Perkins v. City of Roswell.

• Decision Date: 04 February 1911
• Citation: 16 N.M. 185,113 P. 609
• Parties: PERKINSv.CITY OF ROSWELL.
• Court: New Mexico Supreme Court

16 N.M. 185

113 P. 609

PERKINS

v.CITY OF ROSWELL.

Supreme Court of the Territory of New Mexico.

Feb. 4, 1911.

Syllabus by the Court.

In the trial of a cause with a jury for the alleged violation of a city ordinance which made it unlawful for any “person, firm or corporation to erect, keep, maintain or operate any private hospital, sanatorium, or health resort institution” within the limits of the city, evidence was introduced by the plaintiff against objection to the effect that it was “common knowledge in the neighborhood” that the defendant was running the place in question. Held, that the evidence was inadmissible and necessarily prejudicial to the defendant.

Appeal from District Court, Chaves County; before Justice Merritt C. Mechem.

Mrs. Mary Bell Perkins was convicted of violating an ordinance of the city of Roswell, and she appeals. Reversed and remanded.

The repeal of a city ordinance without any saving clause abates all prosecutions under it which may be pending.

On February 2, 1909, the city council of Roswell enacted an ordinance, which was approved by the mayor February 3, 1909, and was to be in force by its terms five days after its publication. It declared it to be unlawful to “erect, keep, maintain or operate any private hospital, sanatorium or health resort institution within the limits of the city of Roswell, whether same be used for boarding, lodging and treatment of patients, or for boarding or lodging alone, and for the purpose of this ordinance a place shall be deemed to be a private sanatorium that is used or kept for the reception or use of the guests afflicted with” certain enumerated diseases. It was made the duty of the sanitary policeman to give notice in writing to the owner, agent, or keeper of such a place to discontinue such use, and, if the notice was not complied with within five days, to enter complaint before the proper court, and cause prosecution for the violation of the ordinance, which it was provided should be punished by a fine of not less than $25 nor more than $50. On February 13, 1909, notice was served on the defendant, here the appellant, as required by the ordinance, and on February 19, 1909, a complaint was filed with a justice of the peace charging the defendant with violation of the ordinance by keeping, maintaining, and operating a private hospital, etc., after notice and contrary to the ordinance. It appeared that the defendant was the record owner of a dwelling house and the land on which it stood in the city of Roswell, where she resided with her husband. She claimed, and offered evidence tending to show, including the testimony of her husband, that he paid for the house and land named; that he had erected on the land some small cheap houses which he rented, and that he had the rent and she had no control of the rented houses; that she had formerly, but not after notice under the ordinance was served on her, furnished meals to tenants of the rented houses. The premises described were those of which the complaint was made on which the prosecution was based. The defendant was found guilty and sentenced to pay a fine of $25 and costs, from which judgment she appealed to the district court, where, after some interlocutory proceedings, a trial of the case with a jury was had. The defendant was found guilty, a motion for a new trial was overruled, and judgment against the defendant was rendered, from which she appealed to this court. After the appeal had been taken and the term of court at which the trial occurred had been adjourned, the defendant filed a motion to vacate the judgment on the ground that the ordinance had been...