Schwartz v. Town of Gallup

• Decision Date: 11 May 1917
• Docket Number: No. 2002.,2002.
• Parties: SCHWARTZ ET AL.v.TOWN OF GALLUP ET AL.
• Court: New Mexico Supreme Court

22 N.M. 521

165 P. 345

SCHWARTZ ET AL.

v.TOWN OF GALLUP ET AL.

No. 2002.

Supreme Court of New Mexico.

May 11, 1917.

Syllabus by the Court.

Notice of a special meeting of a city council or board of trustees of a town may be dispensed with, or its necessity waived, by the presence and consent of every one of those entitled to notice.

A statute requiring town ordinances to be recorded in an ordinance book is complied with by copying an ordinance on the typewriter and pasting the sheet of paper upon which it is copied in the ordinance book of such town in such manner as to become a permanent record.

Where the Legislature invests a municipality with power to license, regulate or prohibit the sale of intoxicating liquor, such municipality may impose a license fee in any amount, and the fee thus fixed is not open to review by the courts as to its reasonableness or unreasonableness or confiscatory nature.

A part of a law may be unconstitutional and the remainder of it valid, where the objectionable part may be properly separated from the other without impairing the force and effect of the portion which remains, and where the legislative purpose, as expressed in such valid portion, can be accomplished and given effect, independently of the void provision, and where if the entire act is taken into consideration it cannot be said that the enacting power would not have passed the portion retained had it known that the void provisions would fail.

The use of chairs and tables in a saloon or barroom may be prohibited by a municipality in this state, and likewise such municipality may, by ordinance, prohibit the use of blinds, curtains, or screens, and require a clear view from the street of the bar and room in which liquor is sold.

Appeal from District Court, McKinley County; Raynolds, Judge.

Action for injunction by John Schwartz and others against the Town of Gallup and others. Judgment for defendants dismissing the complaint, and plaintiffs appeal. Affirmed.

A part of a law may be unconstitutional and the remainder of it valid, where the objectionable part may be properly separated from the other without impairing the force and effect of the portion which remains, and where the legislative purpose, as expressed in such valid portion, can be accomplished and given effect, independently of the void provision, and where if the entire act is taken into consideration it cannot be said that the enacting power would not have passed the portion retained had it known that the void provisions would fail.

E. A. Martin, of Gallup, and E. W. Dobson, of Albuquerque, for appellants.

Ove E. Overson and A. T. Hannett, both of Gallup, for appellees.

ROBERTS, J.

Appellants, on the 10th day of June, 1916, were engaged in the retail liquor business in the town of Gallup, McKinley county, this state. On that date the board of town trustees of said town, at a special meeting enacted Ordinances Nos. 85 and 88. The second section of Ordinance 85, with which only we are concerned in this case, provided that on and after the 1st day of July, 1916, retail liquor dealers should pay the town of Gallup a license fee of $1,500 per annum, payable semiannually in advance. The last clause of this section further provided that all drug stores should be considered retail dealers under this section, when selling or offering for sale liquors as above provided, except under a doctor's prescription. Prior to the passage of this ordinance the license fee exacted from retail liquor dealers was $300 per annum.

Ordinance No. 88 required saloons to close at 12 o'clock midnight and to remain closed until 6 o'clock in the morning of any day, and to also close at 12 o'clock midnight of Saturday of one week and remain closed until 6 o'clock a. m. on the following Monday. The ordinance further prohibited any billiard or pool tables, chairs, tables, benches, or other furniture in any room where intoxicating liquor was sold. Winerooms were also prohibited, and likewise the use of curtains, screens, or other obstructions in the doors and windows in the lower story so that a clear and unobstructed view of the entire premises might be had from the outside. The ordinance further forbade the letting of any person into a saloon between the hour of 12 o'clock midnight Saturday night and the hour of 6 o'clock Monday morning following. Penalties were prescribed for violation of the ordinance.

On the 29th day of June, 1916, appellants filed in the district court of McKinley county their complaint, in which they sought an injunction against the town of Gallup, its officers, agents, and servants, from attempting to enforce the provisions of the two ordinances in question. In the complaint it was alleged that the appellants had been engaged in the retail liquor business in said town for some time, and had invested large sums of money in the purchase of furniture and fixtures, and had entered into contracts and leases for buildings in furtherance of their several businesses, that each and all were the holders of license of the United States government and of the state of New Mexico, authorizing them to engage in the liquor business, and that Ordinance No. 85, which fixed the license fee at $1,500, was unjust, unreasonable, oppressive, confiscatory, and prohibitive, and that such ordinance was an attempt to levy a tax upon said business in order to raise a revenue therefrom for the general purposes of said town. It was alleged that Ordinance No. 88 was discriminatory and a denial of equal protection of the law to retail liquor dealers in said town, and that under the provisions of said Ordinance No. 88 all retail liquor dealers doing business in said town were prohibited from having in their places of business any chairs, tables, pool tables, or other furniture, save and except the necessary bar and back bar, and were prohibited from having any screens, doors, curtains, or other obstructions in the front of their several places of business or in the windows or doors thereof; whereas, under the provisions of Ordinance No. 85, all drug stores within said town were, upon the payment of the license fee exacted from liquor dealers, permitted to conduct a retail liquor house without any restrictions as to tables, chairs, curtains, etc., so that an unjust and unfair discrimination existed under said ordinance between open saloons and secret tippling places under the guise of drug stores. The complaint set forth further grounds wherein it was claimed that said ordinances discriminated against saloon keepers and in favor of drug stores engaged in the sale of liquor.

It was further alleged that neither of said ordinances was passed at any regular meeting of the board of town trustees, but were pretended to have been passed at a special meeting held June 10, 1916, and that said ordinances were not properly passed, and that said meeting was not lawfully held, no notice having been given as required by the ordinance of said town.

Appellees interposed a demurrer to the complaint which was overruled by the court, whereupon they answered admitting the passage of the ordinance in question, and alleged that they were duly and legally enacted and denied the other material allegations of the complaint. Thereafter the record evidence, showing the enactment of the ordinances in question, was submitted to the court, and later the cause was set for hearing upon the merits. When the case was called for hearing appellees filed a motion for judgment on the ground that plaintff's complaint set up no facts which entitled them to relief in equity. This motion was sustained by the court, and judgment was entered dismissing the complaint. From this judgment this appeal is prosecuted.

[1][2] The first point urged by appellants is that Ordinances 85 and 88 were not lawfully adopted and passed by the board of trustees of the town of Gallup for two reasons: First, that Ordinance No. 4 of said town required that, whenever a special meeting of the board of trustees was deemed necessary, such meeting might be called by the chairman of the board and two members of the board, and that a written notice of the time and place of such meeting should be given to each and every member of the board, which notice was required to be served at least two hours previous to the time at which such special meeting was called to meet, which provisions were not complied with in calling and holding the special session at which said ordinances were enacted. The second point urged is that the ordinances in question were not recorded in the book which was kept for such purpose, but that said ordinances were merely pasted in at one end, and not recorded as required by the ordinance of said town.

There is no merit in either contention stated. Every member of the board of trustees and the president were present, consented to, and participated in the meeting. Notice of a special meeting of a city council or board of trustees of a town may be...