Thompson v. McKinley County, 19119

• Decision Date: 20 August 1991
• Docket Number: No. 19119,19119
• Citation: 112 N.M. 425,1991 NMSC 76,816 P.2d 494
• Parties: Clarence Lyle THOMPSON and Tomada Enterprises, Inc., Plaintiffs-Appellants, v. McKINLEY COUNTY, et al., Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 494

816 P.2d 494

112 N.M. 425

Clarence Lyle THOMPSON and Tomada Enterprises, Inc., Plaintiffs-Appellants, v. McKINLEY COUNTY, et al., Defendants-Appellees.

No. 19119.

Supreme Court of New Mexico.

Aug. 20, 1991.

[112 N.M. 427] Robert W. Ionta, Gallup, for plaintiffs-appellants.

R. David Pederson, Gallup, for defendant-appellee McKinley County.

James L. Parmelee, Jr., Gallup, for defendant-appellee City of Gallup.

OPINION

BACA, Justice.

Clarence Thompson and Tomada Enterprises, Inc., plaintiffs below and owners of retail liquor establishments with drive-up windows, appeal the dismissal of their complaint against McKinley County and the city of Gallup in an action seeking to declare unconstitutional NMSA 1978, Section 60-7A-1(F) (Cum.Supp.1990, as amended 1991 N.M.Laws, ch. 255).¹ That subsection of the Liquor Control Act, NMSA 1978, Sections 60-3A-1 to -8A-19 (Repl.Pamp.1987 & Cum.Supp.1990, as amended 1991 N.M.Laws, ch. 255), provides for an election in eligible counties on the question: "Shall a retailer or dispenser be allowed to sell or deliver alcoholic beverages at any time from a drive-up window?" An eligible county is defined as one "that, according to motor vehicle statistics reported to the state highway and transportation department during the years 1985 and 1986, convicted more than twenty-five persons for each one thousand licensed drivers of driving while intoxicated offenses." Sec. 60-7A-1(F).²

We consider the following constitutional issues: (1) Whether the statute is prohibited special legislation; (2) whether it creates a classification in violation of equal protection; and (3) whether it violates the constitution because the subject of the law is not set forth in its title, and we affirm.

I. IS THE STATUTE PROHIBITED SPECIAL LEGISLATION?

Article IV, Section 24 of the New Mexico Constitution prohibits special legislation "where a general law can be made applicable." It does not exclude special legislation, however, when a law is required and general legislation cannot apply. Albuquerque Metro. Arroyo Flood Control Auth. v. Swinburne, 74 N.M. 487, 491, 394 P.2d 998, 1000 (1964).

The purpose and meaning of Article IV, Section 24, are aligned closely with those of the equal protection provisions in the United States and New Mexico Constitutions. Board of Trustees of Las Vegas v. Montano, 82 N.M. 340, 343, 481 P.2d 702, 705 (1971). Thus, we give great weight to the legislature's classification: "Only if a statutory classification is so devoid of reason to support it, as to amount to mere caprice, will it be stricken down." Id.; see also Keiderling v. Sanchez, 91 N.M. 198, 199, 572 P.2d 545, 546 (1977) ("The evil inherent in special legislation is the granting to any person or class of persons, the privileges or immunities which do not belong to all persons on the same terms.").

Our initial consideration is whether the legislation is special or general:

A special law is generally defined as legislation written in terms which makes [sic] it applicable only to named individuals or determinative situations. In contrast a law is considered general in nature if the subject of the statute may apply to, and affect the people of, every political subdivision of the state.

Keiderling, 91 N.M. at 199, 572 P.2d at 546; accord State v. Atchison, T. & S.F. Ry., 20 N.M. 562, 151 P. 305 (1915).

At issue in Atchison, Topeka & Santa Fe Ry. was whether a statute classifying Bernalillo and San Miguel counties as first class counties, when read together with a separate statute levying a special tax on first class counties, violated the constitution. No provisions had been made for any other counties to become first class, or for Bernalillo or San Miguel to change their status; the statute made no allowance for changes in circumstances. Id. at 566, 151 P. at 306. The court found the statute unconstitutional special legislation, stating: " 'A law may be made to apply to conditions existing at the time the law is enacted, but it must also apply to similar conditions in the future.' " 20 N.M. at 570, 151 P. at 307 (quoting Codlin v. Kohlhousen, 9 N.M. 565, 572, 58 P. 499, 501 (1899)).

Appellee contends that Section 60-7A-1(F) is a general law, arguing the classification made by the statute is reasonable and applies to all members of the class equally.³ Appellee further asserts that the mere fact that the class is defined temporally⁴ is not a bar to its validity, citing authority upholding "grandfather" laws that create different classes based on differing treatment of a group otherwise similarly situated because it existed prior to certain legislation. See, e.g., State v. Spears, 57 N.M. 400, 259 P.2d 356 (1953) (real estate brokers licensed under old law permitted to continue to practice without taking examination); Davy v. McNeill, 31 N.M. 7, 240 P. 482 (1925) (irrigation ditches created before new law exempt from changed regulatory scheme).

Each law must be evaluated on its own special circumstances. Atchison, T. & S.F. Ry., 20 N.M. at 568, 151 P. at 306; Keiderling, 91 N.M. at 200, 572 P.2d at 547. The "grandfather" law cases sanction legislation that creates rational classes based on time where the class is closed because of unique circumstances based on time--for example, in Spears a class of brokers was not subject to examination because they were already lawfully pursuing their occupation. They were not similarly situated to the class of prospective brokers; they had invested resources in their calling and possessed vested rights recognized by law, rather than a "mere hope or expectation." 57 N.M. at 409, 259 P.2d at 362.

In the instant case, on the other hand, the classification based on time closes the class arbitrarily--it " 'serve[s] to prevent the future general operation of the laws, and thus ma[kes] those laws special, whether they were general in form or not.' " Atchison, T. & S.F. Ry., 20 N.M. at 570, 151 P. at 307 (quoting Codlin, 9 N.M. at 572, 58 P. at 501). The reason proffered for the validity of the law--the need to control distribution of alcohol when driving while intoxicated becomes a serious problem--is not limited only to the years 1985 and 1986. This law, like those at issue in Atchison, Topeka & Santa Fe Ry. and Keiderling, is specific and applies only to McKinley County, allowing for no contingencies based on changing circumstances to either expand or contract the class.

This analysis, however, does not end our inquiry. Special legislation is constitutional if special rather than general legislation is appropriate.

There is nothing in the Constitution which would invalidate a legislative act merely because it is special in character provided a local situation exists which under particular facts makes a general law inapplicable.

Swinburne, 74 N.M. at 491, 394 P.2d at 1000.

In Montano, we considered whether special legislation aimed at one land grant was unconstitutional:

Although there are unquestionably basic likenesses in the nature of all community land grants in New Mexico, there are also differences, such as their geographic locations, the times of their origin, the laws and governments under which they were created, the forms of government and administration under which they developed and were controlled, etc. The fact that they may be susceptible to a uniform system of government, management or control does not require legislative enactment of a general law in this regard applicable to all community grants.

82 N.M. at 342-43, 481 P.2d at 704-05.

Appellants assert that a general law can be made applicable--the legislature could have banned drive-up windows statewide.⁵ They argue that, although McKinley County may have a higher alcohol abuse rate than other areas in the state, the existence of drive-up windows is not uniquely related to those rates. In other words, there has been no showing that drive-up windows contribute to alcohol abuse to a greater extent in McKinley County than anywhere else in New Mexico, and thus, no reason has been shown to justify regulation of drive-up windows in McKinley County.⁶

Alcoholism and the problems associated with alcohol and driving undoubtedly are common to all counties in our state. Nonetheless, the legislature decided that the problem in McKinley County required special attention and measures. The court below determined this special attention was warranted. That finding is supported by the evidence, and we hold that the special character of the circumstances in McKinley County warrants special legislation.⁷ The legislature rationally could have determined that the unique location of McKinley County--near large reservations for Native Americans where alcohol is not sold and by a major interstate highway--and the comparatively large number of alcohol-related health problems and deaths, including those related to driving, in McKinley County, required special remedial measure.

Moreover, the legislature rationally could have determined that the ease with which alcohol could be purchased at drive-up windows related to the problems associated with alcohol. Evidence was presented to support the conclusion that drive-up windows contribute to the problems associated with alcohol, particularly those related to drinking and driving. Thus, there is a reasonable relationship between the statute, which places the question of keeping the windows before the electorate, and the evil it is designed to prevent. No special showing that drive-up windows in McKinley County contributed to the problems to a greater extent than elsewhere was needed. It is not a particular problem with the windows that justifies special legislation--regulation of drive-up windows is appropriate because the drive-up windows were shown to contribute to a unique alcohol problem in McKinley County.

These special features that make general legislation inappropriate to deal with the particular problems make Section 60-7A-1(F) constitutional special legislatio...