ALBUQUERQUE BUS CO. v. EVERLY

• Decision Date: 03 November 1949
• Docket Number: No. 5214,5214
• Citation: 53 N.M. 460,211 P.2d 127
• Parties: ALBUQUERQUE BUS CO. v. EVERLY et al.
• Court: New Mexico Supreme Court

53 N.M. 460

211 P.2d 127

ALBUQUERQUE BUS CO.

v.EVERLY et al.

No. 5214.

Supreme Court of New Mexico.

Nov. 3, 1949.

[211 P.2d 128, 53 N.M. 462]

Messrs. Simms, Modrall, Seymour & Simms, Albuquerque, for appellant.

Waldo H. Rogers, City Atty., A. L. Strong, Asst. City Atty., Hugh R. Horne, Asst. City Atty., Robert W. Botts, Special Counsel, Albuquerque, for appellees.

McGHEE, Justice.

The appellees are the commissioners and clerk of the City of Albuquerque which operates under a special charter adopted under the provisions of Chapter 86, Laws of 1917, Art. 12, Ch. 14, 1941 Compilation. The city, by ordinance, granted the appellant bus company a franchise to operate busses over its streets for a period of 25 years, whereupon a petition signed by more than 10% of the adult residents of said city was filed asking that a referendum election be held on such franchise. The city then ordered such an election and directed the appellant to deposit with it the sum of $4500.00 to cover the expenses thereof. The appellant then filed an action in the District Court challenging the sufficiency of the petition on the ground that Art. 2 of Sec. 3 of its charter requiring a petition to be signed by 20% of the registered voters of the city controlled rather than the provisions of Ch. 87, Laws of 1931, Sec. 14-3501, 1941 Compilation. It also urged that the 1931 Act was invalid under Article 4, Section 16, of the Constitution, in that the title was insufficient; and further that such Act was unconstitutional for the reason it did not amend all of Sec. 90-402, but only one subsection thereof.

The trial court rendered judgment against the plaintiff-appellant.

A section of Chapter 86, Laws of 1917, now appearing as Sec. 14-1211, 1941 Compilation, reads as follows: 'A city organized under the provisions of this act shall be governed by the provisions of the charter adopted pursuant to this act, and no law relating to municipalities inconsistent with the provisions of said charter shall apply to any such city.'

Section 14-3501, which is the Act as amended authorizing municipalities to grant franchises to public utilities reads as follows: 'All cities, towns and villages shall have the power to grant, by ordinance, franchises and privileges to private individuals, firms or corporations for the construction, or erection and operation of street car lines, water-works, electric light works and/or distribution systems, natural or artificial gas works and/or systems, and for the construction and operation of other public utilities; provided, however, that in no event shall any such franchise ordinance become effective until at least thirty (30) days after its enactment, during which time it shall be published in full in at least two (2) weekly issues of a newspaper published in such municipality; and, provided, further, that if within said period of thirty (30)days there shall be presented to the governing body of such municipality a petition signed by bona fide adult residents of such municipality to a number equivalent to ten per cent (10%) of the population of such municipality as shown by the most recent federal census, wherein objection is made to the granting of such franchise, then it shall immediately become the duty of such governing body to submit the question of the granting of such franchise to a vote of the qualified electors of such municipality at a general or special election. If the date for the next general election for municipal officers shall be not more than ninety (90) days after the date said petition is filed, such question shall be submitted at such next general election; otherwise the governing body shall immediately call a special election, which shall be called, held, returned and canvassed in the manner provided by law for general municipal elections. If a majority of those voting on such submitted question shall be in favor of the granting of such franchise, such franchise ordinance shall thereupon take effect; but if a majority of those voting on such question shall be against the granting of such franchise, said ordinance shall not take effect and shall stand repealed, and the applicant for such franchise shall acquire no rights or privileges thereunder. The expenses of publishing the ordinance and of holding a special election shall be borne by the applicant for such franchise. All franchises granted hereunder shall comply with the provisions of subsection seventieth ofsection 90-402, New Mexico Statutes, Annotated, Compilation of 1929 (§ 14-1850). (Laws 1893, ch. 46, § 6; C.L.1897, § 2402(90); Code 1915, § 3564(90); C.S.1929, § 90-402(90); Laws 1931, ch. 87, § 1, p. 144.)'

We begin our consideration of the first point with the knowledge that the granting of a franchise to a public utility to use the streets of a municipality is the act of the sovereign state, and that when the legislature delegates to a municipality the power to grant such a franchise the latter acts as the agent of the state. 23 Am.Jur. Sec. 11 (Franchises); City of Roswell v. Mountain States Tel. & Tel. Co., 10 Cir., 78 F.2d 379, 383. We are also mindful of the fact that this court has held that where the meaning of a grant or contract regarding any public franchise is ambiguous or doubtful it will be construed favorably to the rights of the public. State ex rel. de Burg v. Water Supply Company of Albuquerque, 19 N.M. 36, 140 P. 1059, L.R.A.1915A, 246, Ann.Cas.1916E, 1290.

It is also the rule that provisions reserving to the people the powers of initiative and referendum are to be given a liberal construction to effectuate the policy thereby adopted. This applies equally to laws enacted to facilitate the exercise of initiative and referendum powers. 28 Am.Jur.,Sec. 7, Initiative, Referendum, and Recall, p. 155.

Further, a delegation of power to grant franchises is strictly construed in favor of the public and the agency to which power is delegated has such powers, and only such powers, as are expressed or necessarily implied. The agent must act in accordance with the conditions prescribed by law. 37 C.J.S., Franchises, § 14, p. 160.

The appellant places its principal reliance for a reversal under this point on the holding of this court in Atchison, Topeka & Sante Fe Ry. Co., v. Town of Silver City, 40 N.M. 305, 59 P.2d 351, where we held that the provisions of the 1921 general tax law providing that the State Tax Commission should fix the value of railroad property and certify it to the tax assessors, who should in turn place railroad property on the county tax rolls at such value, did not repeal the charter provisions of the town giving it the power to set up its own taxing system and values on property within its limits for tax purposes.

This decision was reached notwithstanding a general provision in the 1921 Act providing that the valuations fixed by the State Corporation Commission should be binding on all taxing officials. The turning point in the case seems to have been the failure of the Act to state that the property should also be placed on municipal rolls at the values fixed by the State Tax Commission so as to overcome the rule that a special act controls over a general one. We have no quarrel with the rules announced in that case but do not consider that they are authority for reversing the judgment in this case.

The appellant also relies on the cases of Waltom v. City of Portales, 42 N.M. 433, 81 P.2d 58, a case involving the priority of general tax and special...