State ex rel. Maloney v. Sierra

• Decision Date: 23 November 1970
• Docket Number: No. 8964,8964
• Citation: 82 N.M. 125,477 P.2d 301,1970 NMSC 144
• Parties: STATE of New Mexico ex rel., James A. MALONEY, Attorney General, Plaintiff-Appellant, v. David R. SIERRA (Substituted for L. A. McCulloch, Jr.), Director, Department of Alcoholic Beverage Control, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 301

477 P.2d 301

82 N.M. 125

STATE of New Mexico ex rel., James A. MALONEY, Attorney General, Plaintiff-Appellant, v. David R. SIERRA (Substituted for L. A. McCulloch, Jr.) Director, Department of Alcoholic Beverage Control, Defendant-Appellee.

No. 8964.

Supreme Court of New Mexico.

Nov. 23, 1970.

James A. Maloney, Atty. Gen., Richard J. Smith, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant

Frank P. Dickson, Jr., Albuquerque, for defendant-appellee.

OPINION

McKENNA, Justice.

The Attorney General filed a declaratory judgment action under our §§ 22--6--1 to 22--6--3, N.M.S.A.1953, against the Director of the Department of Alcoholic Beverage Control. He sought a ruling (1) that ch. 280, Laws 1969, signed by the Governor on April 7, 1969 (§§ 46--10--14.1, 46--10--14.5, N.M.S.A.1953 (1969 Supp.)), is unconstitutional; (2) that ch. 216, Laws 1969, signed by the Governor on April 3, 1969, not codified in our statutes, is the controlling statute and that it permits the sale and consumption of alcoholic liquors by the drink on licensed premises of dispensers on Sundays between the hours of 7:00 a.m. until midnight, and (3) that the defendant Director be enjoined from enforcing ch. 280, supra.

The Director answered praying that the district court declare ch. 280 constitutional, that its enactment repealed ch. 216, and in the event ch. 216 is in effect, it does not permit the sale by drink during the Sunday hours but only the service and consumption thereof in accordance with proposed regulation No. 21 of the Director. This proposed regulation generally dealt with the serving of alcoholic beverages on Sundays in counties not subject to the county option provision of ch. 280, provided such beverages are 'pre-sold or granted without cost' on a preceding legal day.

The Intervenors maintain public horserace tracks in the state and are the owners of liquor licenses. They opposed the position of the Attorney General and claimed that § 2, ch. 280, is constitutional and severable from any unconstitutional portions of ch. 280 and that § 2 permitted them to sell, serve or permit the consumption by the drink on their licensed premises on Sundays during racing reason between the hours of 12:00 noon and 11:00 p.m.

The defendant Director filed a counterclaim for a declaratory judgment, asking for a construction of § 7(C), ch. 197, Laws 1969 (§ 46--2--14(C), N.M.S.A.1953 (1969 Supp.)):

'To be effective, any regulation issued by the director shall be reviewed by the attorney general prior to being filed as required by law and the fact of his review shall be indicated thereon.'

In his counterclaim the Director said that he submitted his regulations 21, 22 and 25 to the Attorney General who rejected them. He claimed that the Attorney General had no power under § 7 of the Act, supra, to reject his proposed regulations, and that a rejection did not affect their validity or enforceability; but if the Attorney General had power to reject his proposed regulations, the action rejecting the three particular regulations was unlawful, arbitrary, capricious and unreasonable. The Attorney General replied that his rejection of the regulations was valid, and denied any unlawful exercise of his authority.

The issues were submitted to the court on stipulated exhibits. Before proceeding any further, we quote in part the liquor acts involved:

Chapter 216, Laws of 1969, First Session of Twenty-Ninth Legislature, signed April 3, 1969, not codified.

'AN ACT

RELATING TO ALCOHOLIC LIQUORS; AND AMENDING SECTION 46--10--14.1 NMSA 1953 (BEING LAWS 1959, CHAPTER 303, SECTION 1) TO PROVIDE FOR THE SERVING OF LIQOUR ON SUNDAY BY DISPENSERS.

'BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

'Section 1. Section 46--10--14.1 NMSA 1953 (being Laws 1959, Chapter 303, Section 1) is amended to read:

"46--10--14.1. HOURS AND DAYS OF BUSINESS:--

"A. The license of retailers of alcoholic liquors shall allow them to sell and deliver alcoholic liquors, and the licenses of dispensers of alcoholic liquors and club liquor licensees shall allow them to sell, serve, deliver and permit the consumption of alcoholic liquors on their licensed premises on Mondays from 7:00 a.m. until midnight, on other weekdays from after midnight of the previous day until 2:00 a.m., then from 7:00 a.m. until midnight, and on Sundays only after midnight of the previous day until 2:00 a.m. The licenses of dispensers of alcoholic liqours shall allow them to serve and permit the consumption of alcoholic liquors on their licensed premises on Sundays from 7:00 a.m. until midnight. * * *

"B. It is unlawful for any licensed retailer of alcoholic liquors to sell or deliver alcoholic liquors, or for any licensed dispenser or club to sell, deliver, serve or permit the consumption of alcoholic liquors on their licensed premises during hours other than those prescribed by this section."

Chapter 280, Laws of 1969, First Session of Twenty-Ninth Legislature, signed April 7, 1969 §§ 46--10--14.1, 46--10--14.5, N.M.S.A.1953 (1969 Supp.).

'AN ACT

RELATING TO ALCOHOLIC LIQUORS; PROVIDING FOR COUNTY-WIDE LOCAL OPTION FOR SUNDAY SALES IN CERTAIN COUNTIES; PROVIDING FOR SUNDAY SALES AT CERTAIN RACETRACKS; REPEALING SECTION 46--10--14.1 NMSA 1953 (BEING LAWS 1959, CHAPTER 303, SECTION 1); ENACTING A NEW SECTION 46--10--14.1 NMSA 1953.

'BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

'Section 1. Section 46--10--14.1 NMSA 1953 (being Laws 1959, Chapter 303, Section 1) is repealed and a new Section 46--10--14.1 NMSA 1953 is enacted to read:

"46--10--14.1. HOURS AND DAYS OF BUSINESS.--

"A. Alcoholic liquors shall be sold, served, delivered or consumed on licensed premises only during the following hours and days specified:

"(1) on Mondays from 7:00 a.m. until midnight;

"(2) on other weekdays from after midnight of the previous day until 2:00 a.m., then from 7:00 a.m. until midnight; and

"(3) on Sundays only after midnight of the previous day until 2:00 a.m. except as provided in Subsection B of this section.

"B. Alcoholic liquors by the drink may be sold, served and consumed on licensed premises where the licensee holds a dispenser's license, on Sundays from the hours of 12:00 noon to 11:00 p.m., hereinafter called 'Sunday sales.'

"C. The provisions of Subsection B are not self-executing but shall become effective as follows:

"(1) the county commissioners of each county having a population over one hundred fifty thousand at the last official federal decennial census and in each county of the first class having more than twenty-seven million dollars ($27,000,000) in assessed valuation and having a population of not more than sixteen thousand (16,000) and not less than fourteen thousand (14,000) persons according to the 1960 federal decennial census, and in each county of the first class having more than twenty-one million dollars ($21,000,000), but less than twenty-five million dollars ($25,000,000) in assessed valuation and having a population of not more than eight thousand (8,000) and not less than seven thousand (7,000) persons according to the 1960 federal decennial census, shall adopt a resolution submitting to the voters of the county the question of permitting Sunday sales within the county;

"(2) the question shall be voted upon by the voters of the county at the next succeeding regular or special county-wide election, excepting that the question shall not be put to the voters at the election to select delegates to the state constitutional convention, or the election to approve a new constitution;

"(3) if a majority of all the voters of the county voting on the question of Sunday sales vote for Sunday sales, Sunday sales shall be legal within the exterior boundaries of that county. If a majority of voters of the county voting on the question do not approve Sunday sales, the question shall not again be submitted by the county commissioners until the expiration of a period of four years from the date of the election.

"D. Dispenser, retail and club licensees shall close their places of business during voting hours on the days of the primary election, general election, elections for officers of a municipality and any other election as prescribed by the rules and regulations of the chief of the division of liquor control. Dispenser, retail and club licensees shall also close places of business from 2:00 a.m. on Christmas Day until 7:00 a.m. on the day after Christmas.'

Section 2. SUNDAY SALES AT RACETRACKS--Notwithstanding other provisions of the Liquor Control Act or Section 46--10--14.1 NMSA 1953, or the outcome of any election, it is lawful for the holder of a dispenser's license whose licensed premises are located on a public horse-race track, licensed by the state racing commission, to sell, serve or permit the consumption of alcoholic liquors by the drink on Sunday during the racing season between the hours of 12:00 noon and 11:00 p.m.'

The district court determined that an actual controversy existed between the parties and that the public interest required a settlement of the controversy. It found that only three counties, Bernalillo, Lincoln and Taos, qualified to conduct a local option election under ch. 280, to decide whether Sunday sales would be permitted. It found Section 1 of ch. 280, supra, unconstitutional. The specific finding was:

'12. That Section 1, Chapter 280, Laws of 1969, violates Article IV, Section 24, of the New Mexico Constitution. The classification of counties made therein is not based on any substantial distinctions which make the three counties to whom it applies so different from any of the other counties in the state as to require different legislation with respect to them. In addition, the characteristics which form the basis of the classification, to-wit, population and amount of assessed valuation in said counties, are not germane to the sale of alcoholic liquors on Sunday.'

As to Chapter 216, the court found:

'16. That Subsection A...