*1 59 in a Fugate Defendant involved was 678 P.2d 687 great which caused three-vehicle accident CHAPMAN, Troy John J. H. Elliott and harm, death, bodily pas- to a followed Altom, Petitioners-Appellants, N. Fu- senger of the other vehicles. one of v. gate plea entered a of nollo contendré driving charges in of DWI careless LUNA, Ph.D., Hyde, E. Robert Ann Erika guilty municipal He was found court. Jones, Samet, Ph.D., Gary Jonathan Fugate treatment. sentenced to alcohol Lewis, Montoya James and Mike Creu- subsequently tried and convicted was sere, as members of the Alb/Bern in the court. by vehicle district homicide Board, conviction, Fugate claiming his appealed Albuquerque and the Board of Coun- was on that the second trial double barred ty Bernalillo, Commissioners of Re- grounds. Appeals The Court of jeopardy spondents-Appellees. Fugate’s conviction reversed State No. 14867. brought the before this on case Court writ certiorari. reverse. Supreme Mexico. Court New recently question haveWe addressed the jurisdictional exception, whether as March adopted Goodson, in v. N.M. State 54 (1950) James, P.2d 217 262 and State v. (1979), still appli-
N.M. 603 P.2d is light New
cable Mexico recent Supreme opinion
United States Court Vitale,
Illinois v. 447 U.S. 100 S.Ct. (1980). L.Ed.2d We held that was compelling
there reason to overrule Manzanares,
James. State v.
The records in each cases
before us show the district courts
properly denied motions to dismiss felo charges grounds.
ny jeopardy on double Appeals
The Court of is reversed each
case. The are for further causes remanded opinion
proceedings consistent with this holding with of State Manza
nares, Id. Appeals opinion
The Court of on the sec- Padilla, concerning
ond issue instruc- battery, simple proper
tions on and cor- and the is affirmed
rect court on issue. Appeals opinion Fugate
The Court of
concerning necessary exception facts proper light
also and correct. jurisdic- holding respect our exception, necessary it is not to reach
tional “necessary question in Fugate. facts”
IT IS SO ORDERED.
SOSA, Justice, Senior and RIORDAN JJ., STOWERS, concur. *2 program
nance Albuquerque-Bernal- illo Control Board (Board). Board, pursuant authority, to its adopted regulations for the establishment Pasternack, Condon, J. Bruce E. Michael *3 operation and the Program. The Pro-
Albuquerque, petitioners-appellants. for requires gram private that all motor vehi- O’Dowd, Gary City Atty., Barbara W. cles manufactured 1968 and thereafter Stephenson, City Atty., Albuquerque, Asst. undergo inspection. Any an emissions ve- Brown, Philip Bingaman, Hig- Bain R. & hicle failing inspection may the initial ob- don, Fe, Geer, Diaz, Santa Hunter L. Joe compliance tain a waiver Board from Albuquerque, respondents-appellees. for emission standards the vehicle receives a
prescribed
tune-up,
up
low-emissions
repairs
attempting
worth
$75.00
OPINION
($75.00
bring the
compliance
vehicle into
RIORDAN, Justice.
Repair Provision). Upon payment of an
Elliott,
Chapman, Troy
John J.
H.
and N.
inspection
(Inspection Fee),
fee
the vehicle
(Petitioners)
Altom
filed
suit
district
given
inspection
an
owner
certificate
seeking
declaratory judgment
court
a
(Certificate)
displayed
to be
on the vehicle.
operation
joint
the
of the
and enforcement
Program
provision
Violation
of the
Albuquerque-Bernalillo County Motor Vehi-
punishable
by
a fine
misdemeanor
(Pro-
Inspection Program
cle Emissions
more than
and/or not more
gram)
non-jury trial,
is unlawful. After a
days
imprisonment
operating
for
the district court dismissed Petitioners’
registered vehicle without a Certificate.
complaint
upholding
and entered an order
Program
go
The
was to
into effect on
Program.
appeal.
Petitioners
We af-
pe-
December
1982. Petitioners filed
part
part.
firm in
and reverse
seeking
for
tition
writ of mandamus
to halt
The issues
address
we
are:
operation
Program
and enforcement of the
statutory
grounds.
on
and constitutional
I.
prohibits
City
Whether
law
state
granted
The district court
a motion for
imposing
inspection
from
an
for the
fee
by
Sys-
leave to intervene
Hamilton Test
Program.
tems,
(Hamilton)
Inc.
on the
of Hamil-
basis
equal
II.
the Program
Whether
violates
party
ton’s status as a
to the contract with
allowing
protection
by
exemp-
standards
City Albuquerque (City)
design
on
tions not based
reasonable distinctions.
operation
Program’s
test
sta-
Program’s
III.
criminal
Whether
7, 1983,
January
tions. On
the district
penalty provisions are invalid.
operation
court ordered
and enforcement of
IV. Whether the ordinances’ severabili-
January
ceased until
ty
given
clauses should
effect.
designated
subsequently
The district court
declaratory judg-
the action as a suit for
Albuquerque City
Council
ment.
(Council)
and the Bernalillo
Com-
(Commission)
mission
enacted ordinances
Inspection
Fee.
I.
prohibitions against
ex-
established
argue
imposition
that the
pollutant
cessive air
emissions from motor
Petitioners
charging
city
Inspection
and in
constitutes the
Albuquerque
vehicles in the
Fee
County.
delegat-
subject
registration
fees
Bernalillo
The ordinances
for vehicles
Code, NMSA
power
regulate
operation
ed the
of a
under the Motor Vehicle
(Orig.Pamp.
8-140
inspection
mainte-
66-1-1 to
vehicle emissions
Sections
briefs,
Program.
validity
might
appeal are limited
effect the
of the
1. The issues we address on
Therefore,
opinion is not to be construed as
specific.
issues dis-
A number of other
Program.
approval
argument,
cussed at
but not raised in the
an
of the
oral
or char-
pressly
by general
66-6-25
denied
law
that Section
Cum.Supp.1983), and
(emphasis
ter.
Inspection Fee.
of the
prohibits
provides:
66-6-25
discussing “municipal home
major case
The
Wilson,
Apodaca
rule” in New Mexicois
require
municipality shall
county or
No
P.2d 876
charge
any vehi-
registration or
fees
City of
Apodaca
was whether the
issue
registration under the Mo-
subject
cle
* *
could increase water and sew-
Albuquerque
*.
add-
tor Vehicle Code
the increased revenue to
apply
er rates and
ed).
municipal functions other than those set
Commission,
Council,
and Hamilton
The statutes at that time
out
statute.
Inspection Fee is not a “fee”
that the
argue
to use water
specifically allowed
meaning of Section 66-6-25.
within the
“maintaining, en-
revenues for
and sewer
purpose of Section
They claim that
constructing
repair-
extending,
larging,
cities and counties
prohibit
is to
66-6-25
”
systems.
Id. at
ing’ water and sewer
*4
raising
using
as a means of
from
vehicles
1953,
(quoting
P.2d at 880
525
Inspection
and that the
general revenues
§
§
3, (1968)),
14-
Repl.Vol.
14-26-4 and
defraying the administrative
only
for
Fee
25-2(A). The
did not authorize the
statutes
program that
of an environmental
costs
any
purpose
for
other
revenue to be used
delegated to
authori-
specifically
local
was
municipal
other
nor did it forbid its use for
They
argue that the
by the
also
ties
State.
ruling
City,
in favor of the
functions.
In
of local
Inspection Fee is a valid exercise
stated:
this Court
power.
disa-
home rule
We
authorities’
[Municipal Home Rule
Amendment]
gree.
City
I
enable the
and art. of the
Charter
municipal corporation,
exer-
City, as a
duty
of con
This Court has
perform
legislative powers and to
cise all
statutes,
struing
possible,
to resolve
expressly
by the
all functions not
denied
Jaramillo,
Runyan v.
apparent conflict.
general
or
state law.
Charter
(1977). How
N.M.
90
writ
ever,
makes sense as
where a statute
Apodaca,
purpose of the fees. 66-6-25, here, The law at issue Section and applies generally throughout the state imposi- that the therefore determine people is of statewide concern because Inspection prohibited Fee is tion of the maintaining have an interest of the state 66-6-25. under Section charges conditions and system a uniform X, 6, the Art. Section N.M. Const. in the state. operating motor vehicles for amendment, provides municipal rule home “general therefore a 66-6-25 is pertinent part: law”, clearly expressly states and it and prohibited municipalities are adopts a that cities and municipality which D. A vehicles sub- charging fees for motor pow- from legislative exercise all charter registration. ject to perform all functions not ex- ers and Therefore, .Second, pollution also determine that control we devices. EPA Inspection Fee is not pre-1968 recommends that model vehicles valid exercise of local authorities’ home years and vehicles more than 15 old be power. rule exempted inspection from emissions main- programs grant age exemp- tenance Equal II. Protection. tions. The record that such indicates ex- Connecticut, argue Program emptions that the granted Petitioners are Mis- protection equal souri, Colorado, be violates standards programs and while other (1) exempts it coverage cause: from vehi exempt larger group an even of vehicles. and vehi cles manufactured before 1968 all Third, pre- mechanical differences render (2) old; year than cles less one 1968 vehicles more difficult to test Repair discriminatory Provision is emission levels vehicles manufactured application. its addition, thereafter. Mexico, pursuant State of New to Section previously We have determined that: 66-3-844(C), requires that all vehicles man- Equal protection prohibit does not classi- ufactured in thereafter 1968 and be “main- legislative provided purposes, fication good working tained in order with the fac- is a that there rational and natural basis * * * tory-installed equipment therefor, devices that it is based on a substantial designed prevent, reduce or difference between those to whom does control ex- apply, pollution.” to whom it does not those haust emissions air Testimo- that it so equally framed as embrace ny at trial that pre-1968 indicated model *5 in all who be like circumstances and be by vehicles cannot measured state-of- situations. testing equipment the-art and that it is to Revenue, parts repairing difficult obtain v. Gruschus Bureau 74 N.M. of pre-1968 778, tuning-up model (1965) (citations vehicles. Testi- 399 P.2d 107 Furthermore, omitted). mony at trial also a indicated that it would be presumption ex bring legislative impossible pre-1968 ists that of a to model vehicles municipality acts valid, legal their provisions applicable are are within emission standards with- Albu presumed unfairly constitutional. applying out these standards. Jones, querque 87 N.M. 535 P.2d record, reviewing After we determine Program “legisla 1337 Since the pre-1968 exemption that the model vehicle nature”, presumption extends tive to equal protection does not violate standards Wylie Contracting Bros. Co. v. Albu it. significant are because there differences querque-Bernalillo County 1967 and 1968 model vehicles between Bd., 637-638, 459 provide exempt- which a rational basis for (Ct.App.1969). P.2d 163-164 pre-1968 ing model vehicles. argue Petitioners first that there is significant no difference between 1967 argue also that Petitioners model vehicles and model vehicles Repair discriminatory Provision $75.00 justifies exempting 1967 model vehi application. Program The a its establishes Program. They claim cles from that required maximum low emission-related re pre-1968 the fact that model vehicles were qualify pair cost for vehicles to $75.00 anti-pollu required by not the EPA to have However, a certificate waiver. provide tion not devices installed does Repair apply Provision does not to $75.00 exemption. rational basis for We disa replacing repairing anti-pollu the cost of or gree. equipment that has removed or tion been by person. inoperable rendered Peti the pre-1968 The record indicates that by requiring the latter exemption upon tioners claim that model vehicle was decided compliance, First, into group of vehicles to come for several reasons. the Environ- cost, exception (EPA) denies Agency regardless mental Protection did not persons whose require pre-1968 equal protection model vehicles to have to those Program’s be below the emission standards have been removed anti-pollution devices required undergo repairs to through fault to sufficient no inoperable rendered compliance regardless of bring them into their own. expense involved. single proper to out rational and It is intentionally removed or persons who have that the $75.00 We therefore determine anti-pollution devices. inoperable rendered Repair invalid. Provision is Program allows vehicles do anti-pollution that devices whose III. Criminal Penalties. been rendered properly or have function argue Petitioners also that means or removed another to inoperable imposes it a criminal is invalid because undergo no worth re- more X, law. Article penalty violation state repairs bring the pairs if do not even those part: provides pertinent Section 6 Federal compliance. into vehicle to purpose man- of this section is required all vehicles E. Government has self-govern- provide to certain for maximum local year meet a current ufactured § 7521(a) A ment. liberal construction shall 42 U.S.C. emission standards. powers municipalities, given of Federal to the It is violation (Supp.V.1981). inoperable render law to remove or anti-pollution devices. manufacturer’s legislation, reviewing city we consider § 7522(a)(3)(A) (Supp.V.1981). In U.S.C. that: not unfair or unreasonable opinion, our it is municipality longer has home rule [A] group of single to out this violators legislature grant look spend it takes to require them to whatever act, power legislative but looks compliance. into Nor
bring their vehicles
any express
limita-
enactments to see
exempt
new cars from
is unreasonable
placed
power
have been
on their
tions
requires
they
testing since Federal law
adopt any
interpretation
act. To
other
when
standards
manufac-
meet
federal
home
in New Mexico would make the
§ 7521(a) (Supp.V.1981).
tured.
U.S.C.
meaningless.
rule amendment
*6
not, however, address
This does
521,
Apodaca,
nance, provide for the local administra-
tion
and enforcement
the Air
Severability
IV.
Clause.
* *
Control Act
provisions
*. The
Having determined that at
least
any such ordinance shall be consistent
provisions of
two
the ordinances are inval
with the
provisions
substantive
of the
* *
id, we address the effect of our decision.
Air Quality
(empha-
Control Act
*.
following
The ordinances have the
sever-
sis
ability clause:
The enforcement
civil
under the Act
section, subsection,
any
sentence,
If
nature with
exceptions
two
which are con-
clause,
phrase
word or
of this ordinance
tained in Section 74-2-14. Section 74-2-14
any
is for
reason
to be
held
unconstitu-
provides
pertinent
part:
tional or
otherwise invalid
court
A.
[A]ny
county
A
municipal-
class
competent jurisdiction,
such decision
ity
county may pre-
within an A class
validity
shall not affect the
of the re-
penalties
scribe
for violations of an ordi-
maining portions of this ordinance.
nance:
to violate
mental
ing condition.
emission
vehicle emission control devices install-
ed as
B.
the maintenance
(2) prohibiting the removal of motor
[******]
[I]t
improvement
required by
any regulation
shall be a
control]
board:
petty
law and requiring
devices in
[motor
of the environ-
misdemeanor
operat-
vehicle
(1917)we stated:
of the
an ordinance.
Gallup,
partA
ing the force and
We have
separated
al and the remainder
objectionable part may
inclusion
remains,
previously
the law
from the other without
In Schwartz v. Town of
of a
and where the
effect
severability
addressed the effect
itof
be unconstitution-
165 P.
valid,
be properly
legislative
clause in
portion
impair-
where
[******]
purpose
as
expressed
in such valid
por-
accomplished
given
tion can be
ef-
(2) prohibiting the removal of motor
fect,
independently
provi-
void
vehicle emission control
install-
devices
sions, and where if the entire act
taken
ed
required by
as
or requiring
law
(cid:127)
into consideration it cannot be said that
maintenance
emis-
vehicle
[motor
enacting power
would not have
sion
in operating
devices
control]
*7
condition,
passed
portion
the
retained had it known
added).
(emphasis
fall,
(cita-
provisions
that the void
must
question
The
Act,
becomes whether the
omitted).
tion
Apodaca
which under
a “general
is
state
severability
a
We have determined that
law”,
way
in any
“expressly denies” the
presumption
legis-
that
clause raises a
the
City
authority
the
provide
to
for criminal
lating body would have enacted the rest of
sanctions.
the ordinance without
the void section.
reading of Apodaca
Our
leads to the
Grants,
Super
Barber’s
Markets v.
inescapable conclusion
that not
is
(1969).
N.M.
attributed entirely, to the state and largely1,; not difficulty involved of the are also aware governments, federal- objec- that meets the program a developing complying with stat- while Id. at tive of clean air at 459 P.2d How- limitations. utory constitutional importance of significant This is an issue ever, develop the such it is not for courts public affecting the in- general nature responsibili- rather it is the program, but and, such, large the at as terest of state City, the and the Legislature, ty of the DesGeorges v. may it. this Court consider County to do so. Grainger, 76 N.M. that the be We conclude citizens, only those in Bernalillo All without fee continued County, protection should afforded repair cap that do for vehicles without pollutants. pro- A against air statewide otherwise, compliance; the into not come pollution gram against vehicular would will have to dis- and Commission Council equally regulate all vehicles in the state Program. the continue inequities program. and remove the the enforced, pollution presently control As IT SO ORDERED. IS subjects only of Bernal- program residents Program. Justice, specially County Inspection SOSA, concur- illo Senior greater Albuquerque metropolitan ring. area covers other counties. Citizens FEDERICI, C.J., and STOWERS these outside use Bernalillo Coun- counties WALTERS, JJ., concurring part and dis- daily ty yet subject are not roads senting part. Inspection Program. appears This to me Justice, SOSA, specially concur- Senior arbitrary, selective to be an unfair and ring. regulation imposition of a on Bernalillo points in this County with the four I concur residents. II, However, I Point would under opinion. 66-6-25, my reading It of Section protection that was equal issue address Code, Motor Vehicle presented argument, but not raised in oral directly prohibits that the statute question Specifically, the briefs. charging fees in with the connection applied to program should be whether vehicles, operation of matter how motor merely residents of residents or all state purpose. public noble a matter of As mer- County is one I believe Bernalillo policy deep with the health concern for Wylie Brothers Contract- its attention. citizens, I and welfare of New Mexico Albuquerque-Bernalillo ing Co. pro- agree with the need for an effective Board, pollution. gram prevent air increased (Ct.App.1969), opinion an deal- P.2d 159 province not within regulations, ing pollution air Justice 66-6-25. judiciary change anticipated problems we would Oman remedy defect. legislature must *8 were regulations controls encounter he There local and statewide. FEDERICI, and WAL- Chief Justice prophetically stated: TERS, (concurring part, dissent- Justice enforce, draft, particularly to To ing part). regulations the control of emissions for disposi- Riordan’s concur in Justice highly mobile vehicles on We
from these III, II, disagree basis, IV. We ex- tion of Points single county-wide would I regarding since regu- Point making the decision tremely difficult. 66-6-25, pro- refers to “registration” of vehi- scription fees municipality, county and not to
cles purposes.
fees other therefore re-
spectfully dissent issue. on that
STOWERS, (concurring in part, Justice
dissenting part). I, II, disposition points
I concur in the opinion. point
and IV the I dissent as to
III, penal- of criminal legislative authority
ties exceeds the
is limited civil sanctions and fines. HODGES, Petitioner-Appellant, Ida
Flor
Benny HODGES, Respondent-Appellee.
No. 14840.
Supreme Court of New Mexico.
March