State v. Davis, 6413

• Docket Nº: No. 6413
• Citation: 65 N.M. 128, 333 P.2d 613
• Case Date: December 19, 1958
• Court: Supreme Court of New Mexico

Page 613

333 P.2d 613 65 N.M. 128 STATE of New Mexico, Plaintiff-Appellee,
v.
Janice E. Miles DAVIS, Wandel Massey, Elgin Spahr, William
C. (Claude) Davis, Danny Williams Bertha Foster,
Alpha and Omega, a Non-profit
Corporation, and Fred Zeissel,
Defendants-Appellants. No. 6413. Supreme Court of New Mexico. Dec. 19, 1958.

Page 614

[65 N.M. 130] Hartley, Buzzard & Patton, Clovis, for appellants.

Fred M. Standley, Atty. Gen., Hilton A. Dickson, Jr., Robert F. Pyatt, Asst. Attys. Gen., for appellee.

SHILLINGLAW, Justice.

Alpha and Omega is a nonprofit association organized for the promotion of the pleasure and recreation of the membership, to promote the civil welfare of the community, and to do such other things as might properly be done under the laws of the State of New Mexico. The club is located in a rented building on U. S. Highway 70 about three miles south of Clovis, New Mexico, in Curry County. The sale of alcoholic liquor being illegal in Curry County, the club maintains facilities whereby members may bring packaged liquor onto the premises for later consumption. Under the club's rules, packages are marked as property of the owning member and stored away until required by the member, at which time a service charge is collected. Although we have our doubts as to what contribution the association may be making to the 'civil welfare' of the community, such arrangement is entirely legal under our statutes.

Page 615

Following the conviction of defendants Elgin Spahr and William C. Davis for the sale of alcoholic liquor on the premises of the club, without a license to do so, and during the pendency of the appeal taken from that conviction, later reported as State v. Spahr, 64 N.M. 395, 328 P.2d 1093, the District Attorney of Curry County filed a complaint on the civil side of the District Court of Curry County asking that the premises be closed. This complaint named as defendants the Alpha and Omega Club, a nonprofit association; Janice E. Miles Davis and Wandel Massey as organizers and members and the latter as owner of the premises occupied by the association; Elgin Spahr as bartender; William C. (Claude) Davis as manager; and other defendants who were later dismissed. The complaint stated the prior criminal conviction and a belief in continued repetition of the illegal liquor sales on the premises and alleged 'that by reason of the manner in which said Association has been conducted in said premises, * * * same constitutes a * * * public nuisance * * * and * * * the defendants [should] be enjoined from their illegal activities, and the premises closured.'

A hearing was held at which no testimony was taken, although certain stipulations were entered and the court received certain exhibits tendered by the state. The court subsequently entered a decree finding that the defendants were maintaining a public nuisance and containing the following injunctive measures:

[65 N.M. 131] '* * * [T]he said building * * * is hereby closed for all purposes and shall not be reopened until such time as the defendant, Wandel Massey, or his successor in title, posts a cash bond in the sum of $1,000.00 with the Clerk of this Court conditioned upon his, or his successors' in...