State Ex Rel. Bird v. Apodaca , 91 N.M. 279 ( 1977 )

PAYNE, Justice

(dissenting).

I respectfully dissent for two reasons:

A. Except in rare instances, the Supreme Court should not be used as the initial forum to entertain disputes. The rare instances where original jurisdiction is taken are recognized in the majority opinion as involving eases when (a) the issues are of sufficient public importance, (b) there are no factual disputes but only legal questions to be resolved, and (c) there is no plain, speedy and adequate remedy in another forum. I do not disagree with the analysis, however, I fail to find its applicability in the present case.

There is no doubt that the issues of this case are of great public interest. Public interest, however, does not of itself rise to the status of public importance. The parties have become so polarized in their respective positions that ultimately a court would be required to resolve the conflict. But at the time the petition was filed the conflict did not interfere with the orderly conduct of business at the State Highway Department so as to justify invoking the original jurisdiction of this Court. The Department did not close its doors and the employees of the Department continued to perform their normal duties in their usual way. Even in the absence of the State Highway Engineer who has undoubtedly been absent for vacations or other reasons, the Department has functioned normally.

The public importance of this case has been overemphasized by the petitioners who for reasons personal to themselves seek to promote the dispute into one in which the Supreme Court should exercise original jurisdiction. In my mind there is no such urgency.

In determining whether there are factual disputes which need resolution before the Supreme Court entertains jurisdiction in this case, we must rely upon the oral presentation of petitioners and briefs of the parties. The respondent has not had the opportunity to orally argue his case. The procedural posture of the cause precludes development of factual considerations. We should only act in such cases when there are no factual differences to interfere with the legal issues involved. We have no such assurance in this case.

The third jurisdictional consideration is whether there was a plain, speedy and adequate remedy in another forum for the petitioners. In other words, could the district court have adequately dealt with the matter to avoid serious public harm. The majority recognizes the concurrent jurisdiction of the district courts with the Supreme Court in issuing writs of mandamus. Any relief given by the Supreme Court in this case could have been obtained in the district court. The possibility of an appeal from the district court of any decision rendered would possibly protract the litigation and delay an ultimate resolution, but so it is in any case. No arguments have been presented to show that a delay would have serious effects on the operation of the State Highway Department. A district court could have given any temporary relief nec- ■ essary to prevent harm to the state while the case proceeded through normal channels. Any personal damage suffered by the Highway Engineer could have been adequately remedied by the district court. Whether the Highway Department might be injured by his absence could only be supported by factual considerations not properly before this Court.

B. My second difference with the majority is of a more philosophical nature. I cannot dispute the conclusions reached by the majority as to the interpretation of the statutes involved, if we accept the premise that the State Highway Commission is constitutionally endowed with authority independent of the Executive. The Highway Department has had a checkered career in the history of the state. To avoid apparent abuses of executive authority, the Highway Commission was organized to have such power and perform such duties as provided by law. N.M.Const. art. V, § 14. The Legislature has the responsibility of defining what powers and duties the Commission would perform, but the phrase “as provided by law” requires the legislative enactments to be consistent with the other provisions of the New Mexico Constitution.

The powers of the government of New Mexico are clearly divided into three branches; the legislative, the executive and the judicial. N.M.Const. art. III. This is a scheme that has proven effective in the federal government and in most states. Although political theorists agree that such a system lacks the efficiency of other types of government, the checks and balances provided insures more control of government by the citizens.

Counsel for the petitioners reluctantly admitted that the legislative enactments implementing art. V, § 14 have created a new creature in the state — a fourth branch of state government. If so, this branch is not accountable to the voters. It is not accountable to the Governor. The Legislature would only have control over the Highway Department through the appropriations of funds and through its ability to change the structure and function of the Highway Department. Efficiency has perhaps resulted but only through the violations of the basic constitutional principles insuring accountability.

The Governor is vested with the supreme executive power of the state. N.M.Const. art. V, § 4. The Highway Commission is created and included as a part of the Article on the executive branch of government. It is true that the Legislature provides the details of the operations of the executive, but it should not do so to the extent of infringing upon the basic constitutional prerogatives of the executive branch.

Viewed by the yardstick of the New Mexico Constitution, I feel that interpreting the provisions of § 55-2-1 et seq., N.M.S.A.1953 as precluding any executive control by the Governor is incorrect. I realize that this Court has not previously viewed the Highway Commission’s activities by such absolute standards. In re Thaxton, 78 N.M. 668, 437 P.2d 129 (1968). I also recognize that such a delineation of powers and authorities is contrary to the emotion causing the constitutional amendment that created the Highway Commission. I feel, however, that whatever executive abuses might have originally prompted the Legislature to remove the Highway Engineer from all executive control by the Governor may well have insulated the Highway Department from accountability to any but the Highway Commissioners.

I would deny the petition for mandamus.