GIBBANY V. FORD, 1924-NMSC-038, 29 N.M.
621, 225 P. 577 (S. Ct. 1924)
GIBBANY
vs.
FORD, Mayor, et al.
SUPREME COURT OF NEW MEXICO
1924-NMSC-038, 29 N.M. 621, 225 P. 577
Appeal from District Court, Chaves
County; Brice, Judge.
Mandamus by J. L. Gibbany against Willis Ford, Mayor
of the City of Roswell. Judgment for defendant, and plaintiff appeals.
1. Wards of a municipality are not "political
subdivisions" within the intendment and meaning of section 13 of article 5
of the Constitution, which requires all district, county, precinct, and
municipal officers to be residents of the political subdivision for which they
are elected or appointed.
2. Section 2 of article 7 of the Constitution gives the right
to every person who is a citizen of the United States, a resident of and a
qualified elector within this state, to hold any public office except as
otherwise provided in the Constitution. Section 13 of article 5 requires all
district, county, precinct, and municipal officers to be residents of the
political subdivisions for which they were elected or appointed. The
Legislature has no power to make added restrictions to such right to hold
public office.
3. Section 3 of chapter 111, Laws of 1919, which provides
that the removal of an alderman from the ward from which he was elected or
appointed shall forfeit his office, and a vacancy thereby created is void, as
it constitutes a superaddition to the right to hold the office of alderman
beyond those prescribed by the Constitution.
J. D. Mell, of Roswell, for appellant.
Tomlinson Fort, H. M. Dow, and H. C.
Maynard, all of Roswell, for appellee.
Bratton, J. Parker, C. J., and Botts, J.,
concur.
{*622} {1} OPINION OF THE COURT. F. J. Beck was elected
alderman from the Fifth ward of the city of Roswell at the regular election
held during April, 1920, and J. C. Gilbert was elected alderman from said ward
at the regular election held during April, 1922. Thereafter Beck moved out of
said municipality and ceased to be a resident thereof, and Gilbert moved out of
the Fifth ward and into the Fourth ward thereof, and is now residing within
such Fourth ward. J. L. Gibbany, the appellant herein, instituted this suit in
mandamus to compel the mayor and board of aldermen of said city to declare the
offices held by Beck and Gilbert vacant, and to take the necessary steps to
have their successors elected at the regular election to be held in said city
on the first Tuesday in April. Responding to an alternative writ, the appellees
contended that the facts {*623} set
forth did not constitute a cause of action as to the office held by Gilbert;
that such facts did not constitute a vacancy in his office; and, particularly,
that section 3 of chapter 111, Laws of 1919, so far as it declares the removal
of an alderman from the ward which he represents into another ward within the
municipality to constitute a forfeiture of the office, is unconstitutional and
void. They further pleaded that all necessary steps looking to the election of
a successor to Beck had been taken.
{2} The trial court dismissed
the writ in so far as it applied to the office held by Gilbert, and this forms
the sole controversy here, no question being further made concerning Beck and
the office he formerly held.
{3} 1. It is expressly
provided by section 3 of chapter 111, Laws of 1919, that, where a city, town,
or village is divided into wards or political subdivisions for the purpose of
voting and government, councilmen, aldermen, and trustees shall be residents of
the ward or other subdivision for which they are elected, and that a removal
therefrom shall constitute a forfeiture of the office, and shall create a
vacancy thereof. The statute provides in this language:
"Where any city, town or village shall be by
ordinance or otherwise divided into wards or political subdivisions for the
purpose of voting and government, councilmen, aldermen and trustees shall be
residents of the ward or other political subdivision for which they are
elected, and any councilman, alderman or trustee who shall remove his residence
beyond the limits of such ward or subdivision shall thereby forfeit the office
to which he was elected, and a vacancy shall be thereby created."
{4} The statute is clear and
plain and unequivocally provides that upon an alderman moving out of the ward
from which he was elected and into another ward he forfeits and vacates his
office. Its constitutionality is the only debatable question presented. Section
2 of article 7 of the Constitution as amended (see page 468, Laws 1921)
provides:
"Every citizen of the United States who is a
legal resident of the state and is a qualified elector therein, shall be
qualified to hold any public office in the state except {*624}
as otherwise provided in this Constitution. The right to hold public office
in the state of New Mexico shall not be denied or abridged on account of sex,
and wherever the masculine gender is used in this Constitution, in defining the
qualifications for specific offices, it shall be construed to include the
feminine gender. Provided, however, that the payment of public road poll tax,
school poll tax or service on juries shall not be made a prerequisite to the
right of a female to vote or hold office."
{5} It appears from this
provision that every citizen of the United States who is a legal resident of
this state and a qualified voter herein shall be qualified to hold any public
office within this state, except as otherwise provided in the Constitution. The
expression "qualified to hold any public office within this state,"
as used in the constitutional provision just quoted, means "eligible to
hold any public office within this state." Board of Commissioners v.
District Court,
29 N.M. 244,
223 P. 516. So that the provision of the
Constitution as previously interpreted by this court expressly provides that
every citizen of the United States who is a resident of this state and a
qualified voter herein shall be eligible to hold any public office within the
state, except as otherwise provided in the Constitution. We must therefore
search the Constitution to ascertain what limitations are therein contained
which make the removal of an officer from one ward into another a forfeiture of
the right to hold his office with the consequential vacancy thereof. The only
provision to be found in the Constitution having in the least to do with this
situation is section 13 of article 5, which provides:
"All district, county, precinct and municipal
officers, shall be residents of the political subdivision for which they are
elected or appointed."
{6} It therefore becomes
apparent that the only restriction against the right of every citizen of the
United States who is a resident of and a qualified voter within this state to
hold any public office is that all district, county, precinct, and municipal
officers shall reside within the political subdivision for which they were
elected or appointed. The question presented, then, is whether a ward within a
city, town, or village is a political subdivision within the intendment and
{*625} meaning of the Constitution. If it is
not, then residence within the municipality meets the constitutional
requirement, and the Legislature has no power to add restrictions upon the
right to hold office beyond those provided in the Constitution, because the
constitutional provision is not a negative one, providing that no person shall
be eligible to hold an office unless he possess certain qualifications, as is
often the case in other states, but is a positive provision, giving the right
to every person possessing the qualifications therein set forth to hold office,
except as otherwise provided in the Constitution itself. Manifestly, therefore,
the Legislature is without power to make added restrictions as a qualification
to the right to hold the office of alderman. To permit it to do so would
authorize the superaddition of requirements to hold office beyond those
provided by the Constitution. We have recently so held. Board of Commissioners
v. District Court, supra.
{7} In determining whether
wards are political subdivisions we must keep in mind our recent holding that
aldermen are not elected by the voters of their respective wards, but by the
voting citizenry of the city at large. Wright v. Closson (N.M.)
29 N.M. 546,
224 P. 483, recently decided, and not yet [officially] reported. There is
therefore no legal entity to wards for the purpose of electing aldermen. Under
the laws of this state as they now exist, wards within a municipality exercise
no governmental functions. They are not political entities for any governmental
purposes, and they possess no powers of local self-government. Cities, towns,
and villages are divided into wards in order to obtain more convenient
representation on the city government, but all powers of local self-government
in such municipalities, under the present status of the law, are vested in the
council or board of aldermen. Wards are not entities for voting purposes; they
do not even elect their own aldermen, but must join with the entire voting
population of the city. We know of no internal affair of a governmental
character which is controlled by the inhabitants of one ward acting singly,
alone, and separately from the remainder of the inhabitants of such municipality.
Under such circumstances, they cannot be political subdivisions,
{*626} because the very term implies a
division of the parent entity for some governmental purpose, a thing which a
ward does not have. In order to be political subdivisions, they must be formed
or maintained for the more effectual or convenient exercise of political power
within certain boundaries or localities, to whom the electors residing therein
are, to some extent, granted power to locally self-govern themselves. We know
of no such powers now vested in the wards of a municipality, and counsel for
appellant has been unable to suggest any such.
{8} In State ex rel. Pell v.
Mayor and Council of Newark, 40 N.J.L. 71, this is said:
"Wards, within themselves, do not possess any
power of local government: they are erected exclusively for the purpose of
securing representation in the city government. They merely constitute a
convenient territorial division of the city, to enable the inhabitants to
select representatives to regulate their internal affairs. The common council
provides for the lighting of the streets, the maintenance of the poor, the
support of the police department, and all other matters affecting the internal
affairs of the city."
{9} And in the later case
from that court, State et al. v. Drainage and Water Commissioners, 41 N.J.L.
154, this was said:
"The political divisions of the state are those
which are formed for the more effectual or convenient exercise of political
power within the particular localities. Originally, counties and townships in
which a uniform state policy is observable composed this class almost or quite
exclusively. Then, as population became denser in certain places, and there was
added to this common design a special necessity for local government different
from that proper to more rural districts, villages, towns and cities were
constituted, and, as these were separated by their charters of incorporation
from the townships of which they had before been part, and absorbed their
functions, they also became political divisions. In these institutions,
therefore, must be discovered, the essential characteristics of their class,
and they will be such common and prominent features as have coexisted with
these organizations throughout their history, and are not possessed by other
bodies of legislative creation which stand outside of the same category. These
distinctive marks are, I think, that they embrace a certain territory and its
inhabitants, organized for the public advantage, and not in the interest of
particular individuals or classes; that their chief design is the exercise of
governmental functions, and that to the electors residing within each is, to
some extent, committed the power of local government, {*627}
to be wielded either mediately or immediately, within their territory, for
the peculiar benefit of the people there residing."
{10} A case which we consider
in point is State ex rel. Childs v. Holman et al., 58 Minn. 219, 59 N.W. 1006.
The facts there are that the statute in question provided for the election of
nine assemblymen of the city of St. Paul; that they should be elected at large
from the body politic of said municipality; that four of them should reside
east of Wabasha and Rice streets and north of the Mississippi River; that four
of them should reside west of Wabasha and Rice streets and north of the
Mississippi River; that the remaining one should reside in the Sixth ward
thereof. The constitutional provision of that state with respect to the right
to hold public office was section 7 of article 7, which provides:
"Every person who by the provisions of this
article shall be entitled to vote at any election shall be eligible to any
office which now is, or hereafter shall be, elective by the people in the
district wherein he shall have resided thirty days previous to such election,
except as otherwise provided in this Constitution, or the Constitution and laws
of the United States."
{11} It was held by the
Supreme Court that the statute imposed greater restrictions upon the right to
hold office than the Constitution permitted, and was therefore void. This was
said:
"The remaining question is whether this provision
of the city charter imposes greater restrictions upon eligibility, or adds
qualifications for eligibility additional to those prescribed by the
Constitution. It seems to us that they do, and that is the way we think it
would naturally strike the common sense of men. The situation, plainly stated,
is just this: All the electors of the city may vote for all nine assemblymen,
but no elector is eligible to any of these offices except the four or one, as
the case may be, belonging to the district in which he resides. We cannot see
this in any other light than as an attempt to impose a restriction or
limitation upon eligibility which is equivalent to imposing a qualification for
election in addition to those fixed by the Constitution. It is urged with a
good deal of plausibility that this provision of the charter does not render
any elector ineligible to the office of assemblyman, for every one is eligible
either to one of the offices included in one or the other of the two groups of
four, or to {*628} the single office
pertaining to the Sixth ward, and therefore no elector is deprived of any
substantial constitutional right. The very subtility and refinement of
reasoning resorted to in support of this proposition tends to create doubt as
to its soundness. We cannot view this provision of the charter otherwise than
as imposing a limitation upon or adding a condition to eligibility not
permitted by the Constitution."
{12} The similarity of the
constitutional provision of that state with that of this state we now have
before us, and the similarity, in effect, of the two statutes make the case of
peculiar and controlling force. It is in point, and presents reason and logic
which meet with our approval. To permit the Legislature to say that a person
who resides within a municipality cannot hold the office of alderman unless he also
resides within the ward he represents authorizes a restriction and an added
eligibility to hold that office, which the Constitution in plain terms denies.
No such superaddition can be made effective until such time as the Legislature
confers upon wards of a city, town, or village some powers or functions of
local self-government, so that they may be said to be political subdivisions.
When that time shall have come, perhaps a law of this kind may be valid; but so
long as wards are completely shorn of any functions of self-government, and do
nothing in the way of discharging any such powers or functions, they are not
such political subdivisions as the Constitution comprehends or contemplates.
{13} The appellant relies
strongly upon the case of State ex rel. Hartford v. Craig, 132 Ind. 54, 31 N.E.
352, 16 L. R. A. 688, 32 Am. St. Rep. 237, to sustain his contention. The
Constitution of the state of Indiana provided that all county, township, and
town officers shall reside within their respective counties, townships, and
towns, and it was held that a statute is valid which provided that no person
should hold the office of councilman unless at the time he was elected he
resided within the ward from which he was elected, and in case of a removal of
any such councilman from such ward the common council should have the power to
declare such office vacant. The case is clearly distinguishable from the one
now before us. It was there held that the Legislature had the power to provide
{*629} additional requirements, conditions, or
restrictions upon the right to hold office, so long as they did not violate the
constitutional provision in question. That constitutional provision did not in
express terms give nor grant the right to every person residing within the
county, township, or town who was a qualified voter therein to hold any public
office within such political subdivisions. It merely said that no person should
hold office unless he resided therein. The case merely holds that the
Legislature may prescribe added qualifications if they do not run afoul of any
of those prescribed by the Constitution. But here the Constitution gives the
right to every person meeting the qualifications prescribed in the Constitution
to hold any public office, and to say that the Legislature may restrict that
right by providing that, although a person resides within a municipality, he
cannot hold the office of alderman unless he meets still another requirement
entirely beyond those set forth in the Constitution, is too obviously unconstitutional
to warrant serious argument.
{14} The trial court
correctly disposed of the case, and the judgment should therefore be affirmed;
and it is so ordered.