State Ex Rel. Haragan v. Harris

1998 NMSC 043, 968 P.2d 1173, 126 N.M. 310

• Court: New Mexico Supreme Court
• Decided: October 21, 1998
• Docket: 24365
• Status: Published

Opinions

OPINION

McKINNON, Justice.

{1} Petitioners are elected officers from various counties who happened to be at midterm on the effective date of a salary increase. They, along with all elected county officers in their respective counties, were granted a salary increase by their local county commissions in accordance with NMSA 1978, § 4-44-12.3 (1991). All of the pay raises were to be effective on January 1, 1995, without regard to whether an officer was in midterm or starting a new term. See id. Because many elected county officers serve staggered terms, this effective date fell in the midst of a term of office for some officers, like Petitioners. Respondents, the Secretary of the New Mexico Department of Finance and Administration and the Director of the Local Government Division of that department (collectively, the Department), refused to approve county budget amounts for the raises of those county officers in midterm, citing Article IV Section 27 of the New Mexico Constitution. The effect of this action was to deny to Petitioners and about 165 others ¹ the salary increases their counties had decided were merited and due, while their colleagues who happened to begin new terms on January 1, 1995, were granted increases in compensation.

{2} Petitioners challenged the Department’s action in district court by seeking declaratory judgment and a writ of mandamus compelling the Department to approve the midterm salary increases. After trying the case on stipulated facts, the district court entered declaratory judgment in favor of Petitioners and issued the writ of mandamus ordering the Department to approve all county budgets which granted salary increases for midterm officers. The Department appealed, and the Court of Appeals certified the question to this Court.

{3} We now reverse the district court’s judgment. We hold that the midterm increases violate Article IV Section 27 of the New Mexico Constitution, which provides that compensation for public officers shall not “be increased or diminished during [her or] his term in office, except as otherwise provided in this constitution.” N.M. Const, art. IV, § 27.

DISCUSSION

{4} At issue in this case is the relationship between two state constitutional provisions. Article X Section 1 provides:

The legislature shall at its first session classify the counties and fix salaries for all county officers, which shall also apply to those elected at the first election under this constitution. And no county officer shall receive to [her or] his own use any fees or emoluments other than the annual salary provided by law, and all fees earned by any officer shall be by [her or] him collected and paid into the treasury of the county.

N.M. Const, art. X, § 1 (emphasis added). Article IV Section 27 provides:

No law shall be enacted giving any extra compensation to any public officer, servant, agent or contractor after services are rendered or contract made; nor shall the compensation of any officer be increased or diminished during [her or] his term of office, except as otherwise provided in this constitution.

N.M. Const, art. IV, § 27 (emphasis added). We first indicate whether the “county officers” named in Article X Section 1 are “public officers” as that term is used in Article IV Section 27. In State ex rel. Baca v. Montoya, 20 N.M. 104, 108-09, 146 P. 956, 957 (1915), this Court held that in the absence of an appropriation from the legislature, an appointed deputy county assessor could not be paid a salary because he was a “public officer” within the meaning of Article X Section 1. See also Pollack v. Montoya, 55 N.M. 390, 392-95, 234 P.2d 336, 338-39 (1951). Clearly, all of the elected county officers here are public officers.

A. ARTICLE X SECTION 1 CONTAINS NO LANGUAGE THAT WOULD EXPRESSLY OR IMPLIEDLY “PROVIDE OTHERWISE” THAN THE RULE IN ARTICLE IV SECTION 27.

{5} Article IV Section 27 states a general rule that salary changes shall not become effective before the expiration of current terms. That general rule also accommodates an exception: changes effective in midterm can occur if a provision in the Constitution “provides otherwise.” Article IV Section 27 thus requires us to examine the particular constitutional provision (not, as the dissent suggests, a legislative enactment) and to determine whether it is governed by the general rule or the exception.

{6} There is no language in Article X Section 1 that provides for an exception to the prohibition in Article IV Section 27. The first sentence of Article X Section 1 does grant the Legislature the power to set county officers’ salaries: “The [Legislature shall at its first session classify the counties and fix salaries for all county officers, which shall also apply to those elected at the first election under this constitution.” N.M. Const, art. X, § 1 (emphasis added). However, there is no expression or implication in this language that salary changes can be made effective before the expiration of current terms. Cf. Blackburn v. Board of County Comm’rs, 67 Wyo. 494, 226 P.2d 784, 787-88 (Wyo.1951) (“[N]either by express provision nor by implication does [the Wyoming constitutional provision analogous to Article X Section 1] say that salaries of county officials could be increased or diminished after their election or appointment and during their term of service.”). A constitutional provision that grants salary authority to the legislature, without more, must be subject to the general rule. This language appears to be exactly the kind of grant of legislative power that Article IV Section 27 was designed to limit. See Board of Comm’rs v. Henry, 33 Okla. 210, 126 P. 761, 762-63 (Okla.1912).

{7} Petitioners argue, and the dissent apparently agrees, that the language in the second sentence of Article X Section 1, “no county officer shall receive ... any fees or emoluments other than the annual salary provided by law,” implicitly grants “plenary, unfettered power to the legislature to set salaries.” They conclude that exercise of such power is an exception to the Article IV Section 27 bar on midterm changes. We cannot agree. By this language the framers implicitly acknowledged the power of the Legislature to set the salaries of county officials; however, nothing in this language expressly or impliedly authorizes salary increases to be made effective before the expiration of current terms. Further, Article X Section 1 furnishes no guidance on ivhen salary changes may be made, which also supports our view that the general rule applies. See Blackburn, 226 P.2d at 788 (“Indeed, there is nothing in the language of [the Wyoming analog of Article X Section 1] ... which could in a fair interpretation of that language convey to the ordinary mind of the electorate that anything was intended which would interfere with the prohibition as to the alteration of salaries embodied in the phraseology of [the Wyoming analog of Article IV Section 27].”). We simply cannot read this language as permitting salary increases for county officers to be effective before the expiration of current terms.²

{8} The purpose of the language in Article X Section 1 on which Petitioners rely is to replace the fee-based system of compensation operated by the counties prior to statehood with a salary-based system controlled by the Legislature. See State ex rel. Gilbert v. Board of Comm’rs, 29 N.M. 209, 213, 222 P. 654, 655 (1924); cf. Thomas J. Mabry, New Mexico’s Constitution in the Making — Reminiscences of 1910, 19 N.M. Hist. Rev. 168, 173 (1943) (At the time the state constitution was drafted in 1910 “[b]oth parties were united in its purpose to end the pernicious and extravagant fee system for county officers.”). While this provision undoubtably required the Legislature to shoulder more authority in determining the compensation afforded to county officers, it still shared much in common with the purpose of Article IV Section 27. Both provisions are intended to preclude arbitrary variations in compensation that might “harass and cripple the [county] officer by reducing [her or] his compensation during [her or] his service [or] cause the bestowal of an unmerited increase.” Gilbert, 29 N.M. at 214, 222 P. at 655. In light of this shared purpose, we doubt that the framers intended Article X Section 1 to allow the Legislature to cause precisely the kind of variations in compensation for county officers that the abolition of the fee-based system of compensation was designed to eliminate.

{9} The fact that the Legislature delegated the salary decision, within limits, to the counties in Section 4-44-12.3 does not alter our conclusion. Both the abolition of the fee-based system of compensation and the rule against midterm salary increases are intended to prevent fluctuations in compensation that result from political pressure and conflicts of interest. See Gilbert, 29 N.M. at 214, 222 P. at 655 (framers intended to substitute a salary system of compensation for the fee basis that had existed); cf. Blackburn, 226 P.2d at 792 (“The primary reason that so many states have provisions against the practice (of altering a public officer’s compensation by legislative enactment during [her or] his present term) is to relieve the pressure brought to bear upon lawmakers to grant increases.” (quoting Russell R. Storm, Jr., Note, Constitutional Law — Rights of Public Officials in Nebraska to Changes in Compensation During Terms of Office, 30 Neb. L.Rev. 112, 114-15 (1950))). We are not persuaded that having the counties instead of the Legislature set the salaries for county officials relieves the pressures and conflicts to increase salaries noted above. On the contrary, such a delegation of power may have the opposite effect where, as here, the statute allows some county officers to vote on their own salary increases. We believe this is the kind of scenario that the framers sought to avoid by replacing the fee-based system of compensation, for county officers with a salary-based system, and by building in to the constitution a system whereby there is to be one election for any county position before salary changes for that position become effective.

B. GILBERT HOLDS THAT LEGISLATION PASSED UNDER ARTICLE X SECTION 1 IS SUBJECT TO THE PROHIBITION IN ARTICLE IV SECTION 27

{10} In Gilbert, our Court referred to both Article IV Section 27 and Article X Section 1 in holding that a legislative reduction of the compensation of elected county officers at midterm was violative of Article IV Section 27. Gilbert, 29 N.M. at 211, 213, 219, 222 P. at 654, 655. There, the Legislature established five classes of counties based on the assessed valuation of property in the county, and acted under its Article X Section 1 authority to tie the compensation received by elected county officers to this classification system. 29 N.M. at 210-11, 222 P. at 655. The operation of the classification system in Gilbert diminished the compensation received by elected county officers during their term of office. Id. The Gilbert court held that to the extent the legislation resulted in midterm compensation changes, it was unconstitutional since Article TV Section 27 “expressly prohibits the compensation of any officer being increased or diminished during his [or her] term of office.” Id. at 213, 219, 222 P. at 655, 657. In sum, Gilbert held that legislation setting salaries of county officers passed pursuant to Article X Section 1 is subject to Article IV Section 27.

{11} The issue presented here is essentially the same, although it involves an increase rather than a decrease in compensation. The Legislature acted under, its Article X Section 1 authority to enact NMSA 1978, § 4-44-12.3(B), which delegated 'to the various counties the authority to set salary increases for elected officers by a simple majority vote of the respective boards of county commissioners. However, the Legislature also provided “that no salary increases shall take effect until the first day of the term of the first elected county official who takes office after the date that salary increase is approved, at which time the salary increase shall take effect for all county-elected officials.” NMSA 1978, § 4-44-12.3(B) (1991) (emphasis added). Because of staggered terms, the effective date chosen by the Legislature happened to fall, for certain officials like Petitioners, in midterm. Under Gilbert, these midterm changes are unconstitutional as being violative of Article IV Section 27.

{12} We see no compelling reason to overrule Gilbert. We believe that to do so would be to ignore the presence and meaning of the rather clear language in Article IV Section 27. We cannot say that the Gilbert Court’s interpretation of this section is “no more than a remnant of an abandoned doctrine!} or that its] premises of fact have so changed as to render its central holding irrelevant or unjustifiable.” Cf. Planned Parenthood v. Casey, 505 U.S. 833, 855, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). If Petitioners wish to demonstrate that the policies served by these provisions are no longer necessary, as the dissent contends, and show that concerns of the framers and the Gilbert Court are no longer present, they should address their arguments to the Legislature and the electorate. We are not the appropriate forum to amend the Constitution.

{13}. We acknowledge the inequity in our result. The Legislature, by enacting Section 4-44-12.3, attempted to mitigate the disparate impact of salary raises on county officers who now serve staggered terms under the 1993 amendments to Article X Section 2. However, the Legislature does not have the constitutional authority to “provide otherwise.” Article IV Section 27 dictates that such exceptions must come from elsewhere in' “this constitution .” The remedy that Petitioners seek is unavailable through statute or through this Court. We simply are bound by constitutional provisions and the reasonable interpretations of those provisions. The Constitution must be changed to achieve Petitioners’ desired result.

CONCLUSION

{14} The constitutional language is clear. Neither the text nor the purpose of Article X Section 1 supports Petitioners’ interpretation of a grant of “plenary, unfettered power to the Legislature to set salaries” of county officers. There is no .grant by Article X Section 1 to set an annual salary contrary to Article IV Section 27. Those salary increases passed under NMSA 1978, § 4 — 14-12.3 (1991) that were effective midterm are therefore unconstitutional. We reverse and remand to the district court with instructions to dismiss the complaint with prejudice.

{15} IT IS SO ORDERED.

FRANCHINI, C.J. and MINZNER, J., concur.

1 . At oral argument, Petitioners stated that the Department's action affected about 165 county officers, all of whom were in midterm on the effective date of the salary increases.

2 . The dissent contends that our interpretation of Article IV Section 27 renders its "otherwise provided” language superfluous. We disagree. Our Constitution contains no less than ten provisions setting the compensation for various public officers, and no two contain identical language. It may very well be that the exception does apply to other officials; however, that issue is not before us.