*1
S. G. Defendant-Appellant. FOY,
Thomas P.
No. 6117.
Supreme of New Mexico. Court 7, 1957.
Feb.
Rehearing Denied March *2 Robinson, Gen., Atty.
Richard H. Fred Standley, M. Kegel Howard Walter R. Rosenthal, M. Attys. Gen., appel- Asst. for lant.
Harry Bigbee, L. Stephenson, Donnan Fe, appellee! Santa LUJAN, Chief Justice. by
This is a plaintiff-appellee suit against attorney the district of the Sixth Judicial enjoin District him from enforcing the Chapter criminal Laws of him, against and to declare said act unconstitutional. The court made and en- tered its declaring order the above law un- permanently constitutional and enjoined the defendant from enforcing or attempting to same, enforce the and the appeals! state plaintiff, among things, alleg- es: That he is the opera- owner and
“2. variety tor of type store of the some- called a times 'five and ten cent store’ Deming, wherein he engaged selling sundry at retail the articles or- dinarily sold type, stores of said do- ing business under the style name and Wage and graph, terms of said brings Store’, he of ‘Ben Franklin permit substantially all Hour Act oth- of himself suit on behalf this in the two employees referred to whose similarly ers situated paragraphs pay a paid preceding to either required purportedly per fifty (50y!) wage minimum cents seventy-five wage of minimum (75‡) apply to hour does not competitors’ or said Act per but whose hour cents them, whereas, act, applicable, if said employees are classified ‘service requires pay him to a minimum ployees' by referred to the Act seventy-five per hour to (75^) cents or whose paragraph, next by said each of his covered not covered said Act. substantially the performing Act for employer four or He “4. competitors’ his said same duties as more with connection employees.” business, whom are aforesaid certain of petition, pre- an- disclosed presently wages facts as paid less than swer, stipulation sub- Wage of counsel are scribed the aforesaid stantially plaintiff owns as follows: The applicable Hour Act if said Act *3 in operates and a five and ten cent store said business. Mexico; in the Deming, is located New competitors principal “8. his Among Walgreen Drug same block is a Store as in so-called Deming are numerous Store, of which Drug Rexall both and a ‘Drug retail the Stores’ which sell at employees, and han- employ than four more types of substantially similar same or merchandise; type both dle the same of variety sundry mer- and articles of lunch fountain and counter. maintain a proximity in Deming chandise in close substantially carry These stores two to his stores. as type of merchandise does the same the Substantially "9. all of said consump- plaintiff. No or drink preceding stores referred to plaintiff in estab- tion are sold the his paragraph are establishments furnish- employs more than four lishment. Plaintiff consumption ing food and drink for salary persons paid weekly of less a who premises. informed He further is Chapter wages prescribed by than the said that certain of his believes Defendant determined that Laws of 19SS. competitors compensate their plaintiff’s applicable Act is the above ployees on flat-rate schedules. proceed to en- and threatened business attempt the enforce criminal or By matters and force
“10. virtue the of plaintiff’s Among para- provision against him. preceding things alleged in the drug stores plaintiff competitors against numerous other discriminates competitors type merchandise in of his which deal in favor certain the same them sell substantially all of plaintiff, and confers upon his said establishments, competitive al- advantage. a food and drink in their not. though plaintiff does Act Wage “6. The Hour “flat stipulated deprives similarly the term plaintiff It is further and others protection mean- equal a Act has situated of rate schedule” used That repair field. ing guaranteed in the automobile laws and secured not It is only known. meaning technical the Con- Fourteenth Amendment of where field whether this known stitution of United States II, is used. flat rate schedule Constitu- Article Section Mexico, and tion of the of New State stipulated facts upon Based the above unconstitutional, void and therefore law: matter of concluded as a the court of no effect.” Act at- Hour Wage and “4. The Chapter Laws Section two of arbitrary, up unreason- tempts to set 1955, provides part as follows: classifications, does capricious able and “Definitions. employers within all not affect “(a) ‘Employ’ per- or includes suffer alike, purported purview thereof mit work. upon sub- based are not classifications proper re- distinctions with stantial “(b) ‘Employer’ any indi- includes objects and the classified lation to the association, vidual, partnership, cor- does achieved purpose sought to be poration, trust, represent- legal business all fashion in a uniform embrace any organized group ative or in said naturally belong who persons employing more em- four or sim- others plaintiff class time, ployees any at di- acting one ilarly situated are rectly indirectly interest of unlawful, an subj ected to act said employer employee, an an in relation to capricious arbitrary discrimination States, but United shall not include the *4 of protection denied the same and political any the subdivision state or enjoyed by other which is laws the thereof. circumstances, including in like employees’ “(c) shall ‘Service be competitors. his
certain of persons employed interpreted to mean Wage Hour Act un- following “5. and the establishments and arbitrarily capriciously occupations: lawfully, stores, “(1) petitors restaurants, cafes, drug respect with to all of their furnishing ployees upon and bases its that decision other establishments premise. the consumption premise for on That the is false food or drink premises; may that the law [emphasis and should be construed ours] grant
to this lower privilege paying of of wage only minimum to such any indi- “(d) ‘Employee’ includes en- plaintiff’s competitors actually as are employer, but employed any vidual gaged occupation furnishing in the of shall not follows [Here include — premises. or consumption ” * * * exemptions] We impressed argument. are not this with three. Section given A must read and statute be Wages. “Minimum Legislature, effect as it is written except employer, pro- Every as “(a) may not be as the think it should court foregoing section shall vided in the Legislature would have been written if the employees wages pay to each of problems com envisaged had all the following rates: at the plications course might which arise hour, Not than 75 cents an “(1) less argues of its administration. But defendant however, provided, that service em- mean to that the act should be construed be ployees as hereinbefore defined shall only employees competing that of such paid minimum rate less a base actually engaged stores as are per hour.” than 50 cents its selling serving drink to need employees” defendant-appellant, customers are “service point one Under hour, only paid fifty that be cents an “Chapter that Laws of argues employees of should police power defendant all other under the a enactment is valid in If was the state, classi- classified otherwise. it upon a reasonable based designate Legis- Legislature to such subject tention matter fication who working store apparent basis he, Says lature.” drink, dispense food and actually sell and said is that under court's decision employees” and all all' required pay as “service plaintiff is chapter the otherwise, then the statute needs .employees wage of employees a minimum 75‡ of his drug-. which we think should come clarification per while his hour pay Legislative Courts required by way amendment. business store they find it con the act hour. That must take per wage of 50‡ minimum plain according meaning ad- strue the minimum assumes court employed. If the act is com- to be pláintiff’s is available vantage *5 22á Hendricks, 51, 55 226 N.M. effect, respect, v. Hendricks in this it
given a different 464; County Carper Board of Com- v. P.2d Legislature. be an act of must 137, County, N.M. Eddy 57 missioners of attempt distin not act does 255 P.2d drug employed in a persons between guish clerks, oth and such as waiters from store question Passing then to the says employees” employees, “service er but really classification, reach the crucial we em interpreted mean shall be point case. have endeavored to of the We and establishments ployed following subject thought most careful give this stores; does it nor occupations; drug investigation, but have been and unable to and serve single drug attempted out stores that clas convince ourselves that Clearly drink, stores. but refers to all require in this law sification answers the person every 2(c)(1) then under section legal and constitutional classifica ments of “service is a employed drug store protection in such tion, i.e., equal It law. and actually sells employee” he expression classification, whether that is an old interpret drink, To not. rational; and serves food legal, must be be must order to that provisions to mean of the act upon real differences situa be founded store, have just those condition, bear a which and tion or fountains, actually and and attempted lunch counters proper to the classifica relation premises tion, reasonably justify serve a different rule. enlarge be to employees” 536, 204, would Henry, “service N.M. 25 P.2d State 37 v. as to words 805; Am.Jur., the act both the terms of A.L.R. 12 Constitutional 90 an act cannot read into meaning. Law, Courts 476 and 481. Sections manifest something is not within may is well settled that there It gathered Legislature as intention of employer classification between justly be ju This would be itself. statute from class, may made a each be employee; of a legislation. Where dicial applied, because there rule different as the act unambiguous, is clear and statute the con situation are differences construc room for question, is there no applicable to the various classes. siderations Strong, 28 v. De thereof. tion Graftenreid proper, is while classification there But 694; Produc 91, Atlantic Oil P. 206 N.M. uniformity always be within the 650, 696; class. must Crile, N.M. 287 P. 34 v.Co. ing persons under same 22, 715; circumstances If Chase, 132 P.2d 47 N.M. v. Giomi differently, conditions treated there Contracting Sharp & Fellows Gonzales discrimination, arbitrary 762; classi George v. 179 P.2d Co., 51 N.M. Henry, supra. State v. It 285; fication. Smith, P.2d 54 N.M. &Miller ty. present provision is the effect of invalid claimed that such Act here- escape easily law, separated from the tofore mentioned can see no and we can from provisions, the remaining so that the conclusion. employers enumerated 3(a) Under the of section partial therein are in no affected wise required plaintiff pay (1) of the act the *6 invalidity permitted and should be to stand. 75‡ wage minimum of the clearly It is apparent Legislature that the competi per On the other hand his hour. portions would have enacted the valid of they employees, drug because work in tors’ Act, the though even it had been known stores, they serve whether portion that the herein invalid held could premises not, consumption on the or not be pro- carried In fact it is into effect. employees” be “service declared to need vided Section 8 of the Act that: Thus, paid per appellee’s hour. 500 competitive advantage Act, any provision obtain “If of this or the pay a they are entitled to application because lower any person thereof to or performing minimum to its circumstance, is held invalid the re- competition in the same functions as direct application mainder of the Act and the employees. appellee’s with provision of or such to circumstances shall not be affected opinion that Act We are under thereby.” legislation constitutes class consideration kind objectionable insofar as most
of the court, speaking through This Chief Jus- employees. store drug to refers it Safeway Stores, Inc., tice Sadler in v. arbitrary oppressive is classification Vigil, 190, 287, 40 N.M. 57 P.2d discussed any reason for its valid without basis. relating partial the rule to the effect of the statute, and, invalidity of a while the facts point defendant two Under contends compelled directly that case a result op- question vague, is not so in that the Act posite present to that reached under the application in its uncertain definite facts, equally what was there said appli- agree it unconstitutional. We render to here, repeated. and need cable not be See excep contention with the with defendant’s also Gallup, Schwartz Town of 22 N.M. been has heretofore held as of what tion 521, 345, 348; In Santillanes, 165 P. re 47 (1) of the Act. 2(c) Section 503; 140, 138 P.2d N.M. and State v. carefully have examined the We Chavez, 58 P.2d N.M. 277 provisions of the law and remaining con subject objections 2(c) (1) declare that Section We clude vagueness, indefiniteness uncertain- Act, insofar as it relates stores is 226 words, phar- per remaining cents hour. that the In other
invalid and
dietician,
store,”
is macist in
Consequently,
judgment
“drug
or
are valid.
restaurant,
reversed,
bookkeeper
part
part
with or
or
and in
in the cafe
'affirmed in
store,
proceed
manager
ac- or the
the trial court to
of the cafe
directions to
for an
proper subjects
all
each and
cordingly.
application
lowest bracket
ordered.
It
so
imposed by
minimum
law.
wage,
'
inequi-
shocking, so
so
A construction
KIKER,
McGHEE,
COMPTON
one
naturally, causes
unfair,
so
table
JJ., concur.
a considera-
abrupt halt
to an
come
inquire: Could
matter and
tion
SADLER, J., dissents.
ab-
so
intended
actually, have
legislature,
fair
no other
Only when
a result?
surd
.SADLER,
(dissenting).
Justice
deduced
may be
meaning
reasonable
we
employed, should
language
in the statute as-
from
critical
to con-
tends
L.1955,
interpretation
adopt an
2(c)
c.
is found
sailed
§
Indeed,
stupidity.
legislature
Comp.,
(c) (1),
59-3-21
vict
(1),
§
*7
statutory construc-
rule of
a
reading
follows:
it is
cardinal
as
Supplement,
down
not strike
we should
tion
employees’ shall
“(c) ‘Service
be
we have ex-
until
enactment
legislative
persons employed
interpreted mean
in
intendment
every reasonable
hausted
oc-
establishments and
following
Saiz, N.
legality. State v.
its
favor
cupations :
majority have
-,
205.
308 P.2d
The
M.
restaurants,
stores,
cafes, drug
“(1)
rule here.
apply this cardinal
failed
furnishing
and other establishments
consideration
A
consumption
for
food or
one that the
satisfy
fail to
cannot
ployed
premises.”
apply
to bar
only intended it
legislature
waitresses,
jerkers,
boys
given
language maids,
tray
this
the construction
soda
If
correct,
majority
immediately engaged
serving
then it was the
in
and others
premises
in
intent
on the
legislative
drink consumed
mentioned,
store,
than
pharmacist
those
in a
establishments
—not to
serving,
“furnishing
bookkeeper
e.
i.
or accountant
a cafe
engaged
or the
consumption
prem-
on the
use
the word
or drink
or restaurant.
“oc-
supports
ises,”
engaged,
well as those so
cupation”
language quoted
'by
the minimum
governed
50 such
construction.
It does not aid say clarify the legislature easily can Mexico, STATE of New A. ex rel. Hilton already DICKSON, Jr., law made Liquor amending. They have Chief of Control Division, Appellant, con- clear according a reasonable v. questioned language. struction of the SAIZ, Market, Riverside, Jake Jake’s d/b/a majority ruling otherwise, Mexico, Appellee. New Mexico, STATE of New ex rel. Hilton A.
I dissent. DICKSON, Jr., Liquor Control Chief of Division, Appellant, Order Denying Rehearing. Motion for GONZALES, Alberto and Ernest d/b/a Bar, Taos, Ranchitos Riverside New PER CURIAM. Mexico, Appellees. This cause coming on for consideration 6071, Nos. 6072. on motion for rehearing plaintiff filed Supreme Court of New Mexico. (appellee) opinion complaining filed 23, Jan. 1957. in so far as por- it holds unconstitutional a Rehearing Denied March L.195S, tion c. having and the Court read and considered said and the motion
briefs parties same, touching
being well and sufficiently advised
premises; Court, Chief by the
It Is Ordered Justice Mr. COMPTON and
LUJAN, Mr. Justice Mr. assenting; KIKER Justice
Justice McGHEE, dis- Mr.
SADLER Justice rehearing be motion for
senting, that hereby denied. Mr. same
and the Jus- fur- announced that having McGHEE
tice him the has satisfied consideration
ther objec- subject to the is not act
questioned *8 it, withdraw wishes to against made
tions opinion, as majority in the
his concurrence indicated, con- announces
heretofore opinion filed dissenting
currence SADLER.
Mr. Justice