State v. Graham

I regret that I am unable to agree with the decision of my associates.

The language of a Constitution is to be construed in its popular sense. In Crick v. Rash, 190 Ky. 820, 229, S.W. 63, it is said:

"The rule for the interpretation of Constitutions, as universally applied, is that the language therein is to receive its plain and ordinarily understood meaning by the generality of the people. Constitutions are many times actually, and always in theory, adopted by the people, and their language is presumed to contain the meaning which the people generally attribute to the words employed. In this respect the rules for the interpretation of Constitutions differ from the ones applied in the construction of statutes."

See, also. State v. Lister, 91 Wash. 9, 156 p. 858, and Cooley's Constitutional Limitations, p. 92. Applying these well-settled rules to the present case, what is the meaning of the phrase "so enacted" in the Eleventh Amendment to our Constitution? The majority refer to chapter 153. "An act authorizing and directing boards of county commissioners to levy taxes for each of the years 1921, 1922 and 1923 for construction and improvement of public highways and to meet dollar for dollar allotments to the state of federal funds under the Federal Aid Road Act, and for other purposes," and chapter 167 of the same legislative session (1921) "An act authorizing the issue and sale of state highway bonds in the sum of two million dollars to provide funds for the construction and improvement of state highways and to enable the state to meet and secure allotments of federal funds to aid in construction and improvements of roads: providing a tax levy for payment of interest and principal of said bonds."

It is to be noted that each of those acts was approved on March 12, 1921, which was the day upon which the Legislature adjourned. It appears that both acts were house bills, anl chapter 167 bears an earlier number than chapter 153. Section 10 of chapter 167 provides that:

"This act shall take effect on the first day of December 1921, in case the amendment to the Constitution of the state of New Mexico proposed by the Fifth Legislature, providing that laws enacted authorizing the issue and sale of bonds as provided by this act shall take effect without submitting them to the electors of the state, shall be ratified by a majority of the electors voting thereon at the special election to be held on constitutional amendments. If such amendment should not be ratified then this act shall be submitted to the qualified electors of this state," etc. "Provided, that no bonds ordebentures shall be issued or sold under this act until the people of New Mexico shall have voted upon and ratified a constitutional amendment which will permit this act to become effective."

So, it seems that the amendment in question had already been proposed by the Fifth Legislature prior to the enactment of chapter 167. If it is true that the amendment was proposed prior to the enactment of either chapters 153 or 167, the argument of the majority loses some of its force. I presume that a constitutional amendment could be proposed, having for its purpose the ratification of acts done by the Legislature after such proposed amendment was introduced and authorized by the Legislature. Under such circumstances, the Legislature proposing the amendment would not know whether the Legislature would direct that the state highway debentures should be paid through the anticipation of the collection of revenues from motor vehicle licenses, or through revenues provided by law for the state road fund.

By the rules of interpretation, "and" may be, and often should be, read as "or" according to the context. The majority say:

"Chapter 153, however, authorizes such debendtures, not ``to anticipate the collection of revenues from motor vehicle licenses,' but to anticipate the proceeds of tax levies; and, so, if contemplated at all by the amendment, included only in the expression ``other revenues provided by law for the state road fund.' So we find that the exact meaning of the words employed cannot be relied upon in interpreting this constitutional amendment."

I have no reason to doubt that chapter 153 was contemplated by the amendment. This court so held in Lopez v. State Highway Commission, 27 N.M. 300, 201 P. 1050. That case was decided on September 24, 1921, only four days after the election at which the Eleventh Amendment was adopted. If any significance is to be attached to the historical element, it is assumed that the court at that time was equipped with full knowledge of the history of the measures. Some of the same questions were raised in that case as are raised in this, and the court's conclusion was that chapter 153 was validated and ratified by the adoption of the amendment. The court there thought that the language of the amendment did aptly and correctly describe chapter 153, enacted by the Fifth Legislature. If the court had been of the opinion that the debentures therein provided for must be paid by anticipating "the collection of revenues from motor vehicles licenses and other revenues provided by law for the state road fund." it would doubtless have concluded that such words did not aptly or correctly describe said chapter 153.

It seems reasonable that the Legislature by the proposed amendment intended to validate, ratify, and cause to "take effect" the laws on the subject enacted by the Fifth Legislature, whether they authorized state highway bonds or state highway debentures, to anticipate the collection of revenues from motor vehicle licenses or (and) other revenues provided by law for the state road fund. As the majority have pointed out, both methods had previously been in use, and there is no reason to suppose that the Legislature intended the language of the amendment to require that both must be used at the same time and in the same act.

The word "so" is defined by the Lexicographers as:

"In that manner; in such manner."

"(c) In the manner previously noted or understood."

"5. In such way as aforesaid; in the aforesaid state or condition; the same; a pronominal adverb used especially for the sake of avoiding repetion." Century Dictionary.

See, also, Words and Phrases, First and Second Series.

My brethren agree that the Attorney General's contention that the term "so enacted," referring to debentures, means enacted just as the state bond provision was enacted; that is, by the Fifth Legislature, is an admissible and perhaps preferrable conclusion, if grammatical construction only is to be considered, but they say when we find there have been no laws "so enacted" another interpretation must be sought. It would seem that such argument proceeds partly upon the theory that the amendment was proposed after the Fifth Legislature had finished with its enactments and referred therefore to what had been enacted. This does not necessarily follow, and the contrary seems likely.

The majority say:

"The word ``so' may simply refer to ``laws enacted by the * * * Legislature.'"

This seems hardly likely, because the Legislature is the only body which can enact laws .and there would be no reason for using the word "so" if the reference were simply to the Legislature.

The majority think that this conclusion is strengthened by a consideration of the fact that the method employed to effectuate the purpose was that of amending the Constitution, and that unless permanent and future application was desired, the Constitution required no amendment, a mere popular ratification of the particular act was all that was needed. I do not so understand it. Section 8 of article 9 of the Constitution provided a debt limitation of 1 per centum of the assessed valuation of all the property subject to taxation in the state. Apparently it was contemplated that the enactments of the Fifth Legislature for state highway bonds and state highway debentures would exceed these debt limitations, and therefore the constitutional amendment was necessary in order to validate such enactments.

The majority think that it is not unreasonable that the people should be willing to relinquish control over anticipatory debentures while retaining control over bonds, for the reason that the former are short-time obligations, to be retired from revenues already assured, and the latter being real and permanent addition to the public debt. This is speculation. There is nothing in the amendment which limits the length of time which either form of indebtedness is to run. If the Legislature could create an irrevocable contract for the payment of highway debentures from the revenues from motor vehicle licenses and (or) other revenues provided by law for the state road fund for a period of five years, there is nothing in the amendment which would prevent the Legislature from making such a contract to run for ten years or a longer period.

The word "debenture" is defined as:

"An instrument in the nature of a bond, given as an acknowledgment of debt, and providing for repayment out of some specified fund or source of income." Standard Dictionary.

It seems probable that the amendment under consideration and chapter 167 and chapter 153 were all a part of one plan for raising revenues to meet the federal aid funds. It is to be noted that in section 10 of chapter 167 the Legislature spoke of bonds or debentures as being in the same class; that is, they used the words interchangeably in providing that no such bonds ordebentures should be issued or sold under that act until the people of New Mexico had voted upon and ratified the constitutional amendment.

It seems to me that the Legislature was of the opinion that the constitutional amendment was necessary in order to validate both state highway bonds and state highway debentures to be issued without submission to the qualified electors and in excess of the 1 per centum limitation even with such submission, regardless of the source from which the money was to be derived to pay them, in the absence of a vote of the electors, and in the event of exceeding the debt limitations therefore provided.

This court seemed to be of the opinion in 1921, in Lopez v. State Highway Commission, supra, that the amendment was of a validating and ratifying character, and for that reason found it unnecessary to consider the assault made on the debentures. Such seems a reasonable conclusion. In the proposed amendment is associated together the state highway bonds and the state highway debentures in taking them out of the 1 per per cent debt limitation of section 8. art. 9, "notwithstanding that the total indebtedness of the state may thereby temporarily exceed one per centum of the assessed valuation of all the property subject to taxation in the state." The use of the word "temporarily" indicates that the amendment purported to deal with the road-financing program of the Fifth Legislature, and not the establishment of a permanent policy.

The Legislature also associated the two forms of securities together in respect to dispensing with the requirement of submission to the electors for approval. It seems plain that as to state highway bonds the amendment contemplated those authorized by the fifth Legislature, and I am unable to find plain and clear reasons for separating what the amendment by language as ordinarily understood associated together; and I am unwilling, by interpretation, to hold that the amendment established a new constitutional policy of a permanent character as to sales of highway debentures in anticipation of the collection of revenues belonging to the road fund. It seems to me that the constitutional amendment was proposed on the basis of the laws which might be enacted by the Fifth Legislature and was adopted by the people on the basis of what had been done, and that the electors were not committing themselves to a permanent policy of relinquishing control over the public debt, even thought such debt is to be paid out of excise taxes or revenues to be derived from special levies or taxes, to anticipate the payment of the debt.