Cont'l Oil Co. v. City of Santa F?.

• Decision Date: 30 December 1918
• Docket Number: No. 2201.,2201.
• Citation: 25 N.M. 94,177 P. 742
• Parties: CONTINENTAL OIL CO.v.CITY OF SANTA FÉ.
• Court: New Mexico Supreme Court

25 N.M. 94

177 P. 742

CONTINENTAL OIL CO.

v.CITY OF SANTA FÉ.

No. 2201.

Supreme Court of New Mexico.

Dec. 30, 1918.

Syllabus by the Court.

A preamble is a prefatory statement or explanation or a finding of facts by the power making it, purporting to state the purpose, reason, or occasion for making the law to which it is prefixed. Although not an essential part of an act or ordinance, reference thereto may be had in aid of the interpretation of the act or ordinance of which it is a part.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Preamble.]

Where it appears from the context of an act or ordinance that words have been omitted therefrom, the same may be supplied by judicial construction, to complete the sense and express the legislative will. If no judicial certainty, however, can be settled upon as to its meaning, after resorting to every authorized means of construction, the court will not complete or make certain an act or ordinance otherwise incomplete and uncertain.

Municipal ordinances are construed by the same rules as statutes of the Legislature.

Appeal from District Court, Santa Fé County; Leahy, Judge.

Suit by the Continental Oil Company against the City of Santa Fé. From a judgment dismissing the complaint, plaintiff appeals. Reversed, with instructions to enter judgment granting the relief prayed for.

A preamble is a prefatory statement or explanation or a finding of facts by the power making it, purporting to state the purpose, reason, or occasion for making the law to which it is prefixed. Although not an essential part of an act or ordinance, reference thereto may be had in aid of the interpretation of the act or ordinance of which it is a part.

Frank J. Lavan, of Santa Fé (Catron & Catron, of Santa Fé, of counsel), for appellant.

A. B. Renehan, of Santa Fé, amicus curiae.J. J. Kenney, City Atty., and E. P. Davies, both of Santa Fé (N. D. Meyer, of Estancia, of counsel), for appellee.

PARKER, J.

This is an appeal by the Continental Oil Company from a judgment rendered in the district court of Santa Fé county, dismissing a complaint filed by it against the city of Santa Fé.

The suit was instituted by the appellant for the purpose of enjoining and restraining the enforcement, or attempted enforcement of a certain ordinance of said city under which the latter claimed the right to compel the appellant and others to discontinue the storage of petroleum and its products in said city.

The appellant is now, and for many years last past has been, engaged in the business of storing, distributing, and selling petroleum and its products in said city, and in prosecuting its business in those respects it has maintained and used warehouses, tanks, and other instrumentalities within said city. In pursuance of a contract made in 1904 between the appellant and the city, the former, upon premises owned by it adjacent to a line of railway in said city, erected a warehouse constructed of brick, with stone foundation and metal roof and doors, at a cost to it of about $2,500. There is also situate upon said property three metal tanks, of the total capacity of 18,000 gallons, which are used in the prosecution of its said business.

On January 3, 1917, the appellee ordained the following ordinance (the marginal numericals being inserted by us for convenience):

“An Ordinance Regulating the Handling, Storage, Etc., of Petroleum, Gasoline, Etc., in the City of Santa Fé.

Be it ordained by the city council of the city of Santa Fé.

That whereas, the use and maintenance of storage warehouses and depots for the storage, selling, handling, and distributing of petroleum or kerosene (commonly called coal oil), (1) gasoline, and any and all kinds of oil used for fuel, power, or illuminating purposes, inside of the city limits of the city of Santa Fé, is highly dangerous to the lives and property of the citizens of the city of Santa Fé, and constitutes a nuisance:

Therefore it is hereby ordained: That any person, firm, company, or corporation who (2) shall so keep, use, conduct, or maintain a warehouse or warehouses, storage depot, or place inside of the city limits of the city of Santa Fé wherein petroleum or kerosene (commonly called coal oil), gasoline, or any other kind of oil, used for or suitable for fuel, power, or illuminating purposes, in quantities of more than one barrel, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than $25.00 nor more than $50.00, or imprisonment for not less than 10 nor more than 30 days, and for the purpose of this ordinance (each day) that said warehouses, storage depots, or places where such oils, in (3) quantities of more than one barrel, are kept shall constitute a separate offense.

The Continental Oil Company, and any other persons, firms, companies, and corporations, so running, operating, maintaining, or con- (4) ducting such warehouses, storage depots, or places where such petroleum or kerosene, gasoline, and other kinds of oil used for fuel, power, or illuminating purposes, within the city limits of said city of Santa Fé, in quantities exceeding one barrel, are hereby ordered and required to remove its or their said warehouses, storage depots, or places beyond the city limits of the city of Santa Fé within ten days from the service upon it or them of a copy of this ordinance.”

Counsel for appellant, appellee, and the amicus curiae have filed able and exhaustive briefs in this cause. Many of the propositions presented involve matters of great importance and without precedent in this jurisdiction. For instance, the following, among other propositions, are presented: That the contract of 1904 was a measure for the regulation of the business of the appellant, and did not constitute bartering away the police power of the city; that the city was without power to summarily declare the business of the appellant a nuisance, and its declaration to that extent does not constitute an adjudication of the fact; that courts may review the reasonableness of ordinances of a municipality passed under the police power and declare them void because of the nature of their provisions; and that the ordinance is not general in its nature and impartial in its operation. Not only are these specific propositions raised, but the case involves a discussion of many of the ramifications of each of these questions. We are also asked to comprehensively define, in particular respect to the parties affected, the limits beyond which a municipality may not go in the pretended exercise of the so-called police power. Each and every one of these propositions ought to be determined in this jurisdiction for the future guidance of the officers of the municipalities of this state; but a discussion of them would necessarily be premised upon the assumption that some definite and ascertained meaning may be and is attached to the ordinance involved herein, whereas, as we shall hereafter demonstrate, the ordinance is indefinite and unintelligible. So uncertain is its terms that no fixed meaning can be ascribed thereto. Consequently we cannot determine many of the propositions submitted, but are constrained to determine the appeal upon purely formal matters, viz. matters pertinent to the construction of the ordinance.

The title of the ordinance purports to advise that the ordinance was to regulate the handling, storage, etc., of petroleum, gasoline, etc. The main subject of the title is petroleum, etc., not warehouses.

[1] (1) The matter opposite marginal numeral 1, the same being paragraph 1 of the ordinance, is introductory to, and explanatory of, the reasons for passing the ordinance, and...