Mitchell v. City of Roswell.

• Decision Date: 18 February 1941
• Docket Number: No. 4575.,4575.
• Citation: 111 P.2d 41,45 N.M. 92
• Parties: MITCHELL et al.v.CITY OF ROSWELL.
• Court: New Mexico Supreme Court

45 N.M. 92

111 P.2d 41

MITCHELL et al.

v.CITY OF ROSWELL.

No. 4575.

Supreme Court of New Mexico.

Feb. 18, 1941.

Appeal from District Court, Chaves County; James B. McGhee, Judge.

Declaratory judgment action by Joe Mitchell and others against the City of Roswell to have declared the rights of the parties under an ordinance. From a judgment dismissing the case, the plaintiffs appeal.

Affirmed.

Where plaintiffs were engaged in business of importing high-grade bulls and livestock for sale and pending sale the animals were kept in large barn on plaintiffs' premises or in a corral adjoining it, the fact that plaintiffs' stable and lot were kept clean and sanitary was no ground for holding ordinance prohibiting keeping of certain animals within restricted district of city invalid. Comp.St.1929, § 90-402, subds. 45, 48, 53; § 90-901.

E. L. Medler and Ove E. Overson, both of Hot Springs, for appellants.

Atwood & Malone, of Roswell, for appellee.

BRICE, Chief Justice.

This action was brought by appellants (plaintiffs below) under authority of Ch. 143, L.1935, known as the Declaratory Judgment Act, to have declared the rights of the parties regarding the subject matter of this suit. A demurrer to the complaint was sustained by the trial court and, the plaintiffs having refused to amend, judgment was entered dismissing the case. The question is whether the complaint states a cause of action.

The facts alleged are substantially as follows:

In the month of May, 1936, the plaintiff Joe Mitchell became the owner of certain real property in the City of Roswell and within the restricted district hereinafter mentioned, of the value of $2,500, and now of the value of $3,500. Plaintiffs Joe Mitchell & Sons were engaged in the business of importing high-grade Hereford bulls and livestock from the state of Texas into New Mexico for sale in the City of Roswell, and for this purpose operated and maintained said premises as a “Hereford Bull Sale Stable.” Such business was conducted under authority and permit of the New Mexico Cattle Sanitary Board. In the regular course of business, and pending the sale of bulls and other livestock, the animals were kept for the purpose of sale only, in a large barn on said premises, or in a corral adjoining it. In conducting the business the plaintiffs paid the City of Roswell occupation taxes for the years of 1938 and 1939.

The premises were kept in a clean and sanitary condition, free of filth, manure, offal, urine or other materials which might give off offensive smells or odors. Gravel one foot in depth was placed upon the yard or corral so that no mud or mire could accumulate.

The improvements on said property, consisting of a barn, feed and watering troughs and corrals, adapted to, and built for the purpose of maintaining a business of the character conducted by plaintiffs, are practically valueless for any other purpose.

On the 2d day of May, 1939, after the plaintiffs had been conducting said business from May 1936 to May 1939, the defendant passed Ordinance No. 569, containing the following preamble:

“Whereas, the keeping or confinement of one or more horses, mules, burros, cows, goats, sheep, swine or other livestock within the thickly populated residential and business sections of the City of Roswell constitutes an offensive and unwholesome establishment, detrimental to the health and general welfare of the residents of the City of Roswell, and creates an unsanitary condition not conducive to the suppression of diseases, and

“Whereas, the City Council of the City of Roswell, New Mexico, has determined that the sections of said City hereinafter enumerated, which shall be referred to as the Restricted Area, are generally used for business or residential purposes and are situated and populated to the extent that the keeping of such livestock is deleterious to the health and general welfare of the City, and

“Whereas, the City Council of the City of Roswell, New Mexico, has determined that by reason of the heavy traffic upon State and Federal highways within the City limits of the City of Roswell, the confinement or tethering of livestock within seventy-five feet of any such State or Federal highway constitutes a menace to the passage of traffic upon such highway and endangers the welfare of persons traveling thereon.”

The material part of the Ordinance involved in this appeal is as follows:

Sec. 1: “From and after the 1st day of June, 1939, it shall be unlawful for any person to keep, cause, or permit to be kept, or to confine one or more horses, mules, burros, cows, goats, sheep, swine or other livestock at any place within the boundaries of the Restricted Area of the City of Roswell as hereinafter defined.

Sec. II: “That the Restricted Area of the said City of Roswell within which the keeping or confinement of livestock is hereby prohibited shall be that portion of the City of Roswell within the following boundaries, to-wit:

“Beginning at the center of the intersection of Main Street and Twelfth Street within the City of Roswell; thence west to the center of Lea Avenue; thence South to North Spring River; then in a westerly direction along North Spring River to the center of Union Avenue; thence south to the intersection of Union Avenue and Albuquerque Street to the intersection of said street with Virginia Avenue; thence north along the center of Virginia Avenue to North Spring River; thence in a westerly direction along North Spring River to the center of Main Street; thence North on Main Street to the point of beginning.”

The zone or district in which the keeping of animals and livestock is prohibited comprises practically all of the business section and most of the residential section of the City of Roswell.

Section III of the Ordinance is as follows: “From and after the 1st day of June, 1939, it shall be unlawful for any person to confine one or more horses, mules, burros, cows, goats, sheep, swine or other livestock in any enclosure situate within seventy-five feet of any State or Federal Highway within the limits of the City of Roswell, or to tether such animal within seventy-five feet of such State or Federal Highway.”

Section IV provides for a penalty for the violation of the Ordinance and Section V recites, “Nothing in this Ordinance shall be construed as regulating or prohibiting the keeping or confining of dogs or cats.” Section VI repeals all Ordinances in conflict, while section VII provides that should any part of the ordinance be declared unconstitutional, the remainder of said ordinance not so affected shall remain in force.

After the passage of this Ordinance May 2, 1939, the City Sanitary Inspector of Roswell notified the plaintiffs in writing to move their Hereford Bulls and livestock from the premises and out of said zone and district, and to cease and further desist from the operation of their said business.

Plaintiffs, upon order from defendant, and under protest, removed their livestock from said premises in June, 1939, and since have not conducted their business thereon; during which time their property has remained vacant and they have been deprived of its use for said business, in the operation of which they made large profits.

Said business is not operated in the residential part of the city, or in its main business district, but in what might be termed its “semiindustrial district,” and is more than seventy-five feet from any federal or state highway; but is within the restricted district of said ordinance.

It is contended first that the ordinance is unreasonable, contrary to the general public policy of the State of New Mexico, and is discriminatory.

Contrary to the assertion of appellee, we do not find any statute expressly granting to municipalities authority to enact Ordinance 569. If there is such authority it must be found within the general powers granted by the following paragraphs of Sec. 90-402, N.M.Sts.1929:

(45) “To declare what shall be a nuisance and to abate the same, and to impose fines upon parties who may create, continue or suffer nuisances to exist.”

(48) “To do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease.”

(53) “To prohibit any offensive and unwholesome business or establishment within, or within one mile of, the limits of the corporation.”

And “Municipal corporations shall have power to make and publish, from time to time, ordinances not inconsistent with the laws of the state, for carrying into effect or discharging the powers and duties conferred by law, and such 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.” Sec. 90-901, N.M. Sts.1929.

[1] The fact that plaintiffs' improvements were especially built for, and adapted to, business of the character conducted by him, and that he will suffer a financial loss if he is prevented from so using them, are not alone grounds for holding the ordinance void under any provision of the Federal or State Constitutions.

[2][3][4][5] All property and property rights are held subject to the fair exercise of the police power (3 McQuillin, 2d Ed., § 939); and a reasonable regulation enacted for the benefit of the public health, convenience, safety or general welfare is not an unconstitutional taking of property in violation of the contract clause, the due process clause, or the equal protection clause of the Federal Constitution. Article 1, § 10; Amend. 14. Atlantic Coast Line Ry. Co. v. Goldsboro, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721. A vested interest in property cannot be asserted against it upon the theory that the business was established before the statute or ordinance was passed. When the power is authorized and reasonably enforced, it matters not that the investment in property, as it is alleged here, was made prior to the...