Ex Parte Deats

• Decision Date: 09 June 1917
• Docket Number: No. 2084.,2084.
• Citation: 166 P. 913,22 N.M. 536
• Parties: EX PARTE DEATS.
• Court: New Mexico Supreme Court

22 N.M. 536

166 P. 913

EX PARTE DEATS.

No. 2084.

Supreme Court of New Mexico.

June 9, 1917.

Syllabus by the Court.

Chapter 47, Laws of 1917, impliedly repeals chapter 75, Laws of 1913, so far as that act applies to municipalities having a population of less than 1,000, and such municipalities are hereafter to be governed in matters of local option elections and rights arising therefrom by chapter 78 of the Laws of 1913, as amended.

A license to retail intoxicating liquor is neither a property right nor a contract. It is in no sense a contract made by the state with the party holding the license; it is a mere permit, subject to be modified or annulled at the pleasure of the Legislature.

A petition in local option elections, to give jurisdiction, must contain all the averments required by statute; and where the petition for the election is not in compliance with the statute, all proceedings based thereon are void, and no jurisdiction to order an election is acquired, and the election in such case is a nullity.

Under chapter 78, Laws of 1913, the county commissioners have power to order a local option election, where the petition defines a district and is signed by the requisite number of electors; and an inclusion of territory in which a local option election has been held within four years, while erroneous, does not invalidate the election, provided the elimination of such territory will not change the result.

Application in Supreme Court by J. F. Deats for writ of habeas corpus. Writ denied.

Roberts, J., dissenting in part.

A license to retail intoxicating liquor is neither a property right nor a contract; it is in no sense a contract made by the state with the party holding the license; it is a mere permit, subject to be modified or annulled at the pleasure of the Legislature.

O. O. Askren and K. K. Scott, both of Roswell, for relator.

Patton & Bratton, of Clovis, for respondent.

HANNA, C. J.

[1] The legislative session of 1913 enacted two laws regulating the barter, sale, and exchange of intoxicating liquors. The first applies to municipalities, and is incorporated in the Session Laws as chapter 75 (sections 2940 to 2948, inclusive, of the Code of 1915). The second appears as chapter 78 of the Session Laws (sections 2927 to 2939, inclusive, Code 1915). The last-mentioned act provides for the submission of the question to the qualified electors of any district within any county, excluding any territory within any incorporated city, town, or village. The municipal act provided for a petition to be signed by 25 per cent. of the electors, and that the question should be submitted but once every four years, and then only upon petition as provided by the terms of said act. The district act, known as chapter 78, likewise provided for a petition to be signed by 25 per cent. of the qualified electors within the proposed district described in the petition. The act further provided that, upon the filing of said petition, the county commissioners should--

“enter upon their minutes an order designating such district in accordance with the description thereof contained in such petition, except in case two or more such petitions are filed wherein the area described is conflicting, in which event the commissioners shall determine the district or districts in which the question shall be submitted.”

Section 1 of the latter act, appearing as section 2927 of the Code of 1915, further provided that:

“The county commissioners of any county of the state shall submit to the qualified electors of any district within their county, to be designated by them as hereinafter provided, the question of whether or not the barter, sale or exchange of intoxicating liquors shall be prohibited therein * * *”

--leaving no discretion in the county commissioners when a petition conforming to the statute had been filed with them.

Section 9 of this act likewise provided that:

“Such question affecting any territory included in any such petition shall not again be submitted for four years from the date of the election, and then only upon petition filed as herein provided.”

The section 1 referred to, in what may be called the district act, appearing as chapter 78 of the Session Laws, was amended by chapter 47 of the Laws of 1917. After reenacting section 1, the amendatory act further provides:

“Except as in this article otherwise provided, any such district so designated by the county commissioners shall include such part of the area of any county as may be described in the petition provided for and filed in accordance with this article: Provided, that it shall not include any territory within any incorporated city, town, or village of more than 1,000 population, whether incorporated under general or special laws.”

Under the statutes referred to, we are called upon to determine whether or not the petitioner, J. F. Deats, who has applied for a writ of habeas corpus, should be discharged from custody in a proceeding instituted before the justice of the peace of precinct No. 1 of Curry county, wherein he was charged with violation of section 2934, Code of 1915, which is a part of chapter 78 of the Laws of 1913. It appears that under this act a petition was circulated in Curry county, to which was attached the signatures of the requisite number of electors, pursuant to which an election was ordered and held for the entire county of Curry, excepting the city of Clovis, on the 21st day of May, 1917, and after the election had resulted in favor of prohibition, and the result had been canvassed and declared, it is urged that the penal provisions of said chapter 78 became operative within said county, and that therefore the said J. F. Deats is lawfully detained in custody for a violation of the provisions of said act.

It is urged by petitioner, however, that the provisions of chapter 78 of the Laws of 1913 are not in effect in the incorporated town of Texico, or in the town of Melrose, both of which towns were included within the limits of the boundaries described in the petition as constituting the district wherein a local option election was desired by the petitioners, because in both Texico and Melrose the question had been previously submitted within a period of four years, for which reason the petition was illegal and void, and the county commissioners were without jurisdiction to call the election of May 21, 1917. It is further contended on behalf of petitioner that the amendatory act, chapter 47 of the Laws of 1917, did not authorize the county commissioners to act upon a petition which contained a description of the district including the territory of the incorporated town of Texico and to order an election therein, and that the amendatory act is prospective only, and that the Legislature never intended it to operate upon territory in which the question had been previously submitted within a period of four years.

On behalf of the respondent it is contended that the amendatory act of 1917 repealed the municipal local option law in so far as the same applied to municipalities of less than 1,000 population, and that such amendatory act to that extent was in conflict and inconsistent with the terms of the municipal local option law. Without desiring to lengthen this opinion by a discussion of all the reasons, we think it is clear that chapter 75 of the Laws of 1913 was intended to apply only to incorporated cities, towns, and villages, while chapter 78 of the same Session Laws was to have application only to such districts as might be created by petition within counties, excluding any territory within incorporated cities, towns, or villages. In 1917 the Legislature clearly intended to take out from under the operation of chapter 75 incorporated cities, towns, or villages of less than 1,000 population; such municipalities to be thereafter governed by the district law, or chapter 78 of the Laws of 1913, as amended by the 1917 act.

We do not agree that the two methods for the submission of the local option question were intended to be continued in effect as applied to municipalities of less than 1,000 population. The first act, that of chapter 75, provides a procedure materially different from that of chapter 78, as amended, and the conflict between the two methods of procedure is sufficiently clear to call for an implied repeal of chapter 75, so far as it applies to municipalities having a population of less than 1,000. It is conceded that the town of Texico was a municipality having a population of less than 1,000 persons at the time of the election held there on June 9, 1914, and petitioner alleges that the amendatory act of 1917 cannot apply to Texico until four years after that election. Petitioner depends upon section 5 of the municipal act to support this theory, which, as indicated, supra, provided that “such question” (referring to the question of local option) shall be submitted but once every four years, and then only upon petition filed as herein provided.

It is clear that the class of municipalities in which Texico was has been taken out from under the application of the municipal act, and we are therefore left to a consideration only of the question of whether or not the Legislature, in its wisdom, could make provisions for governing future elections in municipalities of this class without regard to the inhibition of the former act against the resubmission of the question within four years. It is clear that Texico is not to be longer governed by the provisions of chapter 75, but, on the contrary, must look to the district act as defining her rights, at least prospectively. If we were to hold that she had a right to claim her privilege of asking that four years should elapse before the question should again be submitted, it would seem that we would again be compelled to hold, after that period of time had elapsed, that the question could only again be submitted upon petition filed as provided for by the municipal...