State Ex Rel. Hughes v. Cleveland

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The question primarily to be determined is whether L. 1943, c. 95, imposing a tax on cigars and cigarettes, and allocating the proceeds of the levy to old age assistance through the Department of Public Welfare, is exempt from a popular referendum under Constitution Article 4, § 1, as a measure providing for the preservation of the public peace, health or safety. Secondarily, but for decision only if the act be held referable, we have the question whether petitions for referendum filed on the ninety-first day following adjournment of the Legislature, the ninetieth day falling on Sunday, are seasonably filed.

Petitions for a reference of the challenged act, which for the purposes of deciding the first question will be deemed in all respects sufficient to effect suspension, were seasonably tendered to the Secretary of State for filing. She refused to file them, assigning as a reason that under the referendum clause of the Constitution she was neither obliged nor permitted to file petitions seeking reference of a law providing for preservation of the public peace, health or safety, of a kind which she deemed the act involved to be. Thereupon this action in mandamus against such state official as respondent was instituted before us, to compel filing of the petitions, and we have taken original jurisdiction of the case by issuing an alternative writ. The respondent has answered, the cause has been argued, and we now must answer the one question and, contingently, the other hereinabove stated.

The act involved, as already noted, imposes an excise tax on cigars and cigarettes and allocates the net proceeds of collections to old age assistance through the Department of Public Welfare. In a preamble to the act there appear the following recitals, to-wit:

"Whereas, cognizance is taken of the extreme need now existent among the needy aged, of this state, and

"Whereas, the funds provided presently are not adequate to undertake and administer proper relief to this unfortunate element of our population, and

"Whereas, the funds available presently are not commensurate with the need in some cases;

"Now, Therefore, Be it declared the policy of this state that the revenues derived by this act are extremely needed to alleviate this unfortunate situation."

Section 14 of the act provides:

"Section 14. Department of Public Welfare Fund.

"(a) All revenues including taxes, penalties, interest and license fees collected under this act shall be paid over to the State Treasurer, and shall be placed by him in a fund to be known as the ``Department of Public Welfare Fund' for old age assistance.

"(b) At the end of each month all sums remaining in said Department of Public Welfare Fund for old age assistance shall by the State Treasurer be permitted to be drawn upon for the purposes of old age assistance exclusively to be indicated by law in the appropriation act covering said Department."

Reference to the Public Welfare Act (1941 Comp. §§ 73-111 to 73-122) discloses that in order to be eligible for old age assistance the recipient among other conditions must be over sixty-five years of age, destitute and not an inmate of any public institution. Assistance is to be granted among others to an eligible needy aged person who "has not sufficient income or other resources to provide a reasonable subsistence compatible with decency and health." § 73-111. The amount thereof is to be determined by the department "with due regard to the resources and necessary expenditures of the case, * * * and shall be sufficient, when added to all other income and support available to the recipient, to provide such person with a reasonable subsistence compatible with decency and health." § 73-115.

We may and should assume that the Legislature in enacting the questioned measure was moved, in part, by an anticipated large decrease in revenues available for this type of assistance, as pointed out by the State's Chief Executive, the Honorable John J. Dempsey, in a message read personally before a joint meeting of the House and Senate on February 4, 1943, while the bill was under consideration by the Legislature. The Governor's message also advised the joint session that the average amount available for old age assistance was approximately $19 per month per person; that the total loss to the Department of Public Welfare from a falling off in receipts from the liquor and compensation tax would approximate $360,000, which under the system of matching with federal funds for relief of this type would eventuate in an ultimate loss of revenues to the department of $720,000 available for the forms of relief extended. Mention, too, was made of the rising cost of living and the progressively diminishing purchasing power of such funds as were granted for old age assistance. Attention was called to the fact that approximately five thousand aged persons in New Mexico were being assisted at that time through the Department of Public Welfare, a figure borne out by the report of a special legislative committee named to investigate such department.

That the conditions pointed out in the message of the Chief Executive as well as in the report of the special legislative committee form the background of the legislative finding of urgent need appearing in the preamble, we entertain no doubt. Presumably the Legislature through appropriate committees or otherwise, satisfied itself of the accuracy of the conditions brought to its attention by the Governor. It was its duty so to do and we may assume it did. State ex rel. Short v. Hinkle,116 Wash. 1, 198 P. 535. Our right, if not our duty, to notice judicially the message of the Governor before the joint session of both houses of the Legislature convened to receive the same cannot be considered doubtful in view of the governing rule to be found in 1941 Comp., § 19-101, Rule 44(d) (3). See also 20 Am.Jur. 67, § 44 "Evidence". Likewise the right to notice judicially the report of the legislative committee appears supported by reason as well as authority. 20 Am.Jur. 64, § 41 "Evidence"; State v. Torbert, 200 Ala. 663, 77 So. 37; State v. Gordon,236 Mo. 142, 139 S.W. 403.

So much for the background of the questioned legislation. We come now to consider whether the same is exempt from a popular referendum under Section 1, Article 4, of the Constitution, denying application of the power reserved to the people, among others, to any "laws providing for the preservation of the public peace, health or safety". In Hutchens v. Jackson, 37 N.M. 325,23 P.2d 355, in construing section 23 of Article 4 of the Constitution, authorizing the Legislature to put into immediate effect upon the conditions stated "any act necessary for the preservation of the public peace, health or safety", we held a legislative declaration of emergency passed by the required vote in each house was conclusive upon the courts as affecting the time when the law should go into effect. We felt called upon, however, to warn against the assumption that the same conclusiveness would be given such a declaration as precluding an attack by referendum, when that question should be properly before us. This admonitory language was felt proper because of the somewhat similar language employed in the two constitutional provisions.

That the warning was timely soon was demonstrated. Todd v. Tierney, 38 N.M. 15, 27 P.2d 991, came on for decision less than six months later. We there held that the declaration of emergency, authorized by Section 23 of Article 4 of the Constitution, appended to the act in question, while placing it in immediate effect and beyond the power of suspension by a referendum petition, nevertheless, left the question of the act's referable character open to future determination by the courts in the event a petition seeking referendum should thereafter be filed. An opinion on rehearing in Todd v. Tierney, authored by then Chief Justice Watson, stated such as the result to be deduced from that decision. Several opinions by different justices had been filed disclosing the court divided four to one on the question of suspensibility of the act and three to two on that of referability in view of the presence of the emergency clause.

The correctness of this appraisal of the holding in Todd v. Tierney is affirmed by what is said in Flynn, Welch Yates, Inc. v. State, 38 N.M. 131, 28 P.2d 889, decided shortly thereafter. With the law on the subject thus clarified, there then came on for hearing Hutcheson v. Gonzales, 41 N.M. 474,71 P.2d 140, in which case we held that a law proposing an amendment to the Constitution, if to be deemed a "law" under Constitution, Article 4, § 1, is exempted from a referendum as one "providing for the preservation of the public peace, health or safety". Otherwise than in the cases mentioned, we have had no occasion to construe or interpret the referendum clause in our Constitution in the respects here involved.

Consideration of the provision in the cases mentioned, however, and further study and research upon the subject following submission of the case at bar are convincing of what seems agreed by opposing counsel that the language of the provision in our Constitution is sui generis in one respect. There is none other like it in the twenty states whose constitutions reserve to the people a veto power over all laws save those enumerated as exempt from the veto power. In most, if not all, of the other constitutions providing for the referendum the language of exemption is "laws necessary for the immediate preservation of public peace, health or safety", or that in substance. The words "necessary" and "immediate" are missing from the provision in our Constitution.

The fact of the absence of these words, significant in and of itself when compared with the language of practically all other state constitutions employing them, is rendered doubly so when noticing judicially, as we may and do, that a minority report of the Committee on Legislative Department proposed to the Constitutional Convention both the initiative and the referendum, suggesting as a substitute for the language actually employed in the referendum clause the exception of "laws for the immediate preservation of the public peace, health and safety, by petition signed by 8% of the legal voters of the state * * *", and that this minority report was rejected, thus denying the initiative provision and employing the much broader language of exemption found in the Constitution as proposed and adopted. These considerations may explain Mr. Justice Bickley's reference in his special opinion in Todd v. Tierney, supra [38 N.M. 15,27 P.2d 1009], to "the rather broad exceptions from referendum named in section 1 of article 4."

It thus can be seen that the framers of our Constitution in proposing, and the people of the Territory in adopting, advisedly employed the broader and less liberal language. In this connection it is noticeable that practically all state constitutions (in fact all but that of Kentucky, we believe) which provide for the referendum likewise provide some form of the initiative. These two reserved powers seem, as to nearly all states, to go hand in hand. Although proposed and its adoption urged by the minority representation in the Constitutional Convention, as the official proceedings of the Convention disclose, no provision was made for the initiation of legislation by the people. This is significant and furnishes further proof that our constitution makers were imbued with an undeniably conservative idea as to the desirability of, or necessity for, either the initiative or referendum.

The difference in the language of our referendum provision from that found in the constitutions of most other states renders of doubtful value decisions from those jurisdictions attaching referable character to a given enactment and lends greater persuasiveness to their decisions denying it such character. For, it must be obvious to all that many laws could reasonably provide for the preservation of the public peace, health or safety, without being deemed necessary for their immediate preservation. On the other hand, as observed in the opinion by Mr. Justice Sadler in Todd v. Tierney, it would be difficult to conceive of a law necessary for the preservation of the public peace, health or safety which did not provide therefor.

This brings us then to a consideration of the decisive question whether the act does reasonably provide for the preservation of the public peace, health or safety. If it provides for the preservation of any one, that is enough. We need not attempt to relate this act to the public peace or to the public safety, though either conceivably could be in some degree affected by a denial of the relief afforded by the act. Obviously, however, it bears a more direct relationship to the public health. And we find no difficulty in sensing a valid relationship to the public health in a law proposing to raise funds with which to provide approximately five thousand needy aged in the State "a reasonable subsistence compatible with decency and health". 1941 Comp., § 73-111.

Cold and hunger have been twin enemies of the human race from the days of cave man existence. Since the dawn of time they have contributed more to the discomfort, anxiety and peril of human existence than any other forces with which man has had to contend. We utter a truism when we say that food, clothing and shelter are essential to health. None, then, can gainsay the fact that the health of the five thousand needy aged of the State is imperiled if they have not food enough to repel hunger nor clothing and shelter adequate to withstand exposure. Medical research and scientific discovery have made it common knowledge that the ill clad and under-nourished of any age group become the prey of every disease the "human flesh is heir to". When, therefore, to the under-nourished body are added the natural infirmities of old age, there arises a susceptibility to disease, communicable or otherwise, higher than that in any other class of our citizenry. We cannot ignore the fact that the health of all the people of the state becomes involved if the bodies of five thousand needy aged, spread geographically over the entire State, through lowered resistance incident to under-nourishment, are made ready receptacles for the multiple germ initiated diseases which attack the people of all communities.

We do not reject the idea that provision for the health of the sixty-five year and above age group, standing alone, might become a proper matter of state concern. The fact that a measure does not affect all or even a major portion of the people of the State does not deny it character as a public health measure. Cf. Arnold v. Board of Barber Examiners, 45 N.M. 57, 109 P.2d 779; Bunting v. State of Oregon, 243 U.S. 426, 37 S. Ct. 435, 61 L. Ed. 830, Ann.Cas. 1918A, 1043. A large majority of the people of the State live on farms and ranches and would not be directly affected by a law requiring installation of sewers in towns and cities, yet one could scarcely deny character to such a measure as being in the interest of the public health nor successfully challenge it as providing for the preservation thereof. But, as indicated, our appraisal of this act as a public health measure need not rest alone on the health status of the five thousand destitute aged, considered to themselves. When we recognize their high susceptibility to contagious and infectious diseases, by reason of an under-nourished condition, and face the likelihood that many of their number will contract such diseases, thus becoming sources of infection and danger to all within the community where each resides, the weight of this consideration added to that of the imperiled health of each of them from lack of adequate food and clothing, can leave little doubt that the measure does have a real and substantial relationship to the public health.

All that is required to bring the questioned law within the proper sphere for an exercise of the police power is that it bear a valid relationship, as we have expressed it, to some permissible object for the exercise of that power. In other states, courts have said the law must have "a real and substantial relation" to such objects, State v. Nelson,126 Conn. 412, 11 A.2d 856, 860; or, an "ascertainable relevancy" thereto, State Racing Commission v. Latonia Agricultural Ass'n, 136 Ky. 173, 123 S.W. 681, 25 L.R.A., N.S., 905. In Mitchell v. City of Roswell, 45 N.M. 92, 111 P.2d 41, 44, we said: "It is the policy of the courts to uphold regulations intended to protect the public health, unless it is plain that they have no real relation to the object for which ostensibly they were enacted, and prima facie they are reasonable."

The relationship of hours of labor for women to health was thought by our country's highest court close enough to uphold as a proper exercise of the police power a state law fixing maximum hours. Muller v. State of Oregon, 208 U.S. 412, 28 S. Ct. 324,52 L. Ed. 551, 13 Ann.Cas. 957. A similar law fixing maximum hours for men employed in certain industries was sustained as a health measure a few years later. Bunting v. State of Oregon, supra. In State v. Henry, 37 N.M. 536, 25 P.2d 204, 90 A.L.R. 805, we indicated the view that if the statute involved were legislatively labeled, as was the Oregon statute in the Bunting case, as a health measure, and had our approval as such, the federal tribunal would not invoke the distinctions between ten hours and eight hours and between manufacturing and mercantile establishments, to strike it down. Again, in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703, 108 A.L.R. 1330, the health factor was thought sufficiently related to justify the United States Supreme Court in sustaining a Washington statute which authorized the fixing of minimum wages for women. In the majority opinion which overrules Adkins v. Children's Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785, 24 A.L.R. 1238, Mr. Chief Justice Hughes quotes approvingly from the language of Mr. Justice Holmes' opinion in the Adkins case as follows [300 U.S. 379, 57 S. Ct. 584, 81 L. Ed. 703, 108 A.L.R. 1330]: "This statute does not compel anybody to pay anything. It simply forbids employment at rates below those fixed as the minimum requirement of health and right living." The opinion in the West Coast Hotel Co. case continues: "What can be closer to the public interest than the health of women and their protection from unscrupulous and overreaching employers? And if the protection of women is a legitimate end of the exercise of state power, how can it be said that the requirement of the payment of a minimum wage fairly fixed in order to meet the very necessities of existence is not an admissible means to that end?" It would indeed be a strange logic which can discover a proper health factor in the amount of wages received by those of a class able and strong enough to work and yet fail to sense it in a measure providing a small sustenance to those who, through adversity and advancing age, have no wage at all nor other income.

In the well reasoned case of Housing Authority v. Dockweiler,14 Cal. 2d 437, 94 P.2d 794, 801, the court had no difficulty in relating the matter of slum-clearance to the public health. In supporting the constitutionality of the California slum-clearance act it is said: "Through the projects contemplated by the above statutes elimination of insanitary and unhealthy conditions is brought about by clearing premises of unfit dwelling buildings, and removing the degrading and unwholesome conditions existing in such surroundings, thereby reducing or preventing disease and crime and aiding and benefiting the health, morals and safety of the community." (Emphasis ours.) At this point we are moved to inquire whether an unsanitary or unfit habitation is more degrading and unwholesome, and thus offers greater possibilities as an incubator of disease, than a hungry and unsanitary body of a human being? The question supplies its own answer.

A fair analogy in this respect may be found in the numerous decisions upholding as constitutional like slum clearing statutes. Such statutes are of comparatively recent origin and most of them have been enacted subsequent to and in the light of the United States Housing Act of 1937, 42 U.S.C.A. §§ 1401-1430. The act authorized the employment of the nation's funds and credit to assist the several states and their political subdivisions "to alleviate present and recurring unemployment and to remedy the unsafe and insanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income, in rural or urban communities, that are injurious to the health, safety, and morals of the citizens of the Nation". The numerous state acts thereafter adopted "dovetail into the United States Housing Act". Chapman v. Huntington, W. Va., Housing Authority et al., 121 W. Va. 319, 3 S.E.2d 502, 507. In the case of Housing Authority v. Dockweiler, supra, it is observed that of some fifteen states that had been called upon up to that time to pass upon the constitutionality of slum-clearance acts of their respective states, the legislation had been upheld in each of them without exception, upon the ground, generally, as being in support of public health, safety, and morals.

Only one decision, so far as our research discloses, has declared itself on the direct question of the relationship of old age assistance to the public health. It is the case of Los Angeles County v. La Fuente, 20 Cal. 2d 870, 129 P.2d 378, 382, where the court had before it the old age security law, whose constitutionality was assailed in several respects. It apparently was taken for granted in that case that the proper relationship between old age assistance and the public health existed for the court said: "The care and relief of aged persons who are in need clearly may be a special matter of state concern in promoting public health and welfare, * * *."

In Perley v. State of North Carolina, 249 U.S. 510,39 S. Ct. 357, 358, 63 L. Ed. 735, the reasonableness of a police measure requiring the burning or removal of debris from cutover timber on water sheds was assailed. The litter remaining was "absolutely harmless", it was urged. The argument did not prevail for, as a source of danger, the court considered that the litter "may become dry * * * and therefore become a source of fires and the perils and damage of fires."

The temptation to steal held out to the moral detriment of children of tender years by the existence of places for the ready sale of junk was thought sufficient to sustain, as a police measure, a law or ordinance preventing the purchase of junk from children under sixteen years of age. People v. McGuire,113 A.D. 631, 99 N.Y.S. 91.

While it is true the question of exemption from referendum was not directly presented in the foregoing decisions, this fact in no way weakens their persuasiveness. Certainly, it may not be successfully argued that there is one test for determining the constitutionality of a statute as representing, for instance, a reasonable exercise of the police power as involved in the referendum clause of our Constitution and still another for deciding the referability of the same measure. The reason is obvious since, if the constitutional validity of the legislation be sustained as a reasonable exercise of such police power, its nonreferable character is thereby automatically and indubitably established.

After all it was for the Legislature to appraise the danger apprehended and move to meet it. Within constitutional bounds, the propriety, wisdom, necessity, utility and expediency of legislation are matters for its determination. 11 A.Jur. 804; In re Proposed Middle Rio Grande Conservancy District, 31 N.M. 188,242 P. 683.

Nor is it essential that a present necessity should exist before the legislature moves under the police power. It may act to prevent apprehended dangers as well as to control those already existing. Gutierrez v. Middle Rio Grande Conservancy District, 34 N.M. 346, 282 P. 1, 70 A.L.R. 1261; Gitlow v. People of State of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138.

The suggestion that old age assistance furnished through the Department of Public Welfare is a "pension" overlooks the essential nature of a pension. It is a periodical allowance or bounty for past services rendered to the public. Price v. Society for Savings, 64 Conn. 362, 30 A. 139, 42 Am. St. Rep. 198. The grants for old age assistance have none of the earmarks of a pension unless it be the periodical method of their payment.

It is also suggested that this act partakes of the character of social legislation, albeit, doubtless, commendable social legislation. If conceded, this in no manner detracts from its character as a health measure. Social and health legislation often are so closely related that in some cases it would be difficult to discover the line of demarcation between them.

We are unable to say that, within the proper exercise of its functions, the Legislature could not have sensed the dangers to the public health which it sought to forestall and prevent by enactment of the measure in question. If the issue were doubtful it would be our duty to resolve it in favor of the legislative determination and constitutionality. In re Southern Pac. Co.,37 N.M. 11, 16 P.2d 402; State ex rel. Hannah v. Armijo, 38 N.M. 73,28 P.2d 511; People v. Witte, 315 Ill. 282, 146 N.E. 178, 37 A.L.R. 672; Bonnett v. Vallier, 136 Wis. 193, 116 N.W. 885, 17 L.R.A., N.S., 486, 128 Am. St. Rep. 1061.

Wholly aside from the morality of the philosophy which, although hunger of the needy aged continues, would deny legislative power to make adequate provision to avert until disease actually had invaded their ranks in force, we think a realistic view will uphold the power to move to forestall such a danger. A like philosophy carried to logical conclusion would deny character as a health measure to legislation authorizing the cleaning up of swampy lagoons, infested by malaria-bearing mosquitos, until malaria had reached epidemic state. Kinnie v. Bare, 68 Mich. 625, 36 N.W. 672; Billings Sugar Co. v. Fish,40 Mont. 256, 106 P. 565.

Nor is it our idea that the people in adopting our Constitution were more jealous of the privilege of debating under the then novel reserved power, for instance, conflicting theories of how to care for the poor than they were concerned in giving into the hands of their duly elected representatives under the exceptions therefrom freedom to judge and deal with safety measures such as this. After all, we have a representative form of government. The delegates to our Constitutional Convention were schooled by tradition in representative government. At the time it convened the initiative and referendum were largely new and untried. The convention moved cautiously in the matter, rejecting the initiative altogether and giving us the referendum carrying a broader exemption in the safety clause than is to be found in any other state constitution. There was nothing covert or concealed in the matter. On the contrary, the question was widely publicized in the press and from the platform all over the State and the Constitution was adopted with a full knowledge by all of just what it did and did not have on the subject.

It discloses a misconception of the true nature of the power reserved by Constitution, Article 4, § 1, to assert that under it the people become a part of the legislature. All and plenary legislative power is vested in "a senate and house of representatives" with only the power reserved "to disapprove, suspend and annul any law enacted by the legislature" — a veto power closely akin to that of the Governor with the difference that his is general over all legislation and that of the people is conditional as limited by the Constitution. The reserved power, as will be noted, is tied in very closely by the Constitution to the exercise of the police power.

The police power "is not a rule; it is an evolution." 28 R.C.L. 742, § 36; State v. Mountain Timber Co., 75 Wash. 581,135 P. 645, L.R.A. 1917D, 10. Laws providing for preservation of the public peace, health and safety are essentially police measures and represent an exercise of this inherent power. It is the broadest power possessed by governments and rests fundamentally on the ancient maxim "salus populi est suprema lex". Traditionally, it was limited in its operation to laws concerned with the public health, safety and morals. This historic field for its operation now has been extended to embrace laws for the promotion of the general welfare, prosperity, comfort and convenience. Chicago, B. Q.R. Co. v. State of Illinois,200 U.S. 561, 26 S. Ct. 341, 50 L. Ed. 596, 4 Ann.Cas. 1175; Nashville, C. St. L.R. Co. v. Walters, 294 U.S. 405, 55 S. Ct. 486,79 L. Ed. 949; State v. J.M. Seney Co., 134 Md. 437, 107 A. 189; McElhone v. Geror, 207 Minn. 580, 292 N.W. 414; Pepsodent Co. v. Krauss Co., 200 La. 959, 9 So. 2d 303. However, when the framers of our Constitution came to write the language of this exemption in the referendum clause, they seem to have confined its scope to laws falling under a traditional definition of the police power. Whether this be so or not, it is noteworthy that the law here involved, one concerned with the public health, falls readily into place under the narrower traditional concept of the police power.

If it seem desirable that a larger reservation of power be lodged in the people under which the popular veto of legislation may be exercised, the remedy is not through the courts, whose only function is to construe the language actually employed, but rather through an amendment to the Constitution using language of similar import to that urged upon, but rejected by, the constitution makers in 1910. The addition of the words "necessary" or "immediate preservation", so commonly employed in other constitutions, undoubtedly would broaden the scope of the reserved power.

The Legislature, in enacting the questioned law, moved to supply funds for the Department of Public Welfare with which it might provide old age assistance to the destitute aged. It finds "extreme need now existent among the needy aged" and an inadequacy of funds to "administer proper relief to this unfortunate element of our population". True, this act says nothing about "health", but the funds are for the exclusive use of the Department of Public Welfare in extending old age assistance and the Public Welfare Act more than once declares a fundamental purpose of providing "a reasonable subsistence compatible with decency and health". 1941 Comp., §§ 73-111 and 73-115. The two statutes as respects old age assistance deal with the same subject and to such extent are to be considered in pari materia. The fact that the later statute makes no reference to the former can make no difference since the Legislature must be presumed to have had the former statute in mind without expressly referring to it. State ex rel. Red River Valley Co. v. District Court of the Fourth Judicial District, 39 N.M. 523, 51 P.2d 239.

While the courts are not bound by legislative declarations in matters of this kind, they are entitled to great weight and unless patently untrue or absurd, they will be respected. Arnold v. Board of Barber Examiners supra; State ex rel. Short v. Hinkle, supra; Cf. Stevenson v. Colgan, 91 Cal. 649, 27 P. 1089, 14 L.R.A. 459, 25 Am. St. Rep. 230. We accord the Legislature a broad field of discrimination in classifying for purposes of legislation. Davy v. McNeill, 31 N.M. 7, 240 P. 482; Hutcheson v. Atherton, 44 N.M. 144, 99 P.2d 462; State v. Pate, 47 N.M. 182,138 P.2d 1006. We see no good purpose in holding it to a stricter rule in deciding what is reasonable provision for the public health than in determining what is reasonable classification for purposes of Legislation.

Nor is it for the court to say that because funds claimed to be now rapidly accumulating from savings by the executive department of the state government might be used to provide for this class of the populace, as contended for by relator, that the legislation in question might serve no necessary purpose. It is for the legislative branch of the goverment to determine to what source it will look for such funds; it is not for this court to say whether it has gone to the most appropriate source therefor. Moreover, the question arises whether special legislative authority might not be required to render available for old age assistance any of such accumulated savings now in the State treasury.

Confronted with the fact that the pittance doled out to the needy aged of the State as grants was rapidly dwindling due to the rising cost of living, to be further greatly reduced by a substantial loss in revenues earmarked for such relief, the Legislature acted to meet the situation so as to provide funds with which such aged persons might maintain themselves above a bare subsistence level. Funds for our needy aged whose power to resist disease is fast ebbing incident to the debilities of old age, and sufficient in amount to provide "a reasonable subsistence compatible with decency and health" — such seems the end and the aim of the questioned act. It is not our province to declare the Legislature acted unwisely. Perhaps it did not wish to have it said that such help as it rendered had proved too little and too late. We do not think a logical relationship between the questioned act and the public health is wanting. Los Angeles County v. La Fuente, supra; Arnold v. Board of Barber Examiners, supra; Bunting v. State of Oregon, supra; West Coast Hotel Co. v. Parrish, supra; Muller v. State of Oregon, supra; Housing Authority v. Dockweiler, supra.

Holding as we do, that the act provides for the preservation of the public health, it becomes unnecessary to determine whether the referendum petitions tendered for filing on the ninety-first day following adjournment of the Legislature were seasonably presented for filing.

It follows from what has been said that the alternative writ of mandamus was improvidently issued and should be discharged.

It is so ordered.

MABRY, BRICE, and THREET, JJ., concur.