those specified in Sec. 7 of Art. 9 of our Constitution without compliance with the provisions of Sec. 8 of said Article 9.

Such assumption may be supported by the holding in the Connelly case, supra, but I think both the prevailing Justices and the dissenting Justice in that case missed the true meaning of the constitutional limitations upon the power of the legislature to authorize the creation of State debt.

As we are recurrently called upon to consider legislative enactments designed to authorize debts to be contracted by or on behalf of the State without submission of such enactments to the qualified electors of the State, I am convinced that the constitution makers intended to prohibit the creation of State debts except those mentioned in Sec. 7 of Article 9, unless they are repayable from the proceeds of a property tax levy, and then only with the approval of the qualified electors of the State.

The constitution makers, who included the electors, knew that the debt contracting power "is inherent in the state, and may generally be exercised through its Legislature without let or hindrance, except in so far as limited by the Constitution." State v. Connelly, supra, citing Asplund v. Alarid, 29 N.M. 129,219 P. 786.

So they set about to impose limitations upon this power. Section 7 of Article 9 contains both a recognition of this inherent power and placed a limitation upon it. That section recognizes an unlimited power to "contract debts to suppress insurrection and to provide for the public defense". The power to borrow money to meet casual deficits and for necessary expenses is limited to two hundred thousand dollars. But there are no limitations imposed as to manner of creation of the debts or of providing for the repayment thereof.

(All laws authorizing the creation of public debt are specifically immune to referendum, "except as in this constitution otherwise provided". Sec. 1, Art. 4 of our Constitution.) This is followed immediately by the opening sentence of Sec. 8, Art. 9, which says: "No debt other than those specified in the preceding section shall be contracted by or on behalf of the state, unless * * *". (Emphasis mine.)

Then follow the provisions as to the manner in which other public debts may be created. One of these is that there must be an approval of a majority of the qualified electors.

Attention is directed to the declaration in Sec. 8 of Art. 9 that no "law" authorizing a permitted debt other than those specified in Sec. 7 of Art. 9 "shall take effect until it shall have been submitted to the qualified electors, etc."

This language seems to be related to similar language in Sec, 1 of Art. 4 as to suspension, etc., of certain laws upon petition of the electors.

As I understand Sec. 1 of Art. 4, laws not falling within the exceptions named therein may be "suspended." With respect to laws authorizing permitted public debt, such laws shall not "take effect" until the electors shall have had an opportunity to exercise the legislative power reserved in them by Art. 4, Sec. 1. No petitions disapproving or suspending such a law are required. Such a law simply does not go into effect because that other branch of the legislature, viz., the people, have not approved it.

In Re Atchison, T. S.F. Ry. Co., 37 N.M. 194, 20 P.2d 918,921, we said: "`The expression of one thing is the exclusion of another.' `Broom, in his Legal Maxims, says that no maxim of the law is of more general and uniform application; and it is never more applicable than in the construction and interpretation of statutes. Whenever a statute limits a thing to be done in a particular form, it necessarily includes in itself a negative, viz., that the thing shall not be done otherwise.' 19 Cyc. 23."

I think this maxim has a special application here.

It seems to be conceded by counsel that the plan proposed will create a debt, but not the kind of debt referred to in Sec. 8 of Art. 9.

I am satisfied with the forceful logic and reasoning of Judge FRENGER to the effect that what is proposed, if effectuated, would be a debt in the sense described in said Sec. 8 of Article 9, but I go further and say that the kind of debts which may be contracted in the manner mentioned in said Sec. 8 of Art. 9 are the only kind of debts which can be contracted for or on behalf of this State, except those mentioned in Sec. 7 of Art. 9, and no one contends in the case at bar that the debts proposed would be within the objects sanctioned in said Sec. 7 of Art. 9.

I reserve my opinion as to whether a contemplated scheme of embarkation by the state upon new capital ventures, not sanctioned by Sec. 7 of Art. 9 and which are repayable solely out of revenues derived entirely from the income of the venture itself, may create a public debt in any sense of the word.

An attempt has been made in some of our decisions to distinguish between public debts "in a constitutional sense" and other public debts. I think there is only one kind of public debt not prohibited, and that is the kind recognized in sections 7 and 8 of Article 9 of our constitution.

I assert that state debts are public debts.

"The terms `public debt' and `public securities,' used in legislation, are terms generally applied to national or state obligations and dues, and would rarely if ever be construed to include town debts or obligations." Morgan v. Cree, 46 Vt. 773,786, 14 Am.Rep. 640.

Article 4, Sec. 1 says: "The people reserve the power to disapprove, suspend and annul any law enacted by the legislature, except * * * laws providing for * * * the public debt * * * except as in this constitution otherwise provided."

It cannot be doubted that laws enacted by the legislature to contract state debts to meet casual deficits, or failure in revenue, or for necessary expenses, or to suppress insurrection and to provide for the public defense, referred to in Sec. 7 of Art. 9, are public debts. Although there is no restriction as to the method of repayment thereof, being laws providing for the public debt, they are excepted from the referendum provisions of Art. 4, Sec. 1. The only laws which the legislature may enact providing for the public debt, and which are not excepted from the immunity from referendum because it is "otherwise provided" are those providing for the public debt described in Sec. 8 of Art. 9, which specifically requires a referendum.

Thus there is sometimes presented the astounding contention that there may be a public debt not for the objects or work specified in Sec. 7 of Art. 9 or created in the manner provided in Sec. 8 of Art. 9, which may be contracted for or on behalf of the state without a referendum, merely because such debts may be repaid by taxes other than property taxes.

We are then confronted with the inquiry as to why the constitution-makers would provide for a petition invoked referendum on a large number of legislative enactments, many of them of minor importance, and yet deny referendum as to a law creating a public debt in unlimited amount not for the emergent objects mentioned in Sec. 7 of Art. 9, and pledging for its repayment the proceeds of every kind of a tax except an ad valorem or property tax. I do not impute to the constitution makers such an absurd intention.