Bettini v. City of Las Cruces
| Decision Date | 03 May 1971 |
| Docket Number | No. 9178,9178 |
| Citation | 1971 NMSC 54,485 P.2d 967,82 N.M. 633 |
| Parties | , 89 P.U.R.3d 524 S. A. BETTINI, Plaintiff-Appellant, v. The CITY OF LAS CRUCES, New Mexico, a municipal corporation, Defendant-Appellee. |
| Court | New Mexico Supreme Court |
Plaintiff-appellant (Plaintiff) filed suit against defendant-appellee (City) for a refund of utility charges exacted by the City in payment of an obligation owing by Plaintiff's predecessor in title as a condition to furnishing further service. From an adverse judgment, Plaintiff appeals.
In 1965 a mortgage foreclosure suit was pending against Penguin Motor Hotel in which a judgment of foreclosure was entered on November 1, 1965. City had furnished utility services to the motel for which, after some difficulties, it was paid, except for the period from shortly before or after the entry of judgment until December 30, 1965. On that day it filed its lien for such services pursuant to § 14--22--6, N.M.S.A., 1953, in the sum of $628.08. City was not a party to the foreclosure proceedings. On January 4, 1966, Penguin Motel was sold at judicial sale to Plaintiff.
Plaintiff arranged a sale of the motel and, on May 8, 1968, applied for full commercial utility service. City refused to furnish these services unless and until the delinquent charges were paid in full. Plaintiff, asserting that he did so under duress and protest, paid the charges and filed this suit for refund.
Plaintiff asserts that City has no lien on the motel premises, it having been in some manner adversely affected by the foreclosure judgment or sale. Under the disposition we make of the case a determination of whether there is or is not a lien is not essential. We will assume for purposes of this opinion that City had a valid and subsisting lien.
Section 14--22--1, N.M.S.A., 1953, a part of Ch. 300, Laws of 1965, provides:
'A. A municipality may require a reasonable payment in advance, or a reasonable deposit, for water, electricity, gas, sewer service, refuse collection service or street maintenance.
B. If payment of any price, rent, fee or other charge for water, sewer service, refuse collection, or street maintenance is not made within thirty (30) days from the date the payment is due, the water service may be discontinued, and shall not be again supplied to the person liable for the payment until the arrears with interest and penalties have been fully paid.' (Emphasis ours)
Section 14--22--6, N.M.S.A., 1953, a part of the same act, provides:
'A. Any charge imposed by ordinance for service rendered by a municipal utility shall be:
(1) payable by the owner, personally, at the time the charge accrues and becomes due; and
(2) a lien upon the tract or parcel of land being served from such time.
B. The lien shall be enforced in the manner provided in sections 14--35--1 through 14--35--5 New Mexico Statutes Annotated, 1953 Compilation. In any proceedings where pleadings are required, it shall be sufficient to declare generally for the municipal utility service.' (Emphasis ours)
Section 14--22--1(B), supra, limits the right of the municipality to withhold service from '* * * the person liable for the payment * * *.' Statutory words are presumed to be used in their ordinary and usual sense. Nunn v. Nunn, 81 N.M. 746, 473 P.2d 360 (1970); State v. Reinhart, 79 N.M. 36, 439 P.2d 554 (1968); Valley Country Club, Inc. v. Mender, 64 N.M. 59, 323 P.2d 1099 (1958). The ordinary person reading the quoted words from § 14--22--1(B), supra, would not ascribe to them a meaning which would include subsequent owners of property who were not themselves obligated to the municipality. We are of the opinion that the ordinary and usual meaning attributable to the quoted words in the context in which they are used is not such that they may be expanded to include subsequent owners.
It is City's position that, even though the utility charges in question were incurred by a predecessor in title, under the holding of this court in State ex rel. Scotillo v. Water Co., 19 N.M. 27, 140 P. 1056 (1914), L.R.A.1915A, 242 (1915) and § 14--22--1(B), supra, Plaintiff was a 'person liable' within the meaning of the statute and that City was therefore entitled to withhold service as a means of exacting payment from him. We do not agree.
At the time of the decision in Scotillo, municipalities were given a lien for water rents by the provisions of § 1, Ch. 68, Laws of 1912, subsequently compiled as § 3569, 1915 Code. It was further provided by § 2, Ch. 136 of the Laws of 1909, later compiled as § 3570, 1915 Code, that such liens could be enforced by district court suits. There does not appear to have been at that time any statutory authority for withholding service comparable to § 14--22--1, supra. Thus, when Scotillo was decided, there was no statutory authority to withhold service from the person liable or from anyone else. Rather, this right was grounded upon court decisions in circumstances in which there was a statutory lien comparable to that presently provided by § 14--22--6, supra. The question then arises as to the interpretation to be placed on § 14--22--1, supra and whether the result of Scotillo is modified thereby. There would be no question as to the right of the City here, under the decision in Scotillo to exact sums owed for utility services from a subsequent owner, were it not for the subsequent enactment of § 14--22--1, supra.
We are led to our conclusion primarily by an application of the doctrine of expressio unius est exclusio alterius. A typical case enunciating and applying the doctrine in New Mexico is Fancher, et al. v. County Com., 28 N.M. 179, 210 P. 237 (1922), Annot., 84 A.L.R. 964 (1933). In Fancher, a statute authorized the board of county commissioners of any county to have an index made of all instruments of record affecting real property. It further provided that the commissioners were authorized to have the index made by the county clerk. The commissioners of Grant County contracted with an outside firm to do this work, and the question was whether or not they were authorized to do so. The court held that they were not. It quoted with approval from 2 Lewis, Sutherland's Stat.Const., page 919, as follows:
Applying that doctrine to this case, when the legislature authorized the withholding of utility service in aid of collecting obligations for such service and then specified that this step could be taken against the persons liable therefor, and failed to authorize withholding service from a subsequent owner, we are led by the application of the doctrine to the conclusion that the legislature did not intend...
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...reading these provisions according to the ordinary meaning of "proceeding," see Bettini v. City of Las Cruces , 1971–NMSC–054, ¶ 6, 82 N.M. 633, 485 P.2d 967 (stating that "[s]tatutory words are presumed to be used in their ordinary and usual sense"), we see no indication that the Legislatu......
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