State v. Turley
| Decision Date | 25 November 1980 |
| Docket Number | No. 4354,4354 |
| Citation | 96 N.M. 592,1980 NMCA 167,633 P.2d 700 |
| Parties | STATE of New Mexico, Plaintiff-Appellant, v. Clarence "Frank" TURLEY, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Defendant was charged with unlawfully excavating, with the use of mechanical earth moving equipment, an archaeological site for the purpose of collecting or removing objects of antiquity; the site being located on private land. The criminal information specifically charged that the "objects" were of ancient, native American culture and that the site was an Indian ruin. The information also charged that the excavation was by use of mechanical earth moving equipment a front-end loader. It is not disputed that the excavation was on private land, that the excavation was of an archaeological site, and that the purpose of the excavation was to remove objects of antiquity. The unlawfulness charged was that the excavating was done without a permit. It is stipulated that defendant did not obtain a permit; he did not apply for a permit. The trial court dismissed the information; the State appealed. We discuss: (1) the statutory meaning; (2) ascertaining legislative intent; and (3) the claim that the statute is void for vagueness.
The Cultural Properties Act, §§ 18-6-1 through 18-6-17, N.M.S.A.1978, contains a legislatively-declared purpose. Section 18-6-2 states, as a part of that declaration, "that the public has an interest in the preservation of all antiquities, historic and prehistoric ruins, sites, structures, objects and similar places and things for their scientific and historical information and value ...." Section 18-6-2 states the purpose of the Act is "to provide for the preservation, protection and enhancement of structures, sites and objects of historical significance within the state ...." This New Mexico statute complements federal legislation. See 16 U.S.C.A. §§ 461, 469, 470, 470aa. No claim is made that the New Mexico Act had an improper purpose or that the Legislature lacked the power to enact this legislation. See City of Sante Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 389 P.2d 13 (1964); compare National Advertising Co. v. State, Etc., 91 N.M. 191, 571 P.2d 1194 (1977); Santa Fe Commun. Sch. v. New Mexico State Bd. of Ed., 85 N.M. 783, 518 P.2d 272 (1974).
The Cultural Properties Act regulates excavation of archaeological sites on both state and private lands. By § 18-6-9, the state reserves the exclusive right of field archaeology on sites owned or controlled by the state, and makes it a misdemeanor "for any person or his agent" to excavate any object of historical or archaeological value without a valid permit. By § 18-6-11, the excavation of archaeological sites on private land is regulated. A comparison of §§ 18-6-9 and 18-6-11 shows that excavation of sites on private land is less extensively regulated than similar excavations on public land.
This case involves excavation on private land. The pertinent provisions of § 18-6-11 state:
A. It is unlawful for any person to excavate with the use of mechanical earth moving equipment an archaeological site for the purpose of collecting or removing objects of antiquity when such archaeological site is located on private land in this state, unless such person has first obtained a permit issued pursuant to the provisions of this section for such excavation. As used in this section an "archaeological site" means a location where there exists material evidence of the past life and culture of human beings in this state and includes the sites of burial and habitats of human beings: Indian, Spanish, Mexican and other early inhabitants of this state.
D. Nothing in this section shall be deemed to limit or prohibit the use of the land on which the archaeological site is located by the owner of such land, or to require such owner to obtain a permit for personal excavation on his own land, provided that no transfer of ownership is made with the intent of excavating archaeological sites as prohibited in this section.
Defendant is not the owner of the land being excavated. The trial court dismissed the information on the basis that defendant was not required to have a permit under § 18-6-11(A) because his excavation was with the consent of the landowner.
In ruling that defendant had the consent of the landowner the trial court referred to an agreement between defendant and the landowner. The State asserts that this Court cannot consider this contract because it was never offered and admitted into evidence in the trial court. This claim disregards the stipulation between the parties, part of which was that "the defendant and the property owner entered into a written agreement attached hereto." Another part of the stipulation also referred to the "attached" contract. The contention that the contract was not before the trial court is frivolous.
Pursuant to R.Crim.App.Proc. 209(a), the trial court's order designated that "all" proceedings be included in the appellate transcript. The contract was not included; this Court requested that the contract be forwarded to the Court of Appeals and this was done. Because the contract was not included in the transcript filed with this Court, the State contends we may not consider it. We need not consider the consequences to the State's appeal of the State's failure to have the contract included in the transcript; the contract is before us pursuant to this Court's request and we had authority to make such a request. See State v. Garcia, 92 N.M 730, 594 P.2d 1186 (Ct.App.1978).
It is not necessary to set forth the provisions of the contract. A permissible inference from the provisions of the contract is that defendant was the agent of the landowner in performing the excavations which were the basis for the criminal charge. The trial court drew this inference. It ruled that defendant was not subject to prosecution for excavating with mechanical earth moving equipment without a permit, that "defendant, acting as an agent for the land-owner is exempt from prosecution" under § 18-6-11(D).
Section 18-6-11(D) does not contain the word "agent". This absence is to be compared with § 18-6-9(B), which makes it a misdemeanor "for any person or his agent" to excavate on state land without a valid permit. The absence of a reference to "agent" in § 18-6-11(D) is also to be compared with § 18-6-11(A) which makes excavations without a permit unlawful "for any person" The exemption from the permit requirement in § 18-6-11(D) provides that the landowner is not required to obtain a permit "for personal excavation on his own land". One rule of construction is that a statute is to be read as a whole so that each provision is considered in relation to every other part of the statute. State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977). Considering the relationship of the above provisions, § 18-6-11(D) does not exempt an agent of the owner from the permit required by § 18-6-11(A).
Disregarding the differences in statutory language discussed in paragraph (e), defendant asserts that the word "owner" at common law, included the owner's agent and contends that the word "owner" in § 18-6-11(D) also includes the owner's agent. This argument overlooks the express provisions of the statute; the owner is not required to obtain a permit for his personal excavations. The common meaning of "personal", which we apply, is "done in person without the intervention of another ... relating to oneself". Webster's Third New International Dictionary (1966). This statutory requirement of "personal" excavation cannot be reconciled with the contention that "owner" includes "agent", and makes the asserted common-law rule inapplicable. Southern Union Gas Company v. City of Artesia, 81 N.M. 654, 472 P.2d 368 (1970).
Defendant asserts that if "owner" is not construed to include the owner's agent, the result is absurd because contrary to the language in § 18-6-11(D) that the use of the land by the owner is neither limited nor prohibited. This contention disregards § 18-6-10(A) which states: "It is the declared intent of the legislature that field archeology on privately owned lands should be discouraged except in accordance with the provisions and spirit of the Cultural Properties Act ...." This provision is consistent with the purpose stated in § 18-6-2 to preserve and protect sites of historical significance. Permitting a landowner to conduct personal excavations on his own land, but requiring the owner's agent to obtain a permit, is not absurd; rather, this is consistent with § 18-6-2 and 18-6-10(A).
Section 18-6-11(E) provides penalties for violating § 18-6-11. Because the statute is penal, defendant asserts that any ambiguity should be strictly construed against the state. The meaning of "owner" in § 18-6-11(D) is not ambiguous; the strict construction rule is not applicable.
The discussion in paragraph (e), (f), (g) and (h) above answers the arguments on appeal as to the meaning of § 18-6-11(D). The contentions discussed in those paragraphs were not the basis for the trial court's decision; that basis is not discussed in the briefs.
The trial court remarked:
(L)et the record show that the court is ruling as a matter of law that based upon the testimony of Senator Ike Smalley, sponsor of the bill which ended up as Statute 18, 6-11, stated that he was instrumental in adding Section D to the original bill excepting the landowner or its agents from obtaining a permit to use mechanical machinery; with that testimony...
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