Town of Mesilla v. Mesilla Design Center & Book Store, Inc.

• Decision Date: 13 November 1962
• Docket Number: No. 7053,7053
• Citation: 71 N.M. 124,1962 NMSC 156,376 P.2d 183
• Parties: The TOWN OF MESILLA, a New Mexico Municipal Corporation, Plaintiff-Appellant, v. MESILLA DESIGN CENTER AND BOOK STORE, INC., a New Mexico Corporation, and Robert E. Stovall and Ruth Stovall, d/b/a La Joya Gift Shop, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 183

376 P.2d 183

71 N.M. 124

The TOWN OF MESILLA, a New Mexico Municipal Corporation Plaintiff-Appellant, v. MESILLA DESIGN CENTER AND BOOK STORE, INC., a New Mexico Corporation, and Robert E. Stovall and Ruth Stovall, d/b/a La Joya Gift Shop Defendants-Appellees.

No. 7053.

Supreme Court of New Mexico.

Nov. 13, 1962.

J. R. Crouch and E. E. Triviz, Las Cruces, for appellant.

William W. Bivins and Mary Simpson Goggin, Las Cruces, for appellees.

CHAVEZ, Justice.

Suit was filed in district court on December 2, 1960, by plaintiff-appellant, The Town of Mesilla, hereinafter referred to as The Town of Mesilla, against defendant-appellees, Mesilla Design Center and Book Store, Inc., hereinafter referred to as appellee Design Center, and Robert E. Stovall and Ruth Stovall, d/b/a La Joya Gift Shop, hereinafter referred to as appellee La Joya Gift Shop, to enforce one of its municipal ordinances. The case was tried by the court without a jury who, after making its findings of fact and conclusions of law, entered judgment for appellees, Desigh Center and La Joya Gift Shop, dismissing The Town of Mesilla's complaint. From this judgment the Town of Mesilla appeals.

The Town of Mesilla relies on the following points to support its appeal:

'I. That the trial court erred in giving its findings of fact numbers 5, 6, 7, 9, 10, 12 and 13 for the reason that such are unsupported by the competent, substantial and only evidence introduced at trial and that such findings are immaterial to issues properly before the court.

'II. That the trial court erred in refusing to give plaintiff's requested findings of fact numbers 4, 5, 6, 7, 8, 9 and 12 for the reason that such are supported by the competent, substantial and only evidence introduced at trial and that they are material to issues and are supported by the law.

'III. That the trial court erred in refusing to grant plaintiff's requested conclusions of law numbers 1, 2, 3 and 4, and erroneously concluded that the plaintiff's complaint should be dismissed.'

The ordinance in question, Chapter No. 1, Ordinance No. 7, of the Town of Mesilla, was enacted August 4, 1959, by its mayor and board of trustees, and imposed a license fee on:

'curio shops, gift shops, souvenir shops, tourist shops, indian goods shops, pottery shops, ceramic shops, art shops, design centers, glass shops, dress shops,'

and purported to regulate 'the pursuits, vocations and trades' therein named.

The trial court made the following pertinent findings of fact, among which are those attacked by The Town of Mesilla, each of which is indicated by an asterisk:

"5. That the defendants, Mesilla Design Center, Inc., and Robert E. Stovall and Ruth Stovall, d/b/a La Joya Gift Shop, are not named or specified as businesses to be regulated under Section 14-42-8, New Mexico Statutes Annotated, 1953 Compilation.

"6. That the Mesilla Design Center, Inc., and Robert E. Stovall and Ruth Stovall, d/b/a La Joya Gift Shop, have not been regulated within the meaning of Section 14-42-8, New Mexico Statutes Annotated, 1953 Compilation.

"7. That Chapter 1, Ordinance 7 of the Town of Mesilla does not comply with the requirements as set forth in Section 14-42-8, New Mexico Statutes Annotated, 1953 Compilation, and contains no regulatory clause.

'8. Under the provisions of such ordinance, there was imposed on certain classes of businesses a license fee in the amount of one per cent (1%) of the gross income of such businesses.

"9. That the plaintiff, the Town of Mesilla, has not regulated the business of the Mesilla Design Center, Inc., or the business of Robert E. Stovall and Ruth Stovall, d/b/a La Joya Gift Shop.

"10. That the businesses engaged in by the defendants, the Mesilla Design Center, Inc., and Robert E. Stovall and Ruth Stovall, d/b/a La Joya Gift Shop, are not businesses susceptible of regulation under the police power of the municipality.

'11. That the plaintiff, the Town of Mesilla, has an occupation tax ordinance enacted in accordance with Section 14-42-7, New Mexico Statutes Annotated, 1953 Compilation.

"12. That the Mesilla Design Center, Inc., and Robert E. Stovall and Ruth Stovall, d/b/a La Joya Gift Shop, are businesses covered by Section 14-42-7, New Mexico Statutes Annotated, 1953 Compilation.

"13. That the business of the Mesilla Design Center, Inc., and the business of Robert E. Stovall and Ruth Stovall, d/b/a La Joya Gift Shop, does not impair nor is it in any way detrimental to the health or general fare of the Town of Mesilla.

'14. That the defendants, and each of them, operate the type of business set forth and classified under Chapter 1, Ordinance 7 of the Town of Mesilla.

'15. That the defendants, and each of them, tendered a form to the Town Clerk for an occupational license or tax for the year of 1960, and such tender was refused and the defendants have never received a license under the provisions of Chapter 1, Ordinance 7, and do not now have any type of license for the conduct of business within the municipal limits of the Town of Mesilla.

'16. That the defendants, and each of them, have failed and refused and still fail and refuse to secure the license provided for under the provisions of Chapter 1, Ordinance 7 of the Ordinances of the Town of Mesilla.'

We note that one of the defendants, Mesilla Design Center, Inc., was improperly designated as 'Mesilla Design Center and Book Store, Inc.,' but the trial court found it had jurisdiction of said defendant.

The trial court concluded:

'That the Plaintiff's complaint against the defendants should be, and hereby is, dismissed.

'Dated this 4th day of May, 1961.'

At no place in its brief does The Town of Mesilla set out the text of its requested findings of fact or conclusions of law. The court's entire findings of fact and conclusions of law are set out as the statement of facts in The Town of Mesilla's brief and nowhere else. In Bogle v. Potter, 68 N.M. 239, 360 P.2d 650, we held that it is necessary, in order to comply with our rules, to set out findings of fact and conclusions of law under the point wherein they are attacked. Each point must present a legal proposition and be supported by legal authority and argument. Lea County Fair Ass'n v. Elkan, 52 N.M. 250, 197 P.2d 228. Nor may appellant attack the court's findings and conclusions generally. Hugh K. Gale, Post No. 2182 Veterans of Foreign Wars v. Norris, 53 N.M. 58, 201 P.2d 777. For these reasons we need not consider The Town of Mesilla's contentions. However, because of the importance of the question of whether The Town of Mesilla had the legal power to enact the ordinance, not only to The Town of Mesilla but to other cities and towns within the state, we have decided to consider the case on its merits. We are aided by two factors in making this decision and are not actually forced to search the record. The Town of Mesilla did set out all of the trial court's findings and conclusions under its statement of the facts. Appellees, Design Center and La Joya Gift Shop, in their brief have supplied many, if not all, of the deficiencies otherwise existing in The Town of Mesilla's brief. Therefore, despite the difficulties always present when this court's rules have not been followed, we have been able to decide the case on its merits.

The powers of a municipal corporation are derived solely from the state. Munro v. City of Albuquerque, 48 N.M. 306, 150 P.2d 733. Since the ordinance in question is purported to have been enacted under its police power to license and regulate the activities of its citizens, we examine the only source from which The Town of Mesilla could have obtained such power. Section 14-42-7, N.M.S.A., 1961 Pocket Supp., governing cities, towns and villages, reads as follows:

'The legislative or governing bodies of cities, towns, villages, whether incorporated under general act, special act, or special charter, and H class counties shall have the power to impose an occupation tax upon telegraph companies, telephone companies, electric light and power companies, street railway companies, heating companies, railway express companies, gas companies, power companies and cold storage and refrigeration companies, manufacturers, wholesale and retail merchants of all kinds, commission merchants, coal dealers, ice dealers, lumber dealers, ice cream dealers, milk dealers, live stock dealers, produce dealers, dealers in goods and wares of every kind and character, mercantile agencies, real estate agents, claim agents, adjusters and collectors, financial agents, rental agents and agent and agencies of every kind and character, brokers of every kind and character, abstractors of land titles, guarantors of land titles, bankers, banking corporations, trust companies, investment companies, building companies, loan companies, surety companies, bonding companies, brokerage companies, newspaper publishers, publishing companies, publishing houses, printing establishments, electrical supply companies, oil companies, mining companies, new and secondhand automobile companies, automobile agencies, garages and repair shops, manufacturing and other corporations, institutions or establishments; poles and wires or conduits and wires of telegraph, telephone, electric light, street railway and electric and power companies; lawyers, doctors, dentists, druggists, confectioners, photographers, undertakers, storage and transfer houses, and sales of unclaimed goods by express companies and common carriers; theatres, permanently located and operated for exhibitions of moving, screen and sound pictures and stage...