Brockman v. Contractors Licensing Bd.

• Decision Date: 30 June 1944
• Docket Number: No. 4837.,4837.
• Citation: 48 N.M. 304,150 P.2d 125
• Parties: BROCKMAN et al.v.CONTRACTORS LICENSING BOARD et al.
• Court: New Mexico Supreme Court

48 N.M. 304

150 P.2d 125

BROCKMAN et al.

v.CONTRACTORS LICENSING BOARD et al.

No. 4837.

Supreme Court of New Mexico.

June 30, 1944.Rehearing Denied Aug. 7, 1944.

Appeal from District Court, Santa Fe County; William J. Barker, Judge.

Action by J. E. Brockman and others against the Contractors Licensing Board of New Mexico and others for an injunction. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Contractors, who had been duly licensed by Contractors Licensing Board and were operating unmolested under the act creating the board, could not question constitutionality of the act in absence of claim that any proceeding was pending, threatened, or contemplated by members of board concerning revocation of contractors' licenses or concerning any other act thereunder which would injuriously affect them. 1941 Comp. §§ 51-1901 to 51-1916.

G. T. Watts and O. O. Askren, both of Roswell, for appellants.

Edward P. Chase, Atty. Gen., and Harry L. Bigbee, Asst. Atty. Gen., for appellees.

MABRY, Justice.

Appellants, hereinafter to be referred to as plaintiffs, sought an injunction against the Contractors Licensing Board and the members thereof (hereinafter to be referred to as the board) solely upon the ground that the act under which such board was appointed and acted was unconstitutional. An injunction was denied and plaintiffs appeal.

The statute in question (1941 Comp. Laws, sec. 51-1901 to 51-1916) sets up a board to license those engaged in the business of “contractor” within the state, defines the character of contracting to which the act applies, provides for the revocation of licenses upon a proper showing to the board that there have been violations of the code of performance laid down for such contractors and prohibits, under penalty, any person undertaking to act in the capacity of a contractor without having first secured a license from said board. In addition the act denies to such contractor operating without such license the right to file or claim any statutory mechanics lien.

In view of the disposition made of the case, it will be unnecessary to notice the constitutional objections urged to such legislation, except to say that it is claimed, generally, the act violates Sec. 18 of Art. 4 of our state constitution in that certain provisions of the act are extended to embrace other laws without such other laws being set out in full in the act here challenged; that it violates Sec. 1 of Art. 6 of the constitution because such legislation attempts to create a court not authorized by the constitution, with power to try and determine matters concerning contractors and their contracts; that the act is violative of Sec. 24 of Art. 4 of the New Mexico constitution because it would “impair liens” in violation of the constitution which prohibits such special or local laws.

Since a decision here must rest upon the determination of a more simple question, viz., that of plaintiffs being the proper parties to maintain the suit, it will be unnecessary to discuss any questions relating to the constitutionality of the act.

It appears that plaintiffs are doing business as contractors; that they have been licensed as such and are operating unmolested under the act which they now challenge as being unconstitutional. There is no showing that revocation of their licenses is imminent, threatened or even suggested. There is nothing in the record to disclose that plaintiffs have yet been in any way adversely affected by the law they challenge. Obviously, the purpose of this suit is to test the constitutionality of the act under circumstances which, it must be admitted, present a purely academic question; and such we are not called upon to decide.

[1][2] Since plaintiffs do not claim or show that any proceeding is pending, threatened or contemplated by the defendants concerning the revocation of plaintiffs' licenses, or concerning any other act which would injuriously affect them, no such interest is shown as will permit them to question the act's constitutionality. No rule is better established. McKinley County Board of Ed. v. State Tax Comm. et al., 28 N.M. 221, 225, 210 P. 565; Asplund v. Alarid, Assessor, et al., 29 N.M. 129, 139, 219 P. 786; State ex rel. Burg v....