No. 1723 | N.M. | Jan 14, 1915
OPINION OP THE COURT.
“See. 4124. Dpon every license granted under the provisions -of this act for the retail sale of malt, vinous and spirituous liquors there shall be collected before such license is issued, a tax as follows, viz.: For such license to do business in a precinct, village or town without the limits of any village, town or city having not more than five hundred inhabitants, and in such towh or city having not more than five hundred inhabitants, one hundred dollars; in a precinct, village, town or city of not less than five hundred and not more than one thousand inhabitants, two hundred dollars; in a precinct, village, town or city having more than one 'thous? and inhabitants, four hundred dollars.” 5
In 1905, this section was amended by. section 1, c. 115, Lv. 1905/by adding to it the following proviso:
“Sec. 1..: -That section 4124 of the Compiled Laws of the territory of New Mexico of 1897, is hereby .-amended: by adding thereto the following :■. -‘Provided, that no license shall be granted for the sale - of malt, vinous or spirituous liquors at any-pMce in- any county of this territory, except within the limits of -a city, town or village containing at least one-.hundred inhabitants; and any officer authorizing or issuing a license contrary to, this-provision shall be deemed guilty of av misdemeanor and upon conviction thereof shall.be punished by a fine of not less than one hundred dollars nor more than five hundred dol.Jars.” .-
The -controverted proposition in this case turns upon the question as ’ to whether or not the building wherein liquor was to-be'-sold at retail, under the license sought, was '-within the -limits of the village of Allison.
The, word “village”" is, defined in Bouvier’s Law Dictionary tornean:
“Any small assemblage of houses for dwellings or business, or both, in the country, whether they are situated upon regularly laid out streets and alleys or not.”
In a case note to the case of People v. McCune, 35 L. B,.:A. 396, will be found a collection of cases from the various states, wherein- the courts have defined the term, and an examination of these cases wall disclose that the meaning of the word is by no means fixed and unvarying. The .editor of-the case note says:
“Questions as to its meaning most often arise in respect to the construction of statutes, and in such cases will, of course, depend upon the context as showing the' intent of the Legislature.”
- Prior, to the Act of 1905, liquor licenses, for the sale of liquor-at any place, whether within or without the limits oL cities, towns, and villages, could be legally issued by boards of .county commissioners.
The rule announced in Kent’s Commentaries, § 462, for the interpretation of statutes, and generally, followed by the courts, is as follows:
“When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the objects and remedy in.view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion.”
In view of the statute law, under which a license could be obtained for the sale of intoxicating liquor at any place within the territory, however remote the building in which it was proposed to carry on business under the license might be from other habitations, prior to the enactment of the proviso of 1905, it was the evident intention of the Legislature to restrict the issuance of such licenses to the more populous sections of the country. It is properly inferable, we believe, that the chief object which the Legislature had in view was the restriction of the place of sale of intoxicating liquors to such buildings as were located in close proximity to other inhabited buildings, so that opportunities for the commission of crimes, the perpetration of which, as is well known and recognized, in many instances, is incited by strong drink, would be thereby lessened. Experience has demonstrated that it is unwise to permit the sale of intoxicating liquor in buildings far removed from other habitations, for here there is absolutely no restraint, and, when reason is dethroned by drink, or where unscrupulous and criminal minds so elect, the laws of society are held for naught and indescribable orgies enacted, men robbed and even murdered, with but slight fear of apprehension and subsequent punishment. The above being true, this court would not be justified in placing such a construction upon the meaning of the term “village” as would impair the legislative intent.
In this case the stipulated facts show that the building in which appellant proposed to carry on the liquor business is distant more than 1,836 feet from the nearest house in the village of Diamond; that it is located upon a tract of land embracing 160 acres patented as a homestead; that the village of Diamond is unorganized, and consists, of .more than 50 buildings used for residential purposes, together with a store building and a schoolhouse; that' the buildings are arranged along regular streets and are situated from 60 to 120 feet apart; that the buildings above named were all constructed by the Diamond Coal Company, on its own land, for the use of its employés; that there are no houses beyond appellant’s said house for some distance, in that direction; and that the country round about the main group of buildings within the village is very sparsely settled.
Appellant 'argues that, because the Legislature, in 1912, provided -(chapter 27, Sess. Laws 1912) "that the territory embraced in the proposed incorporated village shall not be less than one mile square nor more than three miles square, nor shall any such village be incorporated unless the' same shall contain at least one hundred and fifty people,” that the Legislature has construed the extent of the limits of a village, and that we should give to the term "village” used in the prior act the same construction as to boundaries; that is to say, that we should hold that an unorganized village embraces territory at least one mile square and not more than three miles square. Yery little consideration, however, will dispose of this contention. Suppose we should say that it embraces a scope of country at least one mile square, what point shall' we select as- the center of the square? Shall it be the store, the post office, the schoolhouse, or some other arbitrary monument? It is clear that the statute referred to affords no assistance in the interpretation of the Act of 1905, here under consideration.
Appellant also quotes extensively from the case of People v. McCune, 14 Utah, 156, 46 P. 659" date_filed="1896-10-09" court="Utah" case_name="Salt Lake County v. Richards">46 Pac. 659, 35 L. R. A. 396, in support of his contention that his building in question was within the limits of the village of Allison. That case «rose under a statute making it an offense for any person to establish and maintain any corral, camp, or bedding-place for the purpose of herding, holding or keeping any cattle, horses, or sheep within seven miles of any city, town, •or village, where the refuse or filth froln said corral, camp, ■or bedding -plage would naturally find its way into any .-stream of water used by the inhabitants of any ¡city, town, ■or village for domestic purposes. ' It appeared from the ■evidence in the ease that Plateau was a settlement, con •sisting of 14 families and a population of about 70 persons, and that they resided along Otter creek for a distance •of about 2ys miles, some of the residences being 40 rods from each other and some being a distance of 1 mile or more, and that their occupation was farming. -The Utah •court said: , . j ■
“From an examination of the act, which is amended by, the section above .quoted, it seems clear that by the use of. the word Milage’ ■ the intent of the Legislature was to include such settlements as the one in question, and there appears to be no reason why the .people of such a settlement, who are using the water of a stream for domestic purposes* should not have extended to them the protection which the law affords.”
From the above it will.be seen that the court simply held that this settlement came within the purview of the ■act, because it was manifestly the intention of the Legislature to protect the water supply of such a settlement. 'This case is only authority for the proposition that it is 'the duty of the court to ascertain the legislative • intent, ■and give it effect, if it can be legally done.
, Following the rule, we are compelled to conclude .that by the use of the said term “village,” in the Act of 1905, •the Legislature intended to prohibit the licensing of the ■sale of intoxicating liquor in buildings not , within the assemblage of houses used for business and residential purposes, reasonably contiguous to each other; that- an isolated building more than 1,836 feet from any other building within such village is not “within the limits” of the village, within the meaning of said act.
■ Another reason might be advanced, were it necessary, in support of our conclusion, viz.,-the building owned by appellant is located, or was intended to be located, upon his patented homestead claim.’ The residents of the village, as stated, are all employed by the Diamond Coal Company, and are engaged in and about the mining of" coal. The village was established and founded for coal mining purposes. All its residents have a common interest, while appellant, on the other hand, resides upon his patented claim, with divergent interests. He is not a coal miner, has no interest in common with the inhabitants of the village, is engaged in a different pursuit, and has no interest in the affairs of the village, further than to secure his mail, vote therein, and possibly trade at the store. If we were to include as residents of villages all those like circumstanced in those respects, there would be-absolutely no limit upon the right to issue licenses for the-sale of intoxicating liquor.
For the reasons stated, the judgment of the District Court dismissing the petition will be sustained, and it is so ordered.