Board of County Com'rs of Bernalillo County v. McCulloh , 52 N.M. 210 ( 1948 )

We need not go beyond previous decisions of our own court to settle the primary question presented for decision by the record on this appeal. Tom v. Board of County Commissioners, 43 N.M. 292, 92 P.2d 167, and Board of County Commissioners v. State,43 N.M. 409, 94 P.2d 515.

The majority concede that the strongest argument raised against lending approval to the bond issue in question arises on a comparison of sections 10 and 11 of Article 9 of the state constitution. For convenience in contrasting them, we set them out side by side as follows:

Sec. 10. "No county shall borrow Sec. 11. "No school district shall money except for the purpose of borrow money, except for the purpose erecting necessary public buildings of erecting and furnishing school * * *." buildings or purchasing school grounds."

It thus appears that when the framers of the constitution intended legislative authorization in school districts to borrow money for "furnishing" buildings erected, they made that intent clear by removing it from the field of inference. But as to counties, they made their intent equally clear by omitting the legislative authorization conferred in the case of school districts. We call to mind the cardinal rule of construction that the mention of one thing excludes another (expressio unius est exclusio alterius). Under its application power is withheld from the legislature to authorize payment by counties for equipment and furnishings from the proceeds of bonds issued to erect county buildings. We have applied this rule of construction frequently and in a variety of situations. Territory v. Ortiz, 1 N.M. 5; Thurman v. Grimes, 35 N.M. 498, 1 P.2d 972; In re Atchison, T. S.F. Ry. Co., 37 N.M. 194, 20 P.2d 918; Atchison, T. S.F. Ry. Co. v. State Corporation Commission, 43 N.M. 503, 95 P.2d 676.

But we are not confined to decisions dealing with cases by analogy. In Tom v. Board of County Commissioners, supra, and Board of County Commissioners v. State, supra, we were dealing with the very language of the constitution here relied upon as the source of authority for the expenditure involved. To repeat it, Art. 9, § 10, reads: "No county shall borrow money except for the purpose of erecting necessary public buildings." We held the bond issue void where the notice of bond election to provide funds for "erecting" a courthouse and jail stated the issue was to be used for "erecting, remodeling and repairing" an existing courthouse. Why? Obviously, because the notice informed the electorate that some of the proceeds of the bond issue would be used for the unauthorized purpose of "remodeling and repairing." Speaking through the late Chief Justice Bickley, we said [43 N.M. 292, 92 P.2d 169]:

"The resolution and notice are defective and ambiguous, in that they indicate that the proceeds of the bonds will be used for erecting a court house and jail, an authorized use of the funds; and at the same time that they will be used for remodeling and repairing an existing court house and jail, an unauthorized use."

In other words, "erecting" the courthouse and jail were within constitutional authorization; "remodeling" and "repairing" were not. Expressio unius est exclusio alterius.

Again, in an opinion in another case dealing with the same language of the constitution, handed down at the same term, on the same day, and written by the same member of the court, viz., Board of County Commissioners v. State, supra, we rested the decision squarely on an application of the rule of construction that the mention of one thing excludes another. The case is not unlike the one just discussed and quoted from. Indeed, the opinion in the former case cites this one. The bond issue was held void as being outside constitutional authorization. The question was put, as follows [43 N.M. 409, 94 P.2d 516]:

"The sole question presented is whether or not under the provisions of Article IX, Sec. 10, of the Constitution and controlling statutes counties can issue bonds for the purpose of remodeling a court house."

And it was answered thus:

"The expression of the limitation on power to borrow money for the purpose of erecting buildings excludes the power to borrow money to remodel, alter or repair a building already existing, unless these processes amount in fact to erection of a building."

It is interesting to note that the present Chief Justice, author of the prevailing opinion in the case at bar, was a lone dissenter in each of the two cases mentioned.

Can it be said that "remodeling" and "repairing" an existing building is less germane or indigenous to the specific thing authorized, viz., "erecting" a building, than is "equipping" and "furnishing" a newly constructed one? We think not. Indeed, we are impressed that to "remodel" or "repair" an existing building in a way that does not amount to rebuilding and thus "erecting" it anew, more nearly approximates attainment of the latter end than does merely "equipping" and "furnishing" a newly erected building. And, yet, as we have seen, by two separate decisions rendered on the same day, we held proceeds of bonds issued for erecting a building were not expendable to "remodel" and "repair" an existing one.

Through what logic or process of reasoning, then, are we to justify spending bond money for furnishing and equipping a newly erected building? How are we to say "to remodel" is not "to erect" but "to equip" is "to erect"? The prevailing opinion furnishes no satisfactory answer to this pertinent inquiry. It is not enough to say:

"We are not unmindful of the force of this argument; but the cogent reasons stated for holding otherwise far outweigh it. The fact that a similar provision is more specific, does not necessarily establish an intent on the part of the makers of the Constitution to limit the use of the funds to the erection of a bare building without site or equipment."

and to dispose of the two decisions of this court so strongly challenging the correctness of the majority conclusion in these cryptic lines:

"Nothing said in Tom v. Board of County Commissioners, 43 N.M. 292, 92 P.2d 167, and Board of County Commissioners v. State,43 N.M. 409, 94 P.2d 515, is opposed to what we have stated herein."

"The courts are, with one exception," say the majority, "unanimous in holding that there is implied power to equip public buildings where power is given to erect them." The statement is followed by citation of a somewhat pretentious list of cases — nine in all. However, when classified according to jurisdictions they represent only six states and one federal case from the 8th Circuit, two decisions being included in the citations from each of the two states of Oklahoma and Wyoming to make up the aggregate of nine. The majority concede that the cases cited from Florida, Oklahoma, North Carolina and Wyoming — Oklahoma County Excise Board v. Kurn, 189 Okla. 203, 115 P.2d 113; State ex rel. Davis v. Barber, 139 Fla. 706, 190 So. 809; Board of County Commissioners v. Malone, 179 N.C. 110, 101 S.E. 552, and Jewett v. School District, 49 Wyo. 277, 54 P.2d 546 — confine equipment purchasable with money borrowed to such as is of a permanent character and becomes a part of the building when incorporated therein. When we subtract from the cases relied on for support those from the states conceded by the majority as confining "equipment" purchasable to that of a permanent nature and which would classify as fixtures, there remain to them to support their position decisions from only three jurisdictions, represented by the cases of Hudgins v. Mooresville Cons. School District,312 Mo. 1, 278 S.W. 769, Moon v. Alred, Tex.Civ.App., 277 S.W. 787, and Midland Special School Dist. v. Central Trust Co., 8 Cir.,1 F.2d 124, 126. And from these three cases we withdraw the last mentioned federal case, believing it more nearly aligns itself along with the jurisdictions mentioned which confine "equipment" to such as becomes a part of the building. In the federal case mentioned, the court said:

"Now if the rigging of a ship is equipment, why not desks, rostrums, ventilating fans and devices, tubular fire escapes, and many other articles used in outfitting a schoolhouse be called equipment? In fact, it is common knowledge that all of these articles are called equipment, and yet when they are once installed they become parts of the building. They are all `lienable articles' when being considered in connection with liens of mechanics and materialmen for the construction of buildings."

See, also, Grabe v. Lamro Independent Consolidated School District, 53 S.D. 579, 221 N.W. 697, cited approvingly by this court in Tom v. Board of County Commissioners, supra, and Pottawatomie County Excise Board v. Standish Pipe Line Co.,189 Okla. 202, 115 P.2d 119, as additional decisions denying the right here claimed to purchase furnishings at large from funds realized from the sale of the bonds.

So it is that when the state of the decisions on the subject is analyzed it is found the majority have the courts of but two states, Missouri, Hudgins v. School Dist., supra, and Texas, Moon v. Alred, supra, (the last mentioned decision being by an intermediate court of appeals) as against the decisions cited above from the states of Florida, Oklahoma, North Carolina, South Dakota, and Wyoming certainly, and the United States Circuit Court of Appeals for the 8th Circuit, seemingly, denying the right here claimed. Of course, to the cases from these jurisdictions may be added our own two heretofore cited, namely, Tom v. Board of County Commissioners, supra, and Board of County Commissioners v. State, supra, which we contend strongly support our position. The implication, then, arising upon a reading of the prevailing opinion that it has the support of the weight of authority in approving the purchase, from proceeds of the sale of bonds, of equipment of all kinds essential to the operation of a first class hospital, is so thoroughly repudiated by analyzing and weighing the authorities that we shall argue this phase of the case no further.

We are not unmindful that the courts which have passed on the question are unanimous, as stated by the majority, in holding that the power to erect a building implies the power to purchase the necessary land on which to erect it. They employ this fact arguendo to support their claim that the power to erect implies also the power to equip and furnish. But they must make the argument in the face of this court's holding in Tom v. Board of County Commissioners and in Board of County Commissioners v. State, both cited above, that the power "to erect" does not include the implied power "to remodel" or "to repair", and in the face of the further fact that when the framers of the constitution intended that the purchase of "furnishings" from bond money should be permissible they made that intention clear by so stating. See Const. Art. 9, § 11, where the prohibition against borrowing by school districts excludes borrowing for "erecting" school buildings and for "furnishing" them as well. Then compare the language of this section with that of Const. Art. 9, § 10, relating to county buildings. The difference is obvious and significant.

It requires but a glance at the two companion sections of Const. Art. 9 to see that the effect of the majority opinion is to amend section 10 relating to county buildings to make it read as does section 11 relating to school buildings by supplying the word "furnishing" in the former section where omitted by the framers of the constitution. It would have been an easy matter for them to supply that word themselves if they had intended its presence, or, to have omitted it from section 11 if, as the majority contend as to section 10, the language means the same without it.

In writing the majority opinion for this court in Chase v. Lujan, 48 N.M. 261, 149 P.2d 1003, 1011, the present Chief Justice who is author of the majority opinion herein challenged, said:

"One of the principles of our democracy for which our armed forces fight is the separation of powers. We, too, champion the principle that amendments to constitutions must be left to the people and not supplied by the courts."

We hereby renew our pledge of allegiance to the declaration of principle so forcefully stated by the then Mr. Justice Brice in Chase v. Lujan, supra, and seek its application to the question at issue in the case at bar.

A mere reading of the enabling act is convincing that the legislature authorized counties to purchase not only equipment of a permanent character which installed would become a part of the building but as well all types of furnishings and equipment, surgical and otherwise, used in the operation of a first class hospital. Proof of this is demonstrated by the fact that the levy authorized is merely for "maintaining and operating" such hospitals; not for the purchase of equipment. See L. 1947, c. 148, § 2. But for this fact, it might be presumed that the county commissioners in authorizing the purchase of equipment from proceeds of the bond issue, and the people in voting favorably therefor, meant to include only the kind of equipment that lawfully could be so purchased and installed. Jewett v. School District, supra.

In our opinion, the attorney general should not be compelled to lend blanket approval to the proposed bond issue since the purchase of equipment generally from the proceeds thereof is contemplated. For this reason, the alternative writ of mandamus should be discharged. The majority concluding otherwise, we dissent.