*1
I dissent. DICKSON, Jr., Liquor Control Chief of Division, Appellant, Order Denying Rehearing. Motion for v. GONZALES, Alberto and Ernest d/b/a Bar, Taos, Ranchitos Riverside New PER CURIAM. Mexico, Appellees. This cause coming on for consideration Nos. 6072. on motion for rehearing plaintiff filed Supreme Court of New Mexico. (appellee) opinion complaining filed 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
questioned it, withdraw wishes to against made
tions opinion, as majority in the
his concurrence indicated, con- announces
heretofore opinion filed dissenting in the
currence SADLER.
Mr. Justice
the Governor as to .bills leg- days him the last three of a session, parts, islative “any appropriating money” disapproves, him limits on exercise action general appropriation bills. question appeal arises on an judgment State from a rendered up- County district court of Fe "Santa statutory review before him the action Liquor of the Chief Control Saiz, defendant, Division in which the liquor suffered li- revocation of his retail liquor cense Sunday for tlie sale of provisions L.1939, violation of the .c. *3 236. Although finding all issues of fact in nevertheless, State; favor of the the trial court entered an order aside setting the revocation directed Chief the , Liquor the upon Control Division the ground the action the in at- a tempting to exercise a veto as to .portion Liquor prohib- Act Control Lujan, Fe, appellant. Louis C. Santa' for iting Sunday charged, sales had as he Chacon, Melendez, L. Es- Matías P. R. nullified the whole pañola, Ripley, Fe, appel- act.. E. P. for Santa lees. words, question- In the trial other court Zinn, Fe, Moise, S.
Dean Santa Irwin S. validity upon ed the the ground the Sutin, Albuquerque, challenged held the same R. and to be uncon- Lewis amici curiae. ruling like stitutional. A and order was Hamilton, Fe, Atty. M. for Sp. W. Santa proceeding entered in another for review' Bureau The of Revenue. Court, pending before entitled State CURIAM. PER Gonzales, which the in defendant’s li- v. ' question grounds. The for decision is whether been revoked similar cense had on appeal in IV, giving was taken in each Art. the Constitution An case and § pur- they for Every presented here have been consolidated return. bill decision, being governor days of poses of consideration and three the last opinion is appeal dis- approved in which this No. session shall be It is appeal approved days No. 6072. after being written and him within six appeal agreed adjournment, in No. him the action taken be and shall appeal No. govern disposition of immediately deposited shall the secre- with tary approved 6072. and of state. Unless so signed by be- him such shall not bill question decision Our governor come a law. in The construction proper upon a depends like approve manner State constitution IV, 22 of Article § or parts, amendment prior existed it as 'bill money, appropriating such and seriously Indeed, we section said parts or approved items shall become could amendment whether doubt law, such as are constitu- matter. any bearing be shall passed void unless his over mentioned, it existed at provision tional provided.” as herein case, reads: material all times Counsel for (appellee) the defendant legislature by the passed “Every bill agree only ques- matters before us are law, pre- be it becomes shall, before which, tions of law commencing approval. for governor to the sented their argument, they reduce to two it, and sign he shall approve, he If number, only the first of which for a calls state; secretary of it with deposit decision, if an prop- affirmative answer be to the return otherwise, shall erly supplied questions to it. The two his with originated, which house copied from the answer brief defend- entered at shall objections, ants read: journal; large there- a law unless become shall “1. Was Governor of the State empowered Mexico New to inval- approved two-thirds 'by particular portions idate the Chapt. present voting each members 236 of Session Laws of 1939 that nay by yea up- vote entered house *4 by were vetoed him? Any bill journal. its not returned If “2. the Governor not have did governor days, within three power, attempted did the veto excepted, present- Sundays being the entire render act void?” him, law, shall become ed whether not, unless leg- him or signed viewing the questions So decisive pre- by adjournment prevent sented, islature proceed forthwith to a discus- ** sion and the two Whereas, decision first of of the 4, Article Sec- questions lan- mentioned. The decisive tion 22 of the Constitution of the State guage questioned of Article section provides part New Mexico as of our Constitution is to be found follows: Chapter the last two sentences thereof. “ ‘The governor in like manner Laws March was enacted on approve or or regular the very day last parts, item ap- or session year legislature for that propriating money, parts and such or presented to the Governor forthwith. approved law, items shall become a questioned been having and such as are shall be to the it Governor at the late hour void, passed veto, unless over his as during session, naturally regular stood provided.’ herein exposed pocket to the veto hazard of a “Whereas, my it is firm belief that unless the ac- Governor affirmative took Bill House many No. 155 contains tion approving disapproving within salutary provisions for the welfare of period limited days following ad- of six Mexico', the State of New but also journment. If for at all any reason contains certain and items action, took no same the 'bill suffered I believe detrimental to the best in- it, fate that would have befallen had the Mexico, terests of the State of New formally exercised the particularly provisions more those complete provided by Constitu- as permit which would the sale of intoxi- tion. liquors Day cating on the Sabbath during worship during hours of Suppose, Governor did periods people which the of the State veto; complete to exercise a that he wish bound, of New Mexico are recreation salutary saw in the bill much of merit and liquor which hours the sale of Must he take it benefit to the state. would detrimental the welfare destroy it stood? Must he leave Mexico, people of the of New eliminate the in the good to bad bill? firmly my duty believing is Executive, who at that time That the Chief give unto Caesar that which is Miles, Honorable E. resolved was the John Caesar’s unto God that which is confronting him in favor question God’s; exercise a which, message Therefore, by his veto “Now virtue of demonstrated material, authority reads: vested in me far as Governor of so *5 232 of part (e) of Mexico, pur- “All that sub-section and State of New follows: which reads as Section of Article provisions
suant to “ county any municipality or ‘in of 22 the Constitution Section of in favor of which has Mexico, dis- not voted hereby I do of New Sundays liquor of on items sale alcoholic parts and approve following of this therein, provisions under the 155, to-wit: Bill No. House I Act,’ disapproved, parts and such so of Sec- (a) part “All of sub-section and hereby by me void declare be as follows: 1204, which reads tion No. of said House Bill the remainder “ li- ‘Provided, hereby approved. 155 allow them retailers shall censes of Fe, Mexico “Dated at New Santa liquors, and alcoholic sell and deliver March, Day This 17th of 1939. clubs and dispensers licenses Miles, E. Governor.” “John serve, sell, deliver them allow shall three sentences is with the last consumption alco- permit and IV, Art. Constitution § premises licensed liquors on their holic primarily The first are concerned. of 2:00 hours Sundays between these three sentences reads: municipalities 11:00 P.M. P.M. and option local dis- composing or within “Every govern- bill to the local composing tricts, in counties and days last 'the or three limits districts, outside of option disap- approved or session shall be situated, municipalities therein proved by days him within six an cast at all votes majority if adjournment, by him and shall be municipality or any such election immediately deposited with the secre- al- sale of county in favor are tary of state.” each Sundays in liquors on coholic three, The second sentence of the last county. or municipality immediately quoted, following just the one of Section (b) sub-section “All of reads: 1204. approved signed by “Unless so (c) sub-section Section “All of such shall him bill not become a law.” then sentence, And comes the final part (d) of of sub-section “That reading: reads as follows: which Section “ may Sunday 2:00 “The any governor between like manner ‘or part approve 11:00 or P.M. and between or 2:00 A.M. ap- parts, midnight; P.M. money, place adjourn- prior such takes propriating and such action law, so, approved shall become a items ment. He do if he so desires disapproved ap- such only shall and in event it is passed proved void over his unless he is called provided.” herein legislature. resubmit to the *6 approved bill of the a law become These last three sentences out aré set upon part without further action the separately the better to understand their the legislature. State ex rel. Sandaker v. meaning. The first sentence of three the Olson, 561, N.D. 65 586. 260 N.W. every provides that the bill to days last three the is, the us, Thus it it seems is nothing to there approved session or must be difficult the about meaning language' of the days adjournment, him within six employed except as we so make it our deposited immediately and shall be him attempt interpret to calls language for that secretary of with the state. fol- There interpretation. no plaintiff Counsel for then, lows, approved unless so that places much reliance (appellant) on the signed by him such bill shall not become general appropriation, distinction between plain, language is clear and un- law. The bills money. and other bills appropriating equivocal. Opposing challenge counsel the distinction
sought be made and the general, to treat it, Immediately however, following appropriation “any appropriat- bills and bill language we are find the with which money” ing virtually synonymous. In primarily concerned. It states the Gov words, they other as meaning treat them manner, say is ernor in like that to thing. one same is and the when so him to submitted to within bills interpretation treated that language this ap adjournment, days legislative three in the becomes confusing Constitution parts, prove any part its difficult to meaning ascertain. appropriating bill parts approved money, part or and such compelled agree to We with dis and such as are plaintiff shall become a law counsel for that the language passed over proviso void unless approved shall be in is synonymous found not “general provided. phrase, appropriation It is to be with the as therein his Indeed, bills.” of the nothing language Consti there observed the.framers extending of- Governor, tution upon once calling mentioned' “any submitted, appropriating money” measure so veto: upon has acted n th,e themselves unmindful' of legislature if were same return the 234 con- act appropri- invalidity fied of of an
proper
phrase “general
of the
use
down;
em-
it
grounds
striking
stitutional
before
easily
and could
ation bills”
equally
here,
in-
if
each
ployed
their
two constructions
had such been
exist,
16,
sustaining
19
See, Const.,
IV,
should
the one
Art.
reasonable
tention.
§§
preferred.
validity
act is
and 23.
Corlett,
N.M.
P.2d
Fowler v.
56
244
1939
Chapter
Laws
of the
236
courts,
1122.
court
highest
Some
even
represents an ef
was enacted
1939. It
land,
as to
an
go
suggest
so far
regu
legislature to
fort on the
beyond
appellate court should be satisfied
liquor industry. It
late the
has stood
invalidity
an
a reasonable doubt of
act’s
years
twenty
this
for almost
statutes
grounds
declaring
on constitutional
validity
its
challenge
is the first
Armijo,
so. State ex rel. Hannah v.
meantime,
In
has reached
Court.
511;
28
State ex rel.
38 N.M.
P.2d
it was assailed
constitutional
Dry Cleaning
v.
New Mexico
Board Cauth-
be
Fifth
District
grounds in the
Judicial
en,
255;
v.
48
152 P.2d
N.M.
each of
separate
judges,
district
fore two
Shroyer,
N.M.
P.2d
validity
whom
sustained
New Mexico was
of the latest states
one
against
it.
challenges made
against
*7
adopt
to
a state
number
being
constitution
Honorable
judges was the
One of such
in
had be-
the roll call of states.
It
McGhee,
Judge
a
the
then
of
B.
James
of
history
experience
fore it
and the
the
District, and now a
Fifth
Justice
Judicial
of
partial
the
in
states
veto
the various
Court,
he
from
although
withdrew
of this
adopted
the
its con-
union at the time it
The other
in this decision.
participation
has,
the
perhaps, one of
stitution.
It
Roy Ander
the Honorable C.
was
partial
provisions touching
most liberal
a
son,
Judge of the Fifth
present
a
Judicial
any
the
state in the union save
decisions,
veto of
course, are
of
Their
District.
Washington
of
not con-
state
which does
upon
they
but
be
binding
us
power
fine or restrict an exercise
the
part,
background of
aas
noticed
money.
bills
Cascade
appropriating
to
this decision.
Commission,
Telephone
Tax
v.Co.
Furthermore, in the attack made
616,
“Page Proceedings of 96 of the vention specifically rejected the in- Constitutional Convention shows terpretation which the trial court De- Committee on the Executive places upon IV, Article Section 22 of partment proposed like provision a specifically Constitution. It re- partial limiting other States jected proposal a which limited the appropriations. veto items Sec- partial power appro- veto to items of tion 12 read follows: priations. pro- specifically adopted It “ ‘Sec. shall posal which increased the item or general bills appropria- items of bill making legislation incidental which contained money embracing tions of distinct appropriation.” items of parts of the bill is, perhaps, one because our state is law, approved shall be and the item latest in the roll call of states to items shall be void adopt profit its constitution and could from enacted in a manner follozving: unless constitutions on language of other state Assembly If the General Ses- provision matter that our own the same sion, shall transmit the house counterpart subject finds no exact originated, copy the bill in which other the constitutions of states. Neverthe thereof items dis- less, notwithstanding, as claimed objections together with his approved, defendant, cases from counsel for other objected thereto, the items may afford some distinguishable states reconsidered, separately shall be especially the ground one from take shall then the same item each —more Wisconsin, that from Washington and cit prescribed pass- for the as is course below, there is to be found in ed each of governor’s over veto.’ age of bills applicable to reasoning the case before them language the exact used in “This support to the us, lend correctness of Wyoming Dakota and set North we reach. conclusion Cascade Tele *8 Olsen and v. in State [Olson] forth Tax v. State phone Commission, Co. su supra. Forsyth, v. State ex rel. Wisconsin Telephone pra; State Henry, 218 Wis. 260 rejected. v. N.W. In- Co. proposal “This 1267; State ex rel. A.L.R. Sandaker of the Committee 99 v. proposal stead, the 586; 260 Olson, N.D. N.W. 65 p. Department, 94 of Legislative 236 Forsyth, Wyo. v. is and will be erroneous can stand.
ex rel. Jamison reversed with a and cause remanded 133 P. direction to the trial court its aside set deep given careful have and We revoking order the action of the Chief questions raised on to the consideration Liquor Control Division Bureau of the judg appeal it is our considered and and of Revenue enter another in lieu there- act is not challenged that invalid ment affirming the cancellation of the license grounds of the unconstitutional of the defendant. it, including the claim against that raised It will be so ordered. partial ap veto is bad because or sub-section. of a section plies to LUJAN, J., C. and McGHEE and Telephone v. State Compare Co. Cascade KIKER, each, turn, JJ., having recused Commission, supra. Both Tax sides himself, participated none in this decision. dangers suggest apprehended been free to their against should in our decision and COMPTON, SADLER JJ., and
respective
We entertain no
contentions.
McMANUS,
J., concurring.
D.
that
we announce is
fear
the conclusion
pointed
fraught
dangers
with the
out. Cer
Motion for Rehearing.
On
apprehensive
tainly,
if
legislature,
partial
could
an abuse of the
veto
CURIAM.
PER
danger by seeing
to it
easily forestall
(appellee) has
The defendant
moved for
on or
reach the Governor
all bills
that
may
as well
rehearing
at
outset
day
57th
of the session.
prior to the
credit for having
his counsel
filed
give
one
not, neces
does
Constitution
Our
prepared
argued
the best
briefs it
by one de
exercise
foreclose
sarily,
pleasure to read and
been our
has
consider
powers
another
state
partment
They
ably
have argued
time.
for some
language
in unmistakable
contemplates
they
position
By
but
maintain.
for the
well
instances where the
certain
there
that
from
aside
a renewal and
large,
Indeed, when
power exists.
overlapping
of contentions made at
re-argument
par
his
right
exercises
down,
hearing,
when boiled
original
exercising
quasi-legisla
polemic against
tial
is in essence
brief filed
Spokane Grain & Fuel Co.
function.
very
tive
existence of
76,
It follows consequences to dire court flow judgment trial ence the. said.-that *9 in counsel for announced movant and in light have the of con- from the conclusions words, arewe siderations mentioned opinion In other above. Nor have we the filed. by throughout abuse been an unmindful may from that in told evils result exer- that partial partial power cising of a veto the a Chief Executive this Governor acts in a of in quasi-legislative capacity. forward put veto. Some these were then not and some briefs heretofore filed What the Governor in the case at bar now. us thought placed of are sought to do was to root out of the bill acting he was so much as thereof the is, that The fact would have possible it made to desecrate our power partial into veto is written by the having Sabbath saloons run- and bars work fundamental law. It is the ning open wide throughout over the state there, is It is framers of our constitution. holy day. that Mexico Mindful New not reality, a can living court we and as a up fearing was made law-abiding, God rub it ascertain out. Our sole function is to people religious whose would sensibilities nearly purpose its give meaning, it as situation, be by shocked went such he a conformity the intent of with the true through the bill meticulous before him with people framers of the constitution and care, found, it, the' lifting from wherever at adopting it, arriving And in we can. part subject or about germane to to intent, we are declaration of that proscribed, to made be together, and which swayed be of what from conviction our up part or whole, a rounded and took up by conjured imagined abuses that be parts from not where the bill. It mattered has in the minds of The Governor some. an they they bill rested if constituted power Yet, pardon. no valid to it is part being partially integral subject have challenge existence of the to they vetoed —out came! empty penitentiary suggested might could, overnight. sane mind He but no portions the' viewing while would. our proscribed in this light, to be by opinion employs language criticized both Laws are enacted constitutions Attorney ánd counsel for defendant applied drafted and administered Curiae, General, by reason of its as Amicus reasonable minds. It is neither a fair nor implications. language is supposed meaning test of their that on occa decisive follows: are, sions, powers conferred them “ * * * challenged act is not be, conceivably could abused. We have grounds raised invalid on opinion on file reviewed our case it, including claim that the against study the briefs filed after careful ap- subject time, questioning act is bad because the at this plies subsection as well doing section so. propriety of our (Emphasis added). agree disposed through, Seen we are application In an lan the italicized special with Bureau counsel for guage to the facts of this case we Revenue, position would that defendant’s said, nothing already order to retract. As question *10 accomplish purpose proscribe open to his to all at power partial veto exercise the of Sabbath, saloons on the was the Governor We adjournment legislature. after compelled presupposing language to strike and, hence, unwilling subscribe are unable permission such found. we wherever As attach any we Nor do such conclusion. matter, acting strictly view was with for defend- significance, as counsel do quasi-legislative capacity in his in exer of ant, paragraph last that the to the fact did, partial cising, as he his veto. Gov- to direct Art. Const. fails § usurpation in his action no We see State, Secretary of deposit with the ernor to pres function. legislative There here portions any time, the ator immediately, ap reducing, scaling, nor ent no his exercising approves, a bill he freely all propriations, cited counsel in supposed, of partial is not veto. case, Curiae, including Amici as this carrying the course, be found he would example typical might what be called billfold. hip pocket, in his bill around function, usurpation purely legislative of a with deposit same duly Naturally, he would authority, Fergus v. citing among other State, the case Secretary as Russel, an Ill. 110 N.E. finally acted. he had upon other notation at A.L.R. 600. case, reconsidered the We have whole power of We entertain no doubt of rehearing, and remain if before us satis- Court, a Chief Executive when and if filed, opinion conclu- our fied with the puts robe Governor discards the. the case applied the facts of sions exercising the legislator, us. shall be able to dis- The motion for rehearing will be denied. two and rule accord-
tinguish between the It is so ordered. transformation ingly, whether claimed appropriation scaling an or otherwise. be in ' here, situation confronts us a fact and COMPTON, JJ., No SADLER authority speak decisively McMANUS, denying J., us the concurring. D.