State v. Pate

• Decision Date: 12 March 1943
• Docket Number: No. 4657.,4657.
• Citation: 47 N.M. 182,138 P.2d 1006
• Parties: STATEv.PATE.
• Court: New Mexico Supreme Court

47 N.M. 182

138 P.2d 1006

STATE

v.PATE.

No. 4657.

Supreme Court of New Mexico.

March 12, 1943.

Appeal from Third District Court, Dona Ana County; Frenger, Judge.

George H. Pate was convicted by a justice of the peace of violation of statute requiring nonresident owner of a foreign motor vehicle, who accepts gainful employment within the state, to secure a license for the vehicle, and he appealed to the district court. On trial de novo the district court dismissed the complaint, and the State appeals.

Judgment affirmed.

Supreme Court could judicially notice the fact that nonresident automobile owners who remain in the state three months, and who are not gainfully employed, is made up largely of tourists.

Martin A. Threet, Dist. Atty., of Las Cruces, Edward P. Chase, Atty. Gen., and Howard F. Houk, Asst. Atty. Gen., for appellant.

Whatley & Garland, of Las Cruces, for appellee.

MARSHALL, District Judge.

This is an appeal by the state from the judgment of the district court of Dona Ana County, dismissing a criminal complaint against defendant, entered upon the latter's motion to dismiss at the close of all the evidence in the trial de novo of an appeal by defendant from a conviction before the Justice of the Peace of Precinct No. 6 in Dona Ana County, of a violation of L.1941, c. 165, § 1(a).

The portion of the act which the defendant was charged with violating, L.1941, c. 165, § 1(a), reads as follows: “A non-resident owner, except as otherwise provided in this section, owning any foreign vehicle which has been duly registered for the current calendar year in the state, county or other place of which the owner is a resident and which at all times when operated in this state has displayed upon it the number plate or plates issued for such vehicle in the place of residence of such owner, may operate or permit the operation of such vehicle within this state without registering such vehicle or paying any fees to this state, during a period of three months from the time such vehicle is first brought into the state. Provided, however, a non-resident owner of a vehicle of a type subject to registration in this State, who, while residing in this State, accepts gainful employment within this state shall for the purposes of, and subject to the provisions of this code, be considered a resident of this State.”

The language of the proviso, which is in italics, was added by amendment in 1941. Prior thereto no distinction was made in the application of this subsection of the act to a nonresident, whether gainfully employed or not. The amendment became effective on April 13, 1941. The evidence disclosed defendant's nonresidence. He arrived in Dona Ana County from Texas on July 4, 1941, driving a four-door Ford sedan of which he was the owner, duly registered and licensed in the state of Texas for the years 1941 and 1942. The defendant was a skilled fruit and canteloupe packer at which occupation he accepted gainful employment in Dona Ana County on July 16, 1941. Having failed and refused thereafter to obtain a New Mexico license for said automobile, as requested by an officer of the State Police, the defendant's arrest, trial before the justice of the peace and conviction followed as aforesaid. He appealed to the district court from the conviction and the ten-dollar fine imposed by the justice of the peace. In the district court when the evidence adduced by both sides was all in, the defendant interposed the following motion, to-wit:

“Mr. Garland: Comes now the defendant and moves the Court to dismiss the case against him on the following grounds, to-wit:

“1. The statute or amendment is unconstitutional in that it imposes a burden upon the Defendant and those in his class that is not imposed upon others of the same class, and therefore constitutes unwarranted class legislation because it discriminates in favor of one class of citizens, granting to them privileges and immunities denied others in the same class, in violation of the Fourteenth Amendment of the United States Constitution and in violation of Article 4, Section 26 of the New Mexico Constitution.

“2. The statute or amendment is unconstitutional in that it denies to the Defendant and those in his class the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution of the United States and by Article 2, Section 18 of the New Mexico Constitution.”

Treating the motion as an interlocutory one to quash a complaint charging facts as disclosed by the evidence, the court sustained the same and entered judgment dismissing the complaint. The state appeals under the authority of 1929 Comp., § 105-2527. The main question presented is whether the act as amended violates the Fourteenth Amendment to the federal constitution and Article 2, § 18 of the State Constitution as denying to the defendant the equal protection of the laws.

[1][2] The State as appellant places chief reliance on the decisions of this court in the cases of Davy v. McNeill, 31 N.M. 7, 240 P. 482, and Hutcheson v. Atherton, 44 N.M. 144, 99 P.2d 462, 465. We think those cases are not decisive. In them we recognized the general rule that in classifying for purposes of legislation the lawmakers are accorded a wide field of choice and that their groupings will not be disturbed merely because the basis adopted therefor may appear to us unreasonable and unjust, if it plausibly could have seemed reasonable to them. The question regarding classification is always, as said in Hutcheson v. Atherton, supra: “Is it so wholly devoid of any semblance of reason to support it, as to amount to mere caprice, depending on legislative fiat alone for support? If so, it will be stricken down as violating constitutional guaranties. But the fact that the legislature has adopted the classification is entitled to great weight.”

[3][4][5][6] We recognized, however, that legislative action in this behalf is necessarily subject to judicial review. The cases already cited, as well as the earlier ones of State v. Atchison, T. & S. F. Ry. Co., 20 N.M. 562, 151 P. 305, and McKinley Board of Education v. Tax Commission, 28 N.M. 221, 210 P. 565, 566, so affirm. As said in McKinley Board of Education v. Tax Commission: “The Legislature is not entitled to exercise an arbitrary power of classification. The power must be exercised within the limits of reason and of a necessity more or less pronounced. No definite rule can be laid down as to when classification is or is not justified. The special circumstances of each case govern the decision. The classification ‘must be based upon substantial distinctions.”’

[7][8] The test of reasonableness is applied alike whether the legislature be exercising the state's police power or its taxing power. Asher v. Ingels, D.C., 13 F.Supp. 654, and Gaines & Co. v. Holmes, 154 Ga. 344, 144 S.E. 327, 27 A.L.R. 98. Likewise, the distinction imposed should find some reasonable support in or relationship to the purpose of the law.

“Legislative classification to be constitutional must be based upon some substantial foundation, it may not be arbitrary, it must be germane to the purpose of the law.” H. P. Welch Co. v. State, 89 N.H. 428, 199 A. 886, 889, 120 A.L.R. 282. See, also, Commonwealth v. Alden Coal Co., 251 Pa. 134, 96 A. 246, L.R.A. 1916F, 154, and Morf v. Ingels, D.C., 14 F.Supp. 922.

Bearing these considerations in mind, it becomes pertinent to inquire what there is in gainful employment which creates that substantial distinction between the two classes or groups of nonresidents necessary to justify the imposition of the license fee as to the one and its exemption as to the other? We are unable to find a satisfactory answer to the inquiry nor can we see wherein the legislature plausibly could have done so.

As will be seen from the language of this section of the act the unemployed nonresident owning an automobile duly registered for the current year in another state enjoys immunity for three months from registering the same in New Mexico Whereas, another member of the same general group automatically becomes subject to the requirement of registration upon accepting gainful employment. Conceivably and under the strict letter of the act this could be true of employment for so short a period as a week, or even a single day, occurring at the beginning of a nonresident's three months' sojourn in the state.

The appellee cites instances of the operation of the act on nonresidents of his class to illustrate the hardship, injustice and inequality of the law. They follow from his brief:

“The surgeon for the Crippled Childrens' Hospital at Hot Springs, New Mexico, is a resident of Texas, but drives up to Hot Springs at regular intervals to treat patients at the hospital. He is gainfully employed in New Mexico. He is subject to the amendment.

“A teacher from another state desires to teach at the University of New Mexico or at State College during the summer. He will not be here full three months. No matter how valuable his services may be, if he accepts the position for the brief summer term, he is subject to the act.

“A musical, chautauqua or other educational or cultural troup may be asked to give performances in this state. If they drive their own cars into the State and receive compensation for their services, they are subject to the act.

“A great lecturer may be invited to speak or lecture at some town or institution in the State. If he drives his own car and is paid for his services, he may expect the State Police to cite him to the nearest tag agent.

“A citizen of Texas or some other state may be on his way to Arizona or California and passing through New Mexico. If sickness or some other reason force him to stop en route and work a day or so in New Mexico, he must obtain a license or be punished, even though he intends merely to pass through the State.

“If a doctor or lawyer from another state has but one patient or client in New Mexico, comes into the...