State ex rel. Dickson v. Saiz
| Decision Date | 23 January 1957 |
| Docket Number | 6072,Nos. 6071,s. 6071 |
| Parties | STATE of New Mexico, ex rel. Hilton A. DICKSON, Jr., Chief of Liquor Control Division, Appellant, v. Jake SAIZ, d/b/a Jake's Market, Riverside, New Mexico, Appellee. STATE of New Mexico, ex rel. Hilton A. DICKSON, Jr., Chief of Liquor Control Division, Appellant, v. Alberto and Ernest GONZALES, d/b/a Ranchitos Riverside Bar, Taos, New Mexico, Appellees. |
| Court | New Mexico Supreme Court |
Louis C. Lujan, Santa Fe, for appellant.
Matias L. Chacon, P. R. Melendez, Espanola, E. P. Ripley, Santa Fe, for appellees.
Dean S. Zinn, Santa Fe, Irwin S. Moise, Lewis R. Sutin, Albuquerque, amici curiae.
M. W. Hamilton, Santa Fe, Sp. Atty. for The Bureau of Revenue.
The question for decision is whether Art. IV, Sec. 22, of the Constitution in giving the Governor power as to bills presented to him during the last three days of a legislative session, to veto 'any part or parts, item or items, of any bill appropriating money' which he disapproves, limits him in any exercise of the power to action on general appropriation bills.
The question arises on an appeal by the State from a judgment rendered by the district court of Santa Fe County upon a statutory review before him of the action of the Chief of the Liquor Control Division in which the defendant, Saiz, suffered revocation of his retail liquor license for the sale of liquor on Sunday in violation of the provisions of L.1939, c. 236. Although finding all issues of fact in favor of the State; nevertheless, the trial court entered an order setting aside the revocation directed by the Chief of the Liquor Control Division upon the ground the action of the Governor in attempting to exercise a partial veto as to a portion of the Liquor Control Act prohibiting Sunday sales as charged, he had nullified the whole act.
In other words, the trial court questioned the validity of the act upon the ground challenged and held the same to be unconstitutional. A like ruling and order was entered in another proceeding for review pending before the Court, entitled State v. Gonzales, in which the defendant's license had been revoked on similar grounds. An appeal was taken in each case and they have been consolidated here for purposes of consideration and decision, being appeal No. 6071, in which this opinion is being written and appeal No. 6072. It is agreed the action taken in appeal No. 6071 shall govern the disposition of appeal No. 6072.
Our decision on the question presented depends upon a proper construction of Article IV, Sec. 22 of the State constitution as it existed prior to the amendment of said section in 1953. Indeed, we seriously doubt whether the amendment could have any bearing on the matter. The constitutional provision mentioned, as it existed at all times material to this case, reads:
Counsel for the defendant (appellee) agree the only matters before us are questions of law which, before commencing their argument, they reduce to two in number, only the first of which calls for a decision, if an affirmative answer be properly supplied to it. The two questions as copied from the answer brief of defendants read:
So viewing the decisive questions presented, we proceed forthwith to a discussion and decision of the first of the two questions mentioned. The decisive language of the questioned section of Article 4 of our Constitution is to be found in the last two sentences thereof. Chapter 236, Laws 1939, was enacted on March 15, 1939, the very last day of the regular session of the legislature for that year and presented to the Governor forthwith. The questioned act having been presented to the Governor at the late hour it was during the regular session, naturally stood exposed to the hazard of a pocket veto unless the Governor took affirmative action approving or disapproving within the limited period of six days following adjournment. If for any reason at all he took no action, the bill suffered the same fate that would have befallen it, had the Governor formally exercised the power of complete veto as provided by the Constitution.
Suppose, however, the Governor did not wish to exercise a complete veto; that he saw in the bill much of merit and salutary benefit to the state. Must he take it or leave it as it stood? Must he destroy the good to eliminate the bad in the bill? That the Chief Executive, who at that time was the Honorable John E. Miles, resolved the question confronting him in favor of the power to exercise a partial veto, is demonstrated by his veto message which, so far as material, reads:
'* * * Whereas, Article 4, Section 22 of the Constitution of the State of New Mexico provides in part as follows:
"The governor may in like manner approve or disapprove any part or parts, item or items, of any bill appropriating money, and such parts or items approved shall become a law, and such as are disapproved shall be void, unless passed over his veto, as herein provided.'
'Whereas, it is my firm belief that House Bill No. 155 contains many salutary provisions for the welfare of the State of New Mexico, but also contains certain parts and items which I believe detrimental to the best interests of the State of New Mexico more particularly those provisions which would permit the sale of intoxicating liquors on the Sabbath Day during hours of worship and during periods which the people of the State of New Mexico are recreation bound, during which hours the sale of liquor would be detrimental to the welfare of the people of the State of New Mexico, and firmly believing that it is my duty to give unto Caesar that which is Caesar's and unto God that which is God's;
'Now Therefore, by virtue of the authority vested in me as Governor of the State of New Mexico, and pursuant to the provisions of Article 4, Section 22 of the Constitution of the State of New Mexico, I do hereby disapprove the following parts and items in House Bill No 155, to-wit:
'All part of sub-section (a) of Section 1204, which reads as follows:
"Provided, however, that the licenses of retailers shall allow them to sell and deliver alcoholic liquors, and the licenses of dispensers and clubs shall allow them to sell, serve, deliver and permit the consumption of alcoholic liquors on their licensed premises on Sundays between the hours of 2:00 P.M. and 11:00 P.M. in municipalities within or composing local option districts, and in counties composing local option districts, outside of the limits of the municipalities therein situated, if a majority of all votes cast at an election in any such municipality or county are in favor of the sale of alcoholic liquors on Sundays in each municipality or county.
'All of sub-section (b) of Section 1204.
'All of sub-section (c) of Section 1204.
'That part of sub-section (d) of Section 1204, which reads as follows:
"or on any Sunday between 2:00 A.M. and 2:00 P.M. and between 11:00 P.M. and midnight;
'All that part of sub-section (e) of Section 1204, which reads as follows:
"in any municipality or county which has not voted in favor of the sale of alcoholic liquor on Sundays therein, under the provisions of this Act,' and such parts so disapproved, I hereby declare to be by me void and the remainder of said House Bill No. 155 is hereby approved.
'Dated at Santa Fe, New Mexico This 17th Day of March, 1939.
'John E. Miles, Governor.'
It is with the last three sentences of Art. IV, Sec. 22 of the Constitution that we are primarily concerned. The first of these three sentences reads:
'Every bill presented to the governor during the last three days of the session shall be approved or disapproved by him within six days after the adjournment, and shall be by him immediately deposited with the secretary of state.'
The second sentence of the last three, immediately following the one just quoted, reads:
'Unless so approved and signed by him such bill shall not become a law.'
And then comes the final sentence, reading:
'The governor may in like manner approve or disapprove any part or parts, item or items, of any bill appropriating money, and such parts or items approved shall become a law, and such as are disapproved shall be void unless passed over his veto, as herein provided.'
These last three sentences are set out separately the better to understand their meaning. The first sentence of the three provides that every bill presented to the Governor...
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