State ex rel Coffin v. McCall
Decision Date | 09 August 1954 |
Docket Number | No. 5776,5776 |
Citation | 1954 NMSC 76,273 P.2d 642,58 N.M. 534 |
Parties | STATE ex rel. COFFIN v. McCALL et al. |
Court | New Mexico Supreme Court |
S. Morton Rutherford, III, Carlsbad, for appellants.
Neal, Nuemann & Neal, Carlsbad, for appellee.
This proceeding challenges the jurisdiction of municipalities to enact ordinances relating to the driving of motor vehicles by persons under the influence of intoxicating liquor or narcotic drugs.
Appellee was charged with having operated a motor vehicle in the City of Carlsbad while under the influence of intoxicating liquor in violation of Section 2-101 of the City Code, which provides:
'It shall be unlawful for any person who is an habitual user of narcotic drugs, or any person who is under the influence of intoxicating liquor or narcotic drugs, to drive any motor vehicle on the streets.'
The penalty provided therefor by the City Code read:
'Any person violating any of the provisions of this article shall, upon conviction, be fined a sum not less than $1.00 nor more than $100.00, or confined in the City jail for a term not exceeding 30 days.'
Appellee sought to prohibit respondent McCall, Judge of the Police Court of the City of Carlsbad, from trying him upon the charge. By permission of the court, the City was granted leave to intervene. A temporary writ of prohibition was granted and upon final hearing the writ was made permanent, and respondents appeal.
It is the position of appellee that the ordinance exceeds the grant of power conferred upon the municipality and that it is in conflict with Chapter 139, Laws 1953, New Mexico Statutes. On the other hand appellant contends that the ordinance is a valid exercise of its police powers.
A determination of the first question rests upon a correct interpretation of Sections 27 and 28 of the Act, which read:
The City of Carlsbad was organized pursuant to the provisions of Chapter 111, Laws 1903, section 14-317 et seq., 1941 Comp., and was vested with all the powers, privileges and duties of cities of the state, particularly to regulate the use of its streets. Section 14-2201, commonly termed as the 'General Welfare Clause', giving municipal corporations power to make and publish ordinances for carrying into effect and discharging the powers and duties conferred by law 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 its inhabitants, and to enforce obedience thereof by fines or by imprisonment, is a sufficient source of power to municipalities to enact and enforce the ordinance under consideration. City of Clovis v. Dendy, 35 N.M. 347, 297 P. 141, 142. Moreover, if there should be any doubt as to the powers thus granted municipal corporations, and we entertain none, section 27 itself is a sufficient grant. It provides that 'local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this Act.' Obviously, the section confers powers upon municipal corporations to enact ordinances consistent with the act. Section 28, subsection 1 to 11 inclusive, is a specific grant of power to enact ordinances in conflict therewith to the extent limited thereby.
In City of Clovis v. Dendy, supra, we said:
'We think section 90-901, 1929 Comp. (section 14-2201, 1941 Comp.), commonly termed the 'General Welfare Clause,' which gives municipal corporations power to make and publish ordinances, 'as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort...
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...and must be invalidated. The Supreme Court of New Mexico first articulated the conflict preemption test in State ex rel. Coffin v. McCall, 1954–NMSC–076, 58 N.M. 534, 273 P.2d 642, where it stated that “the test is whether the ordinance permits an act the general law prohibits, or vice vers......
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