State v. French , 44 N.M. 169 ( 1940 )

When the true meaning of two pertinent provisions of the state constitution is ascertained, it proves decisive of this case. In § 4 of Art. V, we find language as follows: "The supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed. He shall be commander in chief of the military forces of the state, except when they are called into the service of the United States. Heshall have power to call out the militia to preserve the publicpeace, execute the laws, suppress insurrection and repelinvasion." (Italics mine.)

Art. IX, § 7, provides: "The state may borrow money not exceeding the sum of two hundred thousand dollars in the aggregate to meet casual deficits or failure in revenue, or for necessary expenses. The state may also contract debts to supressinsurrection and to provide for the public defense." (Italics mine.)

The italicized portions of these separate constitutional provisions, considered in pari materia, fairly establish as the intention of the framers of the constitution that the state's unlimited power to borrow without the approving vote of the electorate required by Art. IX, § 8, but lifted as to purposes mentioned in Art. IX, § 7, is limited to the occasions which under Art. V, § 4, authorize the Governor to call out the militia "to preserve the public peace, execute the laws, suppress insurrection and repel invasion". To put the question differently, are not the named occasions, just quoted, which warrant calling out the militia synonymous in meaning with another group of words, to-wit, "to suppress insurrection and to provide for the public defense", as to which an exercise of the state's borrowing power without stint or limitation is authorized? Do not both groups of words contemplate the same emergent situation? When the framers of the constitution in Art. IX, § 8, released all restraint upon the state's borrowing power for the purposes mentioned in Art. IX, § 7, was it not solely for the purpose of putting the financial might of the state behind the Governor when moving under the authority to employ the militia given him in Art. V, § 4? My study of the question compels me to give an affirmative answer to all of these inquiries.

The line which best marks the point of division between the majority and me is put into bold relief by this statement in the majority opinion: "The issuance of certificates of indebtedness without limit, is not confined to instances when the militia is called out by the Governor under his constitutional power."

It is my considered judgment that the direct opposite of this assertion represents the true intention of the framers of the constitution. And, a consideration of other constitutional provisions and pertinent statutes confirms me in the correctness of this conclusion. The majority place much reliance upon Const. Art. XVIII, § 2, imposing upon the legislature the duty of providing for the "organization, discipline and equipment of the militia" to conform to standards of the regular army "as nearly as practicable" and to "provide for the maintenance thereof". This provision is not difficult to understand. The maintenance contemplated is to be provided through biennial appropriations to meet all normal requirements of the military department, such as constructing, altering or repairing armories, salary of the Adjutant General, and the expense of maintaining his office and of conducting encampments for the training of members of the organized militia. All of these are expenses which can be foreseen, budgeted and appropriations made to cover them as has been the invariable custom since statehood.

On the other hand, if it be an expense incident to the Governor's exercise of his powers under Art. V, § 4, viz., "to preserve the public peace, execute the laws, suppress insurrection and repel invasion", emergencies which in their very nature ordinarily could not await specific appropriations, the legislature has not been remiss in the performance of its duty to provide for the maintenance of the militia in this instance. If the expense be one of the last mentioned kind, under the provisions of 1929 Comp. St. § 93-174, the State Treasurer is ordered to pay vouchers properly certified up to $5,000 from any moneys in the treasury, not otherwise appropriated; and, if in excess of that sum, to raise the money to meet the emergency through the sale of certificates of indebtedness.

If, as the majority assert and I agree, the legislature has permissibly delegated to the Governor as Commander-in-Chief of the militia, the details of executing its constitutional power of providing for the organization, discipline and equipment of the militia, it is entirely reasonable to suppose, since it is a legislative power being thus executed by the Governor, that it has retained to itself the power to control the occasion of its exercise, if such exercise calls for expenditures beyond the limits of specific legislative appropriations.

The legislature must have thought it had done so when it enacted in the military code, L. 1925, c. 113, §§ 83, 84, 1929 Comp.St., §§ 93-182 and 93-183, that all repairs and the maintenance of armories, stables, storehouses, etc., should be paid by the state but provided that no moneys should be thus expended "unless the funds be from an appropriation made by the legislature for such specific purpose".

Notwithstanding the delegation by the legislature to the Governor of the power to execute the details of conforming the militia "as nearly as practicable" to the standards of the regular army, I am quite satisfied it has retained to itself the power to determine the occasion for the execution of this power, where such execution calls for the expenditure of funds beyond the limits of specific appropriations. This conclusion at the same time satisfies me that in all enactments adopted for special duty and expenses incident thereto, payable from certificates of indebtedness, the legislature never so much as contemplated that such special duty would not relate itself to one of the objects named in Art. V, § 4 of the constitution, authorizing the Governor to call out the militia. This declaration of legislative intent is supported by the fact that, if so construed, the provisions for special duty and payment therefor from borrowed money are within the constitution and, if otherwise construed, they are beyond it. Where alternative meanings are to be deduced from a legislative enactment, one of which would override constitutional barriers and the other respect them, it must be assumed that the legislature intended to do what it constitutionally could do.

The framers of the constitution thus very wisely authorized the state under legislative sanction to borrow without stint and without the delay incident to popular referenda to defray the expenses of the militia called out by the Governor in the exercise of his constitutional power to meet the emergencies enumerated. They thus conceived that, at all cost, the state must be defended against widespread disorder affecting the public peace, organized resistance to execution of the laws, open insurrection and threatened invasion. Long range provision for the public defense, however, involving as it otherwise would an extraordinary and unlimited exercise of state's borrowing power, freed from the restraint of popular referenda, they just as wisely committed to the legislature's sole discretion, the exercise of which it is powerless to delegate and which, when exercised, must take the form of specific appropriations.

Surely, the framers of our constitution did not contemplate that the "organization" of the militia pursuant to the constitutional mandate given in Art. XVIII, § 2, would occur under such emergent circumstances that an exercise of the state's extraordinary unlimited and unfettered borrowing power found in Art. IX, § 7, would be necessary to accomplish it. If they had sensed the likelihood, or even possibility, of such emergencies attending the organization of the militia (and there is nothing in the history of their time to suggest it), they would have accomplished the organization by self-executing provisions of the constitution itself.

Since it is an admitted fact that the assignment to active duty by the Governor of the officers whose compensation and expenses the voucher rejected by the State Treasurer is intended, in part, to pay does not rest upon a call or proclamation under Const. Art. V, § 4, and there were no moneys in the treasury not otherwise appropriated with which to pay it, the respondent Treasurer properly declined to pledge the state's credit to raise the amount of money mentioned in the voucher. Any statute purporting to authorize him thus to pledge the state's credit, and there are none when properly construed, would run afoul of constitutional inhibitions.

In reaching the conclusion announced, it is not meant to say the Governor must call out the militia under a declaration of martial law before the unlimited exercise of the state's borrowing power by the legislature alone comes into play. As I interpret these constitutional provisions, the Governor, with or without the declaration of martial law, can call out all or any part of the organized militia, assigning the units or men to general or special duty, as the exigencies of the occasion require, and if by his call, he relates their service to his constitutional power in that behalf, found in Art. V, § 4, the public treasury and the state's borrowing power are opened wide to the uncontrolled discretion of the legislature in furnishing the financial support needed. But until the Governor's call does so relate their services, the borrowing power of the state at the legislature's behest in nonexistent.

It is suggested that the occurrence of a catastrophic fire or flood might warrant the Governor in calling out the militia. This, I dispute, if it is sought to make either the basis of the call. But if, as usually is the case, such a calamity endangers security of the public peace, or renders imminent any of the other perils to combat which the Governor is authorized to employ the militia, he may put the military forces at the scene of the danger, resting his call upon it, a constitutional ground for calling out the militia.

The conclusion that there is here shown no power to pledge the state's credit renders it unnecessary to determine whether, if the power existed, the alterations in existing armories for which the greater part of the money to be vouchered will be spent, would reasonably classify as a proper expenditure as "expenses incurred in quartering * * * the troops * * *" within 1929 Comp.St. § 93-174, as amended by Laws 1931, c. 39, § 12.

The amount of public money presently involved is comparatively small. And all the advantages to accrue to the people and the organized militia of New Mexico from the conversion of the cavalry unit into an anti-aircraft unit, as urged upon us, may be conceded. Yet there being no unappropriated moneys in the treasury, it is to the legislative and not the executive branch of the state government that those favoring it should go for the money with which to accomplish the change. The legislature, in granting or withholding the appropriation needed, would be moving in the performance of its true constitutional function of providing for the organization, discipline and equipment of the militia and its maintenance. Const. Art. XVIII, § 2.

The conclusion of the majority reflects a misconception, it seems to me, of the true purpose of Art. IX, §§ 7 and 8, unleashing the state's borrowing power. Section 7 among other things, says: "The state may also contract debts to suppress insurrection and to provide for the public defense". Section 8 then excepts debts so contracted from the restraint of popular referenda. Although the language "to provide for the public defense" in no manner enlarges the Governor's power in reference to the militia, nevertheless, the effect of the majority decision is to lift this phrase from Art. XVIII, § 2, and transfer it to Art. V, § 4, as an added ground authorizing him to call out the militia. Its absence from its accustomed place, however, proves illusory. For, after serving to support a call to put the militia in the field, we find the phrase still performing its true constitutional function of authorizing borrowing to support the militia thus employed.

The chief thing wrong about the whole procedure is the absence of constitutional grounds for the call. Unfortunately, we do not have the benefit of a copy of the Governor's call or proclamation placing certain officers on special duty. Indeed, it is not shown whether it is oral or written. We merely glean from the pleadings that the call to special duty is based on provision "for the public defense". While provision for the public defense inheres in every ground which authorizes the Governor to call out the militia, the call when made must rest upon one or more of the specific grounds mentioned in Art. V, § 4, and not upon the elastic phrase, "to provide for the public defense".

The decision in this case is far reaching. It is perfectly true as argued by the Attorney General as counsel for the State Treasurer, that through the slightly opened door authorizing the pledge of the state's credit to the extent of approximately $21,000, for present purposes, could as easily and with no less logic or reason pass any amount of public funds for certain military purposes not contemplated by Const. Art. V, § 4, without the necessity of specific appropriations or an approving vote of the electorate. For instance, if original estimates of altering present armories to receive new equipment should prove erroneous and its cost should approximate $50,000, instead of $21,000, under the majority decision the State Treasurer must pay and pay through money borrowed from the sale of certificates of indebtedness. Did the framers of the constitution or the legislators providing for special duty intend this? I am confident they did not. All this could be accomplished in the name of "providing for the public defense".

I realize that, where power has been conferred in clear and unambiguous language, it affords no proof of its non-existence to assert that it may be abused. But where a doubt as to its true meaning fairly arises, a consideration of what can be done under it has legitimate weight in determining what was intended should be done. And so, I assert again an abiding conviction that when the framers of the constitution conferred power upon the state through its legislature in Art. IX, § 7, to borrow without limit and without popular restraint to suppress insurrection and "to provide for the public defense", they conceived of defense against the dangers only enumerated in Art. V, § 4, which furnish the Governor his warrant for calling out the militia. It undoubtedly was their thought that funds with which to combat all other dangers, if any, should await legislative action at regular or special sessions.

I think the alternative writ should be quashed. The majority being of a contrary view, for the reasons given, I dissent.