MARES v. KOOL

• Decision Date: 22 November 1946
• Docket Number: No. 4986,4986
• Citation: 177 P.2d 532,51 N.M. 36
• Parties: MARES v. KOOL et al.
• Court: New Mexico Supreme Court

51 N.M. 36

177 P.2d 532

MARES

v.KOOL et al.

No. 4986.

Supreme Court of New Mexico.

Nov. 22, 1946.

[177 P.2d 532, 51 N.M. 37]

William T. O'Sullivan, of Albuquerque, for petitioner.

Donald B. Moses and Jethro S. Vaught, Jr., both of Albuquerque, for respondents.

HUDSPETH, Justice.

This is an original proceeding in which an alternative writ of prohibition has been issued commanding the Honorable Albert R. Kool as Judge of the Second Division of the District Court of the Second Judicial District of the State of New Mexico sitting in and for the County of Bernalillo to desist and refrain from taking any further proceeding in a certain cause appealed from the Police Judge of the City of Albuquerque and now pending in said court. It appears that petitioner was arrested by police of the City of Albuquerque on a warrant issued by E. C. Gober, Police Judge of the City of Albuquerque, on a complaint which was not signed, although the signature of 'E. C. Gober' appears beneath the jurat attesting that the same was 'subscribed and sworn to' before the police judge; that the petitioner deposited with the Police Department of the City of Albuquerque the sum of $105 in cash as bond for the appearance of the petitioner in police court to answer the 'complaint' on the 26th of March, 1945. Petitioner alleges:

'That on said 26th day of March, 1945, upon the advice of counsel, your petitioner disregarded said 'complaint,' so-called, and said warrant of arrest, and did not appear in said Police Court for the scheduled hearing or trial of the charges contained in said 'complaint'; that by reason of such failure to appear as aforesaid, said Police Judge thereupon declared the bond aforesaidto be forfeited by your petitioner and, pursuant to the mandatory provisions of N. M. S. A., 1941 Comp., Sec. 68-317, subd. 6-c, directed that the appropriate motor vehicle authorities of the State of New Mexico be notified of the alleged 'conviction' of your petitioner of the crime of operating a motor vehicle while allegedly under the influence of liquor, as required by said statute, so that your petitioner'slicense might be cancelled or revoked.'

Petitioner immediately appealed to the district court. The appeal was brought on for hearing on the first day of June, 1946. After witnesses were sworn, counsel for petitioner moved for the quashing of the warrant and the dismissal of all the proceedings below; and the City Attorney moved for leave to amend the complaint below by inserting therein, among other things, the signatures of complaining witnesses, to which petitioner's counsel objected. The district court denied the motion of petitioner and granted the motion of the City of Albuquerque for leave to amend the complaint, and the case was set down for trial on the merits. Whereupon the petition was filed in this court, and the alternative writ of prohibition was issued. Respondent has filed a motion to dismiss.

The municipal ordinance under which the prosecution was brought was adopted by the City Commission of Albuquerque on the 14th day of September, 1937, and reads as follows:

'Section 28. Operation of Vehicles by Persons Under the Influence of Liquor.

'(a) It shall be unlawful for any person while in an intoxicated condition caused by the use of alcohol, drugs, narcotics, and any other cause whatever, to operate, or attempt to operate, a vehicle upon any street or any public way in the City of Albuquerque.

'(b) It shall be unlawful for any person to knowingly and wilfully accompany an intoxicated person who is operating a vehicle.'

The penalties are a fine not to exceed $200 or by imprisonment in the city jail for a period of not less than one day nor more than ninety days, or both such fine and imprisonment in the discretion of the court.

Petitioner challenges the authority of the City of Albuquerque to adopt the above ordinance, and cites Clayton v. State, 38 Ariz. 135, 297 P. 1037, in support of his theory that where the Legislature has enacted laws fully covering the field of motor traffic, and penalized the offense of operating a vehicle while under the influence of intoxicating liquor, the city is precluded from enacting a valid ordinance punishing the identical offense, without specific legislative authority.

The Uniform Motor Vehicle Act, chapter 75 of the Session Laws of 1929, Section 2, N. M. S. A., 1941 Comp., Sec. 68-502, is as follows:

'It shall be unlawful and punishable as provided in section 60 ([N. M. S. A., 1941 Comp.,] § 68-902) of this act for any person whether licensed or not who is an habitual user of narcotic drugs or any person who is under the influence of intoxicatingliquor or narcotic drugs to drive any vehicle upon a highway within this state.'

The penalties are: Jail sentence of not less than 30 days and not more than one year, or fine of not less than $100 nor more than $1,000, or by both such fine and imprisonment, for the first offense, and a revocation of the driver's license.

The courts are divided on the question of the validity of such ordinances. See Annotations 21 A.L.R. 1186, 64 A.L.R. 993, 147 A.L.R. 522, 566, and 2 McQuillin (Revised) Sec. 683.1, p. 707.

The Supreme Court of Arizona in Clayton v. State, supra, quotes from Sec. 408 of Arizona Revised Code of 1928, language which appears in N. M. S. A., 1941 Comp. Sec. 14-1805, enacted in the year 1884, and says [38 Ariz. 135, 297 P. 1042]:

'We think the power therein conferred 'to regulate the use' of streets, alleys, etc., must be construed in connection with the limitations expressed and implied in the Highway Code. The latter has declared who may drive motor vehicles upon thehighways of the state; has provided for their licensing (section 1655 et seq.), and the grounds upon which their licenses may be revoked (section 1664 et seq.), naming as one of such grounds the driving of a motor vehicle while under the influence of intoxicating liquor, and under section 1688 has made it an offense to drive while in such condition. In other words, the Legislature in the Highway Code has made all of these things, as to the qualification or fitness of motor vehicle drivers and their punishment for infractions of the regulations therein prescribed, 'state affairs,' taking from municipalities the power to legislate thereon as effectively as if directly prohibited to them.

We have additional statutes bearing upon the subject. Section 68-533, N. M. S. A., 1941 Comp., L.1929, Ch. 75, Sec. 32, reads:

'* * * Local authorities may also adopt and enforce ordinances, not in conflict with the provisions of this act, relative to the operation of vehicles upon the highways within their respective jurisdictions.'

And a later act, N. M. S. A., 1941 Comp., Sec. 68-317, Chapter 110, § 17, Laws 1937, Uniform Operators' and Chauffeurs' Licenses Act, provides:

'68-317. Mandatory revocation of license by the department.-(a) The department shall forthwith revoke the license of any person upon receiving a record of the conviction of such person of any of the following crimes, whether such conviction be had under any state law or local ordinance:

'1. Manslaughter resulting from the operation of a motor vehicle.

'2. Driving a motor vehicle while under the influence of an intoxicating liquor or narcotic drug: Provided, that for the purpose of this act marijuana (Cannabis Indica) shall be classified as a narcotic drug. * * *'

In addition we have N. M. S. A., 1941 Comp., 14-2201, commonly termed the General Welfare Clause quoted in City of Clovis v. Dendy, 35 N.M. 347, 297 P. 141, 142, where we said:

'We think section 90-901, 1929 Comp.,...