Town of Las Cruces v. El Paso Cotton Indus. Inc.

Decision Date02 August 1939
Docket NumberNo. 4452.,4452.
Citation92 P.2d 985,43 N.M. 304
PartiesTOWN OF LAS CRUCESv.EL PASO COTTON INDUSTRIES, Inc., et al.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Dona Ana County; Numa C. Frenger, Judge.

Action by the Town of Las Cruces against the El Paso Cotton Industries, Incorporated, and others, to recover from each of several defendants occupation tax alleged to be due and payable under ordinance of plaintiff town. From a judgment for plaintiff, the defendants appeal.

Reversed, with instructions to enter judgment for defendants.

Unconstitutional acts are as inoperative as though they had never been passed, and they do not repeal the existing law.

W. C. Whatley, of Las Cruces, for appellants.

J. B. Newell, of Las Cruces, for appellee.

BRICE, Justice.

This action was brought by the appellee, town of Las Cruces, to recover from each of the several appellants, occupation tax alleged to be due and payable under an ordinance passed, adopted and approved in 1929, entitled “An ordinance imposing an annual occupation tax upon enumerated persons, firms and corporations, and providing penalties and civil liabilities for failure to comply therewith,” which ordinance, it is alleged, was enacted by authority of Secs. 90-501 to 90-510 inclusive, N.M.Sts.Ann.1929.

A demurrer to the complaint was overruled, and the appellants having refused to further plead; a judgment was entered against each for an amount equal to the occupation tax alleged to be due by it, a twenty-five percent. penalty thereon and one hundred dollars attorney's fees.

Section 90-501 authorized cities, towns and villages of New Mexico to impose an occupation tax on certain businesses therein specified “and *** on all occupations, professions, trades, pursuits, corporations and other institutions and establishments, articles, utilities and commodities not heretofore enumerated of whatever name or character, like or unlike.” It is further provided:

“In the cases of occupation taxes assessed under section 1 (90-501) of this act, such tax shall not exceed $1.00 per annum for each $1,000.00 gross volume per annum of business done except that a minimum tax of $5.00 may be levied hereunder and collected.” Sec. 90-505, N.M.Sts.1929.

“For the purpose of assessing the occupation tax specified in section 5 (90-505) of this act the legislative or governing bodies of each city, town and village, shall at the first of each year fix the gross volume of business done for the purpose of taxation of each calling, profession, occupation, business or avocation, from the best information obtainable. It shall give notice to each individual, firm or corporation of the amount of such assessment, with at least five days notice of the time and place of a hearing of protest to the assessment so made. At such protest meeting such individual, firm or corporation may appear and protest the amount of such assessment, and present evidence before such governing body of the amount of gross business done. If said governing body is satisfied upon such evidence that the assessment is too high, they shall lower the same to the proper amount.” Sec. 90-506, N.M.Sts.1929.

“The legislative or governing bodies of cities, towns and villages shall have the power to provide, by ordinance not in conflict herewith, for the assessing and collecting of occupation taxes and licenses herein provided for, and shall have the power to provide for the penalty and punishment for the failure to comply therewith.” Sec. 90-507, N.M.Sts.1929.

It is also provided that suit for the recovery of such taxes may be brought by the town in any court of competent jurisdiction, under such rules as it may by ordinance provide.

It does not appear from the complaint the character of business in which appellants were engaged in 1935 and 1936, nor whether an occupation tax was imposed thereon by the governing body of the town of Las Cruces; nor the rate of taxation, if in fact such tax was imposed; nor facts necessary to determine the amount of such tax, nor is the ordinance pleaded except by title; and we are unable to determine these and other facts we should ordinarily know to settle the issues. But it appears from appellants' brief that it is their desire to have certain legal questions settled, and to that end rest their case on the lack of legislative authority in the appellee to impose the tax at all, and we will so treat the case.

Ch. 73, N.M.L.1933, covering the same subject, attempted to repeal the statutes we have mentioned (Secs. 90-501 to 90-510), but the 1933 act, together with a similar one (Ch. 33 N.M.L.Sp.Sess.1934), were held to be unconstitutional by this court. Safeway Stores et al. v. Vigil et al., 40 N.M. 190, 57 P.2d 287.

It is contended by the appellee and apparently acquiesced in by appellants, that the attempted repeal was ineffective because of the unconstitutionality of the repealing act. This we believe to be correct, as it does not appear that the original act would have been repealed except by the substitution of another act designed for the same purpose. State v. Candelaria, 28 N. M. 573, 215 P. 816; Mazurek v....

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2 cases
  • State v. Rondeau
    • United States
    • New Mexico Supreme Court
    • August 20, 1976
    ...as if it had never been passed, and the subsequent unconstitutional act cannot repeal the existing law. Town of Las Cruces v. El Paso Cotton Industries, 43 N.M. 304, 92 P.2d 985 (1939). The general common law rule is stated in 1A A. Sutherland, Statutes and Statutory Construction, § 23.24 (......
  • State v. Armstrong
    • United States
    • Court of Appeals of New Mexico
    • May 23, 1973
    ...20 A.L.R. 1527 (1921). Unconstitutional acts are as inoperative as though they had never been passed. Town of Las Cruces v. El Paso Cotton Industries, 43 N.M. 304, 92 P.2d 985 (1939). If the sodomy statute is unconstitutional, no crime can be committed under it. No citizen can be The only r......

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