City of Clovis v. Dendy.

• Decision Date: 21 March 1931
• Docket Number: No. 3490.,3490.
• Citation: 35 N.M. 347,297 P. 141
• Parties: CITY OF CLOVISv.DENDY.
• Court: New Mexico Supreme Court

35 N.M. 347

297 P. 141

CITY OF CLOVIS

v.DENDY.

No. 3490.

Supreme Court of New Mexico.

March 21, 1931.

Syllabus by the Court.

Defendant's appeal to district court, after conviction in justice court which had jurisdiction of offense, operates as general appearance, giving district court complete jurisdiction.

Where justice of the peace had jurisdiction of the subject-matter of the action, and could have obtained jurisdiction of the person of the defendant, on appeal the district court has complete jurisdiction, because the appeal operates as a general appearance.

Ordinance prohibiting sale of intoxicating liquors held within charter power of municipality (Comp. St. 1929, §§ 90-901, 90- 402, subsec. 18; Laws 1927, c. 89, § 12, as amended by Laws 1929, c. 37, § 7).

Appellee city held to have sufficient charter power to legislate on the subject of prohibition of the sale of intoxicating liquors. Section 90-901; subsection 18, section 90-402, 1929 Comp.; section 12, c. 89, Laws 1927; section 7, c. 37, Laws 1929.

Complaint under city ordinance charging sale of intoxicating liquor held sufficient without alleging that liquor was sold for beverage purposes (Comp. St. 1929, §§ 35-4415, 90-909).

Complaint for prosecution of violation of city ordinance examined, and held sufficient.

Defendant on appeal to district court after conviction in justice court under municipal ordinance is not entitled to jury trial (Comp. St. 1929, §§ 79-322, 79-524, 79- 527; Const. art. 2, § 12; art. 6, § 27).

In prosecutions under municipal ordinances (sections 79-322, 79-527, 1929 Comp.), defendant is not, on appeal to district court, entitled to jury trial.

In prosecution under municipal ordinance for selling liquor, evidence held to support conviction.

Evidence examined, and held sufficient to support the judgment.

Imposition of fine of $150 for violation of municipal ordinance prohibiting sale of liquors held within jurisdiction of justice of the peace (Comp. St. 1929, §§ 79-208, 90-901, 90-910; Const. art. 6, § 26).

It is within the power of a justice of the peace to impose a fine of $150 in a case of prosecution under municipal ordinances.

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

Criminal prosecution by the City of Clovis against Claud Dendy for selling intoxicating liquor in violation of an ordinance. From a judgment of conviction in the district court, after appeal from a conviction in the justice court, defendant appeals.

Affirmed.

It is within the power of a justice of the peace to impose a fine of $150 in a case of prosecution under municipal ordinances.

James A. Hall, of Clovis, for appellant.

Otto Smith, of Clovis, for appellee.

BICKLEY, C. J.

Appellant was informed against as follows:

“On this 28th day of May, A. D. 1928, personally appeared Otto Smith before the Court of J. R. Graham, Police Judge in and for the City of Clovis, and one of the Justices of the Peace in and for Precinct No. 1, County of Curry, State of New Mexico, and after being duly sworn in conformity with law states that Claud Denby did wilfully and unlawfully commit the offense of selling intoxicating liquor, to-wit, whisky, to V. R. Watts, and that this happened in the City of Clovis, County of Curry. State of New Mexico on the 24th day of May, 1928, contrary to Section No. 1, of Ordinance No. 238, passed on the 12 day of April, 1927, made and provided in and for the said City of Clovis, New Mexico, and against the peace and dignity of the said City of Clovis, New Mexico.

“Otto Smith, Complainant.

“Subscribed and sworn to before me this 28 day of May, A. D. 1928.

“J. R. Graham, Police Judge.”

Upon a hearing, he was convicted and adjudged to pay a fine of $150 from which judgment he appealed to the district court, giving the usual appeal bond.

[1] Appellant argues that our statutes enumerating those who may administer oaths do not include a police judge, and therefore the warrant was invalid and that the conviction must therefore fall. Upon a consideration of all of the recitals of the affidavit, we doubt if there is any merit to the contention, but, in any event, appellant is not in a situation to complain. The district court, having jurisdiction of the subject-matter, obtained jurisdiction over the person of the appellant by virtue of the appeal. Hignett v. Atchison, T. & S. F. Ry. Co., 33 N. M. 620, 274 P. 44.

[2] 2. Appellant's point No. 3 attacks the ordinance under which the conviction was had, upon the ground that the city had no authority to prohibit the sale of intoxicating liquors.

We think section 90-901, 1929 Comp. commonly termed the “General Welfare Clause,” which gives municipal corporations power to make and publish ordinances, “as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort and convenience of such corporation and the inhabitants thereof,” is sufficient source of power to enact the ordinance in question. See Daniel v. City of Clovis, 34 N. M. 239, 280 P. 260; City of Roswell v. Jacoby, 21 N. M. 702, 158 P. 419. The purpose of the ordinance, being in accord with the state constitutional prohibition amendment and prohibitory statutes, would seem to leave no doubt that the ordinance was properly intended for the general welfare.

But appellant contends that a municipality cannot by ordinance provide for the punishment of an act which constitutes a criminal offense under the general law of the state, in the absence of express legislative authority. Counsel agree that there is a conflict of judicial authority on this proposition. McQuillen, Municipal Corporations (2d Ed.) § 924, states the matter as follows:

“The general doctrine is supported by the weight of judicial authority, that an act may be made a penal offense under the statutes, and that further penalties may be imposed for its commission or omission by ordinance. But to authorize such ordinance the local corporation must possess sufficient charter power and such power must be exercised in the manner conferred and consistent with the constitution and laws of the state.

“There is lack of harmony in the decisions as to whether this general statement is true only where express authority has been given the municipal corporation to legislate on the subject, and that under general grant of power no implied authority to penalize acts punishable by statute exists. This is to say, the cases present some discord respecting the nature of the grant of power necessary to sustain such additional regulations. The question of power seems to be the chief source of conflict. Nevertheless double regulations have been sustained by the United States courts, and by a majority of the state courts as well.

“This position is sound, and consistent with the present social conditions and police protection needed by the inhabitants of the cities and towns. In view of the rapid increase of urban development in modern days, especially in this country, common experience has shown that the exigencies of municipal life require more rigid regulations than is required in rural sections of the state, which are provided by statute. Clearly, many acts are far more injurious, and the temptation to commit them much greater in the congested centers than in the state at large, and when done are not only injurious to the public at large but added injury to the inhabitants of the local community. The better doctrine therefore is that the municipality may exercise necessary implied authority in police control, in imposing penal regulations consistent with the constitution and laws of the state, although the act has been made a penal offense by statute.”

Whether subsection 18 of section 90-402, 1929 Comp. (enacted in 1915), is obsolete or not by virtue of prohibition amendments to the federal and state Constitution is not necessary to decide, but at least it reflects the policy of the state as being in accord with the weight of judicial opinion. The same is true of section 12, c. 89, Laws of 1927, which was a state prohibition act, and which declared:

“Nothing in this Act shall be construed as limiting the power of any city, town, or village, to prohibit the manufacture, sale, transportation, or possession of intoxicating liquors for beverage purposes.”

If this section was not a grant of power, it at least seemed to recognize the power of municipalities to legislate on the subject. This section was amended by section 7, c. 37, Laws 1929, to read in part:

“Cities, towns or villages are authorized to prohibit the manufacture, sale, transportation or possession of...