State Ex Rel. Maloney v. Sierra

Regardless of our conviction that is a great contribution to civil U.J.I. rel., STATE New Mexico ex James A. MALONEY, Attorney procedure General, and our sincere desire Plaintiff-Appellant, strict adherence to the instructions and therein, directions contained we cannot (Substituted David R. SIERRA say for L. A. Mc in give this case the failure to Culloch, Director, Jr.), Department of Al prejudicially No. 17.1 affected

U.J.I. Beverage Control, Defendant-Ap coholic right parties. substantial pellee. The case is remanded to the Court No. 8964.

Appeals for the other consideration of Supreme Court of New Mexico. points appeal raised to that court Nov. 1970. disposed which were not we have herein reversed.

It is so ordered. McKENNA, JJ.,

TACKETT and MONTOYA, Judge, Z. District

SAMUEL

concur.

COMPTON, (dissenting). Chief Justice my that all is considered on a Jury Instructions stand

Uniform give

parity, and that failure

one, reversible applicable, constitutes where preserved for

error the error where

review. purpose of the It was neither the U.J.I. court, its adopting in

committee nor this rules, judges put trial

proposed regard to instructions. jackets with

strait action, entering the manda-

The court’s to the Bench

tory give Order from a

and Bar a windfall —a surcease drafting in- danger,

practice fraught with uncertainty.

structions in haste that the refused points out majority only cautionary. Be

instruction said must the court may, it is the one away has now Chipping given.

be U.J.I. the door camping at begun will done. what

the trial courts this court suggests majority (§ 17(10) eye our Rule keep one

must Comp.) N.M.S.A., 1953

21-2-1(17) done, construing If and when U.J.I. demise. have met its will U.J.I. a different having reached majority

conclusion, respectfully dissent. I

OPINION McKENNA, Justice. filed a judgment action under our 22-6-1 §§

22-6-3, N.M.S.A.1953, against Director Department Beverage of Alcoholic ruling He (1) Control. that ch. signed Laws the Governor 46-10-14.5, April 46-10-14.1, (§§ Supp.]), N.M.S.A.1953 is unconsti- [1969 ; (2) tutional that signed ch. Laws April Governor not codi- statutes, fied in our the controlling stat- permits ute and that it the sale and con- sumption of liquors by alcoholic the drink premises on licensed on Sun- days between the hours 7:00 a. m. until midnight, and (3) that the defendant Direc- tor enjoined be enforcing ch. supra.

The Director praying answered that district constitutional, court declare ch. its repealed enactment ch. effect, event ch. 216 is in does permit sale during hours but consumption service and thereof in proposed accordance with regu- lation 21No. pro- This Director. posed regulation generally dealt with the serving beverages Sundays in counties not subject county option provision provided ch. such bever- ages “pre-sold are granted cost” without on a preceding legal day.

The Intervenors maintain horse- race tracks in the state the owners liquor They opposed licenses. posi- General and claimed is constitutional and sev- § erable from portions unconstitutional of ch. 280 and permitted them § sell, serve or consumption drink on Atty. Gen., Maloney, during A. Richard racing season between the James Smith, Gen., Fe, Atty. hours of p. Asst. Santa for 12:00 noon and 11:00 m. J. - plaintiff appellant. The defendant Director filed counter- Dickson, Albuquerque, asking claim Jr., declaratory judgment, Frank P. for defendant-appellee. a construction of Laws 7(C), ch. and club (§ 46-2-14(C), N.M.S.A.1953 licensees-shall allow them [1969 sell, serve, Supp.]): deliver and of alcoholic on their effective, any issued regulation “To premises Mondays licensed from 7:00 shall be reviewed director a. midnight, weekdays m. until on other attorney general prior filed as from midnight previous day after of the required and the fact of his review law m., until 2:00 then a. from 7:00 a. m. un- shall be indicated thereon.” midnight, Sundays only til and on after said that his counterclaim the Director midnight day previous until 2:00 21, regulations he submitted his a. m. The dispensers licenses of of al- Attorney rejected who General liquors coholic shall allow them to serve He Gen- claimed them. of alcoholic Act, power eral had under 7 liquors premises on their licensed reject proposed regulations, his midnight. from m. until 7:00 a. rejection and that a not affect did validity enforceability; but if the Attor- “ any ney reject pro- his ‘B. is unlawful for General had liquors posed regulations, rejecting the of alcoholic to sell or the action retailer unlawful, any li- particular regulations liquors, deliver alcoholic or for three deliver, sell, arbitrary, dispenser censed capricious or club to and unreasonable. rejection consumption of alco- replied that serve or his valid, liquors premises holic regulations on their licensed denied authority. prescribed than those during hours other unlawful exercise of ” by this section.’ court on issues were submitted 1969, stipulated Chapter First Session proceeding exhibits. Before Laws of further, quote part Legislature, signed acts Twenty-Ninth §§ 46-10-14.1, April 46-10- involved: 14.5, (1969 Supp.). N.M.S.A.1953 Chapter Laws First Session Legislature, Twenty-Ninth sighed ACT “AN

April not codified. LIQ- RELATING TO ALCOHOLIC ; FOR COUNTY- PROVIDING UORS “AN ACT FOR SUN- OPTION WIDE LOCAL LIQ- TO RELATING ALCOHOLIC CERTAIN COUN- DAY IN SALES UORS; AND AMENDING SECTION TIES; FOR SUNDAY PROVIDING 46-10-14.1 1953 (BEING NMSA LAWS RACETRACKS; AT CERTAIN SALES 1) CHAPTER TO SECTION 46-10-14.1 REPEALING SECTION PROVIDE FOR THE OF SERVING (BEING LAWS NMSA 1953 LIQUOR ON BY DISPENS- SUNDAY 1); EN- SECTION CHAPTER ERS. 46-10-14.1 A NEW SECTION ACTING “BE IT ENACTED BY THE LEGIS- NMSA 1953. LATURE THE STATE OF OF NEW THE LEGIS- “BE IT ENACTED BY MEXICO: OF THE NEW LATURE OF STATE “Section 46-10-14.1 NMSA Section 1. MEXICO: (being Chapter Sec- Laws NMSA “Section 1. Section 46-10-14.1 1) is amended read: “ 1959, Chapter (being Laws ‘46-10-14.1. AND DAYS PIOURS repealed and a new 1) Section Section OF BUSINESS:— is enacted NMSA 1953 46-10-14.1 “ of al- ‘A. The license of retailers read: liquors coholic shall to sell allow them “ DAYS ‘46-10-14.1. HOURS AND and the liquors, and deliver alcoholic liquors OF BUSINESS.— licenses of of alcoholic “ sold, put ‘A. shall to the voters Alcoholic he election served, on li- delegates select or consumed to the state delivered constitu- only during convention, tional ap- censed the follow- election prove constitution; days specified: ing a new hours and Mondays a. m. “ “'(1) on from 7:00 majority ‘(3) if a of all voters midnight; until county voting on the “ weekdays after ‘(2) other Sunday sales, sales vote for Sun- day midnight 2:00 previous until day sales shall be within the ex- m., ; midnight a. then from m. until 7:00 a. terior county. boundaries of that aIf .and majority of county voting voters the “ question on the Sundays only midnight approve Sunday do not after ‘(3) on n ofthe sales, question again the day except shall previous until a. m. not be 2:00 by county submitted the provided B of commissioners Subsection n section. expiration until period the of a four “ years from the date of the election. by liquors ‘B. Alcoholic the drink sold, “ and consumed served Dispenser, ‘D. retail club and licen- premises licensed the licensee holds where sees shall places of business close n dispenser’s license, Sundays during voting days hours the of the m., p. the hours of to 11:00 12:00 noon primary election, election, general elec- n hereinafter called “Sunday sales.” municipality tions for officers of a “ provisions ‘C. The B Subsection other prescribed election as self-executing .are not but shall become regulations rules and of the chief of the n effective as follows: division of Dispenser, control. retail and club “‘(1) county licensees shall also commissioners of close n each places of county business from having population 2:00 a. m. on over one Day fifty Christmas until hundred 7:00 on the thousand the last official a. m. day federal after Christmas.’ decennial census in each county having of the first class more Section 2. SUNDAY AT SALES twenty-seven than ($27,— million dollars Notwithstanding other RACETRACKS — n 000,000)in having assessed valuation and provisions Liquor Act or Control population of not more than sixteen Section 46-10-14.1 NMSA or the [16,000-] thousand less than four- any election, outcome it is lawful for persons teen [14,000] according thousand dispenser’s the holder of a license whose census, to the 1960 federal decennial licensed are located on a county in each having of the first class track, horse-race licensed the state twenty-one more than million dollars sell, racing commission, per- serve twenty-five ($21,000,000), but less than mit of alcoholic million dollars assessed ($25,000,000) in Sunday during drink on the racing having population valuation and of not season the hours between of 12:00 noon eight more than thousand (8,000) p. and 11:00 m.” less persons than (7,000) seven thousand .according to the 1960 federal decennial

census, The district court determined adopt shall submitting a resolution controversy actual existed county voters of between question required that the permitting Sunday interest sales within the coun- ty; settlement of It found counties, Bernalillo, three Lincoln “‘(2) question shall upon be voted Taos, qualified op a local conduct by the county voters of the at the next tion election under ch. wheth decide (cid:127)succeeding regular special county-wide n election, er excepting permitted. that the shall sales would be 280, supra, remaining portions from the of ch. unconsti- severable found Section ch. 280. specific finding was: tutional. counterclaim, As Chapter judgment to the

“12. That Section IV, was that the Article Sec- General has Laws of violates pass upon regulations “to review and Mexico Constitution. is- New sued” made there- defendant counties Director. The classification any substantial dis- in is not based on Only ap- filed an the three counties tinctions which make peal. He judgment attacks the court’s applies different from to whom so respect only, one which was that ch. in the state as other counties does not sale respect legislation different liquors by prem- on the addition, the characteristics to them. ises of from 7:00 the basis classifica- which form a. midnight. m. until Director’s an- tion, to-wit, population and amount of brief, II, swer under Point contests counties, assessed in said valuation court’s on the counterclaim but germane of alcoholic sale appeal cross-appeal was filed Sunday.” liquors on required by Director as our Rules 5 and 7 216, (§ (2) 21-2-1(5), (2), N.M.S.A.1953). Chapter (7) As to the court found: (§ Our Rule 17(2) 21-2-1(17) (2), N.M.S.A. “16. That Subsection A of Subsection 1953) applicable. is not See Frederick v. 1969, Chapter enacting of Laws Lines, Younger 393 P.2d Van provisions dispensing for the of alco- Accordingly, judg- 438 (1964). the court’s Sundays, liquor holic omits the word ment on the counterclaim is final. following ‘sell’ uses the language: and Furthermore, no one contests the ‘The licenses alco- of of judgment of the court favor of the liquors holic shall allow them to serve Intervenors, declaring judgment and its and Sec alcoholic of 280, supra, as liquors severable on their licensed constitutional, final. is also mid- 7:00 m. until a. night(Emphasis court.) district proceed Before we but not to “serve knowingly legislature “17. That question, sell” have sensed con- we some intentionally ‘sell’ omitted word cern in our the main Court as whether portion dealing from that of the act with presented subject-matter proper suit dispensing of alcoholic on declaratory judgment 22- While relief. Sundays by dispensers. 6-3, N.M.S.A.1953, provides that: act, purpose “For the of this the state ambiguity “18. That no is created thereof, Mexico, official the omission of New the word ‘sell’ from the be sued and sentence of A Subsection of Section rights, or other Chapter entered when the dealing status Laws relations of the call for a dispensing alcoholic Sunday. construction Constitution Mexico, state of statute New “19. That the word ‘serve’ in or- its thereof.” dinary commonly meaning understood controversy” permission does there must be an not also include “actual ” party” petitioning judg- an ‘sell.’ “interested 22-6-1, Apparently, N.M.S.A.1953. ment. § Intervenors, As to the the court deter- the concern is the absence occasioned mined that supra, Section 2 of ch. was dispenser party. of a licensed containing constitutional as a reasonable classification rel. Mexico and a reasonable exercise State ex Overton v. New Comm., legislative power, State Tax P.2d Section was Overton, county parties” 22-6-3, tions of the (§ a subordinate N.M.S.A. official, for, 1953) from his received instruction call but the interests of Commission, superior, public require Tax State and State we break exemption against Overton, as- allow the soldier’s deadlock. In pursuant sessed valuation to an amendment observed that a determination of the neces- sary county personal “depends the basic statute. The official stake much the * asked the issues parties plaintiff, district involved as the declare ” * * unconstitutional, stating personal stake, amendment that a The element of controversy Carr, we thought, existed and the quoting between him from Baker v. Commission, Tax about to which was 82 S.Ct. U.S. wrongfully apply exemp- force 663 (1962), him to L.Ed.2d towas assure “[the] tion, prohibit concrete granting his adverseness sharpens * * presentation exemption entitled it. held issues those We county that the assessor was a subordinate The issues before the district court were direction; subject officer the re- sharp opposing. sponsibility for official action was with said all of ch. unconstitutional. and, superior personal absent “a stake” The Director said no. The Gen- controversy, in the outcome of the he had eral construed ch. 216 to the sale of standing justiciable to sue and no beverages by the drink on Sun- 22-6-1, troversy presented under § days. rejected The Director interpre- supra. expressed The nub of the decision is Presumably, tation. dispenser at 462 P.2d 616: would position have taken the of either the Attorney General or the Director. The personal “The Assessor has no stake in presented deadlock brought is not great- into the matter. isHe under direction the er or by lesser presence focus or ab- Commission, of the State Tax superior a sence dispenser, licensed nor are the 72-6-12, office. Comp. N.M.S.A. 1953 § statutory duties, responsibilities and rela- The duty protect Assessor has no tax- tions of intrinsically the officers involved payers or against wrongful veterans dis- by affected presence. his absence or A ” * * * (Emphasis crimination. ours.) real, actual, concrete controversy exists. productive Our decision bewill and mean- Our situation is much different. ingful terminating We have here an administrative stalemate Hence we are not departing reality, superior between two officers detrimental or dispensing hypotheses advice on assumed public interest. attorney general parties. unconcerned If all held charged by is duty statute with viewpoint merely same sought and prosecuting in court action when in his us, confirmation from a different situation judgment the requires interest of the State presented. would be See State ex rel. such action. 4-3-2(B), N.M.S.A.1953 § Education, Miller v. State Board of 56 (1969 Supp.) He represent also must 141, 143, Idaho 52 P.2d (1935). 144 State in appeal. 4-3-2(A), N.M.S.A. (1969 1953 Supp.). The defendant is To force the Director to first issue charged duty with the administering citation for a violation interpretation of his and enforcing par laws. Both purpose 216 would shorten the of the superior ties are separate Declaratory officers in realms Judgment and Act enshrine each his own area charged needless Congressman formalism. As Gil- responsibility stated, ultimate bert Cong.Rec. official at 69 (1928): action. Because of their present step duties each is an “inter “Under the you law take a party.” ested Each light area of dark and then turn on the see personal involved, law has a you stepped stake if into re a hole. Under quired duty declaratory you responsibility, ultimate on the law turn and the “rights, light step.” note legal status or other rela- and then take the We in Taos Auditor duty Sadler who had the comment under the law Justice Sedillo, protect County questioned Board of Education funds. He (1940): authority City County 101 P.2d of the of Denver levy to issue certain bonds taxes for Borchard pointed out Professor “As payment. purpose of the suit was Legal Thought,’ article in ‘Current secure an “advance” declaration as to part on the there has been a reluctance legality proposed action. apply the of the courts to new some P.2d, at court 102, the stated that remedy. greatly This results in narrow- auditor, plaintiff, “being person whose ing operation.” the field of its relations are affected analy- thought in his Professor final Jaffe’s the ordinance which authorizes the issuance Standing sis of to Secure Review: Judicial bonds, these properly instituted these Actions, 75 Plarvard Law Review Private proceedings.” While there (1961), at is that: decided that the judgment would bind the public-law do not see the “We function unjoined taxpayers, say we cannot that here simply of the courts as the rather un- dispensers, but a declara- byproduct fortunate if unfortu- —or us would not be moot ap- or of no nate, at byproduct the most the —of preciable import it or value for will end the litigation. jurisdictional ventional Attorney stalemate between the General and great judges criteria evolved our Liquor Director. been, be, pre- should continue Price, In State ex rel. Ariz. Sullivan dominantly rules of restraint. But these P.2d 108 A.L.R. justiciable; rules seek to define what is judg- my and it thesis that an issue otherwise validity constitutionality ment justiciable ipso under these rules is not provision of a certain of the motor vehicle nonjusticiable facto because of the lack court, regarded law. The. at it as of a plaintiff.” conventional duty cause of action those “so that whose To force the issue a Director to citation under may quickly to enforce it law first would take him to the risk of know whether if' not, do so should proceeding in conflicting the face the law is defective it be cured place and coming Legislature.” session of the General in dilemma In Wingate Flynn, 779, 139 249 v. Misc. agreeing alleged with the violator. Such opinion in N.Y.S. aff’d without 233 surely a situation 785, 917, App.Div. 256 250 N.Y.S. N.Y. dispute interest. This has reached the 690, 195, stated, 177 N.E. the court at 249 point Supreme necessary by found Court N.Y.S. 354: in Public Service of Utah v. Comm. possible litiga- “Future and confusion Wycoff Co., 344 U.S. 73 S.Ct. present will be a deter- avoided L.Ed. wherein the (1952), question mination of involved. Supreme Court said: right to Public officers have the should disagreement “The must judicially legal have their deter- duties must contingent nebulous or but have way only mined. can the In this shape taken fixed and so that a final disastrous well-intentioned but results of can legal court see what issues certainty.” illegal acts be avoided with deciding, what effect its decision will adversaries, have on the some useful and parte County Ex Education Board of purpose deciding to be them.” achieved Ky., Ky. Montgomery County, states (1935), presented Other seen it as we see it. a situation S.W.2d City County petitioner alleged In McNichols v. and where the board members Denver, they (1937), were in their as to Colo. divided plaintiff County City questions was the and asked for a declara- certain and questions prior were whether a was a proper

tion. The case judgment, remedy stating controlled future action what a existed under the statutes proper of certain to was the construction right determine the to state aid. The sections, declared, statutory they and were constitu- at the suggested justicia- remedy The there inadequate tional. court held was was and decided that a controversy. declaratory judgment ble both was useful and appropriate since the now town should Zimmer, Ky. In Dietz v. 21 S.W. have an answer: residents, (1929), plaintiff 2d tax City payers of Covington objective and electors of the “The of declaratory judgment petitioned for practice a declaration the defend our is to obtain relief from disqualified just declared as candidates ants be uncertainty such or doubt. It aims to adjudged certain as entitled party others be rights, enable privileges whose controversy place. justiciable powers take No are endangered, threatened or expressed placed presented was for the reason in uncertainty to invoke the aid page 1000: of the court to obtain a declaration of his rights relations.”

"They present justiciable no actual con- troversy respect rights Langer State, 69 N.D. 284 N.W. theirs, they any nor have duties 238 (1939), was an action the members of perform respecting Budget which direction Board defendants required.” of the court is were desired members of various state boards undertakings industrial carried on quite contrary; case 'is Our controversy state. The was clearly perform have duties to con- whether required the defendants under were controversy cerning justiciable which a statute furnish a statement of exists and the of the district court direction necessary estimated expenditures. required controversy. to resolve reporting sup- said were forms praying The answer filed the Director plied but the defendants failed to had use opposite declaratory pinpointed relief the forms and submit the information. Progressive Party Flynn, issues. required defendants said were Party 400 Ill. 79 N.E.2d 516 controversy do Was there so. right election determine its sued officials to could Declaratory be determined under the participate in primary and the defend Act, Judgment request or was it for an ants a determination counterclaimed for advisory opinion or to determine an abstract controversy An actual question ? found exist: court decided that there was a ap- “The filed certain counterclaim troversy respective rights “as pellees asking for a declaration of plaintiffs duties defendants appel- on the same involved in statute N.W., and, (284 under law” at 246), application lant’s is an admission them further: controversy’ that ‘actual is involved * * reported ample “The bear required cases evi- as public dence that officers and boards People, App.Div. of Town Ohio v. frequently have an action resorted to 220, 35 N.Y.S.2d is a (1942), case where declaratory relief to obtain determination declaring a asked for controversy of public with some other highway that a responsi- certain was its board, questions involving officer bility kept open repaired. to The power duty. official quandary” officials town were “in a responsibility its having received notifica- Declaratory Judg- “In his work that, ments, tion from the says: State Public Works Professor ‘Ad- Borchard repaired, unless “will state aid be with- ministrative boards and officials fre- held;”' questioned quently defendants each sue other for declaration duties. rights and unrealistic. There the respective Governor their power a declaration such officials of his make interim evident coercion, appointments, in order Secretary which only adjudication, statutory perform their of State denied. The thought to establish simplest procedure merely duties, was a difference of and that the since any appoint- common use of Governor had not Hence, the made the best. De- though controversies.’ ments.—even declaration in such asserted Governor Borchard, pp. Secretary claratory Judgments, opinion pre- of State’s filling vented him from 609.” vacancies. soundness of this decision has been as to The suit was some dismissed severely by criticized Professor Borchard merely to them it was defendants because as Declaratory Judgments Ed., in his (2d questions points request for advice on page 1941), footnote at 45: never arise. law which “ * * * really There Bennett, Recall Bennett Committee vincing why reason this case held (1952), an election Or. justiciable, even the absence of an cross-complained officer for a declaration appointment. actual The Governor duty of his under the law as to candidate power, Secretary claimed the serious- quote page Bennett. 490: We ly denied it and vacancies existed to reasonably “He as to he doubt how which the to make Governor wished public should he act. As officer prompt appointments. This situation is peculiarly belongs a class which is ripe adjudication as are dozens for, judicial guidance, entitled as said chapter of other cases discussed in the Flynn, supra Wingate Misc. [139 powers in which administrative ‘Public officers 354], 249 N.Y.S. powers respective their officials contest right should have the and duties.” judicially way duties determined. In this only can the disastrous results of well- Lusk, In Harriett v. illegal intentioned but acts be avoided 320 P.2d we were con- 738, 741 certainty.’ Har with As said in Cobb v. “that the of a statute construction vinced supra, rington, 144 Tex. 190 S.W.2d can be attacked both formal or sub- 709, 713: grounds by party standing stantive with “ Borchard, sue,” '* * citing * at 772. the action for Borchard, agree at We with wherein instrumentality judgment “is an to be observes, approval, “party he that the preventative wielded in the interest of deleteriously at- affected” as as “the well justice scope kept and its should be wide torney public” general behalf of the liberal, hedged not be should ’ ” permitted questions have been raise about technicalities.” constitutionality and construction of Supreme Oregon Court of further duty our statutes it is statute. Under assumption jurisdic- observed that attorney any pro- general to institute mandatory the trial court was not party ceedings may be a “in the state and, discretionary but entitled “was when, judgment, or interested in his interest bearing consider action, requires such interest of the state * upon juris- assumption * *” 4_3_2(B), N.M.S.A.1953 § trial In our case the court diction.” Supp.]). [1969 specifically found that it was interest to settle the that our every reason to believe We have Dammann, dis- exercising their courts, La district State ex rel. Follette v. when 17, 627, request A.L.R. to entertain a declara- 220 Wis. 264 103 cretion N.W. contrary tory relief, request with appears 1089 be to the will scrutinize each (1936), not convert our to follow it as too narrow utmost caution so as to we decline 134 ponds” “judicial to fish for legislature

courts into manifest intent Mears, 111, repugnant Lide 231 56 advice. v. N.C. to the context the con- 404, S.E.2d Allstate In (1949). provision 409 See stitutional or statute.” Co., Insurance surance Co. v. Firemen’s 76 312, Ortega, 422 v. 77 N.M. P.2d 353 430, (1966). N.M. 415 P.2d 553 McManus, (1966); Montoya v. N.M. 68 stated, For the reasons we decide that (1961). 362 P.2d 771 entertaining district in did not err jurisdiction by the dispute presented Even if ambiguity, we assume doubt or it petition and the answer. legislature evident that in its first sentence in subsection A of section 1 ch. proceed can now to the reason We 216, supra, was aware of the “sell”: word appeal. the district court Was “ * * * dispensers the licenses of [A]nd 216, declaring correct in 1 ch. Sec. liquors alcoholic and club licenses permit does not sale of sell, serve, shall them allow deliver and liquors by drink on * * * consumption on Sundays only midnight previous after find midnight 7:00 a. until ? In its m. day until 2:00 a. m.” Then the sen- follows ings, the “serve” court said that the word concern, tence of which eliminates the word ordinary commonly In its understood Sundays by “sell” and serving allows meaning permission to does not include midnight. drink from until 7:00 a. m. “sell”; ambiguity that no created the omission of the word “sell” from legislature permitted When A sentence subsection of Section dispenser Sundays, to sell legislature knowingly and that the expressed clearly its intention in ch. Intentionally omitted the word “sell.” 280, supra, Sales”; “Sunday in the title: The district court is correct. in B subsection of Section 1: “Alcoholic Very recently, Tafoya Police v. State sold, may be served and consumed Board, (1970), 81 N.M. * ** C, Sundays”; in subsection in- this Court clear stated absent sales,” referring “Sunday Section expressed contrary, tent words are 2 permitting dispensers at horse- ordinary meaning. to have their and usual race tracks sell, “to serve or table,” at set “Serve” means “to wait “to * * * by the drink on portions out food or drinks.” Webster’s Sunday.” though 1 Even of ch. Section Dictionary. Third New International 280 has been held unconstitutional distinguishable not here While for reasons court, passed by district ch. 280 was material, Supreme Oregon Court of materia, legislature pari same is in ordinarily accepted decided that in its County Board of Com’rs Hamilton meaning, the word “serve” is limited State, (1916); 184 Ind. 111 N.E. 417 City “sell” is not included therein. Pharr, City Transp. Tenn. Co. v. Bay Coos v. Aerie No. 179 Or. (1948): “Conceding 209 S.W.2d (1946). P.2d * * * invalid, important Act to be it is doubt, permitted If there be we are showing legislative intent.” See State interpret, arrive at the intention of Fidelity Maryland, Deposit & Co. of legislature, con- but rules or canons of at P.2d at 701 * ** struction are not at a to be to arrive invoked stating, “The two acts intent, construction inconsistent with clear materia, peculiarly pari having been 1-2-2, N.M.S.A.1953: stated passed legislative the same session.” Clark, 340, 342, 455 P.2d State v. “In the construction of constitutional 367, at provisions, following (1969); statutory Statutes § C.J.S. statute, construing particular “In 834: rules shall be unless such observed passed the other acts the consider struction be inconsistent with would session, “selling, son although they offering are un- for having at the same sale or in possession sell, intent to or were vetoed.” alcoholic constitutional liquors by packages.” the drink or in 46- Attorney argues that the 1-1, dispenser N.M.S.A.1953. Thus special mean- acquired word “serve” has by drink, “serves,” “sells” just ing describing the functions of a tavern- “sell” is not liquor limited in packaged to keeper inn-keeper providing or or food sup- beverage payment, citing in return for cannot We overlook .the omission of the port special meaning. for this He states word “sell” the act. at- from We cannot - legislature presumed that the em- to have any special tribute meaning to “serve” ployed special the word in that “serve” statutory where the liquor entire scheme for meaning. that the argues He further word control support fails to disclose “sell” has no to the reference whatever special meaning. depart such a We cannot furnishing liquor portions, in individual giving ordinary ordinary from words drink, by is, that that refers “sell” meaning where there is no evidence only to privilege granted the additional legislative intent to do otherwise. Our dispenser “sell and deliver” alcoholic analysis by is buttressed for when beverages by packages. the bottle the legislature sales desired His legislature conclusion is that the ban- Sundays, say on did not dispensers goods ned selling package words, “serve.” It used both serve and Sundays dispensers but that have sell. privilege serving added interprets The Director so ch. 216 as is, Sundays, serving drink on serving of alcoholic furnishing payment. in return for liquors previously purchased. if There outset, just At as a matter of problems some obvious enforcement sense, practical difficulty in as- interpretation with the Director’s but those similating suggestion “furnishing problems interpretation do not make his so payment” return for means “serve” but absurd or unreasonable as us may, not “sell.” Be that as it the net effect go urged by Attorney in the direction argument is that General’s General. dispenser does not “sell” when he Our conclusion is that the word “sell” payment beverages furnishes for alcoholic purposely omitted from ch. 216 drink for prevent Sundays the sale the drink on premises. This is not what the court right and the district court was when it did People Dayton, Mich.App. decided in grant prayer General’s (1969): N.W.2d “permits consumption” ch. 216 the sale and “ * * * George Behrens was not liquors on the the drink member of the association known of alcoholic 6252, nor had VFW Post he contributed between a. m. until 7:00 post fund from financed midnight.” purchase liquor. Thus it can- not, purpose Like it enjoyed not be that he said legislation regulate control is to and re ownership liquor prior to its promote. Application strain and not to paid served him. The fact that he Ass’n, Township Bethel Veterans Home the drinks after were to him served Pa.Super. (1956). 119 A.2d 613 leads one the trans- conclusion that Our policy. conclusion does offend that meaning action was a sale within policy any loosening That it, is the Liquor Control Act.” legislature, business of the not ours. Furthermore, statutory our definition of dispenser support does not dis- is affirmed. is so any per- tinction for dispenser it defines ordered.

COMPTON, SISK, J., anu J„ C. concur. of the Director’s regulations. Three race- corporations track intervened, and an- swer asked that 2 of ch. § WATSON, (dissenting). Justice permits which the sale respectfully I from noon dissent. to 11:00 P.M. at race- tracks during the racing season be declared Before proceed we can review constitutional. action of the lower court we must assure questions Two presented. First, are ourselves that jurisdiction had to act. original parties “interested” so as to jurisdictional questions are: Can make this “justiciable” controversy? Attorney General and the Director obtain second, And is there a case or actual con- question on the troversy before the court which would related subjects from the District Court of permit it to declare rights of the race- County Santa Fe in this action? Can the corporations, although track they did not intervenors? Since the juris- allege of their rights were dictional it must be sponte raised sua subject threatened. On this quote from resolved before proceed. we can Taos Borchard, Declaratory Judgments at 33 (2d County Board of Sedillo, Education v. Ed.1941) : 101 P.2d 1027 (1940). “Justiciability necessary is the condi- declaratory judgment Our statute, 22- § tion judicial relief. It is that which 6-1, N.M.S.A., Comp., “In states: the term ‘case’ or ‘controversy’ de- cases actual controversy the signed insure, Supreme and the Court record of the state of New shall Mexico frequent has had occasion consider * * * power have rights to declare foreign matter. have So the courts of other relations party interested What, then, ‘necessary countries. are the * * (Emphasis added.) justiciability? features’ of While state occasionally courts legislative assume petition Here the filed executive functions which could not be that, plaintiff’s General states opinion, imposed courts, federal 280, N.M.S.L.1969, unconstitutional, ch. determine contested is a traditional but that the defendant Director intends to judicial function of all courts in the west- it, that, plaintiff’s enforce opinion, ern Expediency world. the relative 216, N.M.S.L.1969, ch. permits dispensaries danger departments of conflict with other to sell liquors by the drink on government refusal have induced a Sundays, but that the defendant con- political chapter repealed major questions sider this to decide re- may interpret or it as not permitting peti- such sales. The Ex- findings. view mere administrative regulations further states that pediency function in desire not to plaintiff’s sistent interpretation with have abstract, concrete but to decide adopted not been by defendant and asks conclusively affecting contested issues the court declare in accordance with adversary interest, parties in in- plaintiff’s opinion enjoin and restrain and advisory opin- duced refusal to render provisions defendant enforcing ions decide cases. Actions moot 280, supra, against any of ch. licensed dis- ‘advisory,’ opinions are denominated penser in an- New Mexico. The Director is an interest when there insufficient petitioner swers the and asks the court ju- justify or defendant to declare the to be in law accordance judg- determination, dicial where addition, the Director filed views. In specific constitute ment would not interpret asking counterclaim court to litigant legal rela- relief to a or affect N.M.S.L.1969, re- 7(C), where, quires inadequacy tions or reason of “review” defendant, parties of the could decide for them this action? We not be sufficiently conclusive.” quote again Borchard, supra, at 888: page And at 36: “Administrative authorities find in the protection declaration a against mistaken ‘necessary justicia- “The features’ of illegal or against conduct and the result- bility greatest difficulty which afford the penalties ing general, attacks. In analysis requirements are the ‘inter- of the traditional compels law to- officer ested’ asserting ‘adverse’ claims. be his own constructionist, whether plaintiff When has the a ‘in- sufficient acts, he because he assumes he is law- judicial terest’ protection? to warrant fully thereto, act, authorized or fails to When are claims ‘adverse’? because he not, exposes assumes he is he ‘interested,’ case, “To be himself to legal some serious risks in relation either plaintiff capable security accuracy must stakes his be of on the decision; that, affected the his guess. of but This is neither nor besides wise the administration, ‘interest’ must efficient public, be ‘substantial.’ for the officer, Courts differ in or views as to what the individual citi- ‘substantial,’ is especially directly zen injunction difference affected. While qotable in has taxpayers slight actions offered designed relief for these dilem- mas, determine the validity public scope its is of action limited. The declara- under tory judgment statute or order. way administrative shows the out. courts, State pub- hardly possible when completely think the measure lic issue important, disposed advantage op- are find social accruing from the taxpayer’s interest, portunity trifling, adjudi- however as to secure a conclusive adequate to sustain justiciability upon cation contested official action be- the action. Federal courts in- fore rather than after it undertaken. more clined carefully to scrutinize justiciability the nature conditions are nat- plaintiff demanded, interest of urally any question to avoid (cid:127) public presented, issue rendering merely advisory opinions. that it be 'substantial’ plaintiff per- But the decision when made between sonally. plaintiff The factors giving authority, ‘substance’ bring- administrative appear to an interest importance ing power issue his its own relation, of the legal act, privilege op- an interested value of property, immediacy ponent, clarify position interest serves to ” * ** to be danger incurring affected decision. and averts the (Emphasis added.) dismissal, penalty, criminal action tort, public and the deleterious conse- Practice, See also 6A Moore’s Federal quences wrongful (Em- official acts.” (2d 1966). require- 57.17 Ed. As our to- ff phasis added.) adequacy ments for taxpayer’s inter- ests, see State ex rel. Overton v. State action, present only the intervenors Commissioners, Tax 80 N.M. P.2d interest as the matter how 913 (1969), requires when interest decided; should be concern of superintending exercise our defendant, and the serv- control. ex Corp. rel. Castillo v. New ants, is that the matter be decided. The Comm., Mexico State Tax requires constitution of states number (1968). advisory opinions. ju- or authorizes in declaratory judgment risdiction actions Here, we do think sale consequently than broader in those states public importance, is an issue of opin- it is in advisory New Mexico where that the Director General and the permitted. ions are not “De- should be commended for their concern Richardson: question. over Why shouldn’t claratory Judgments Advisory Opin- Legislation,”

ions 22 Tenn.L. Wis. 264 N.W. 103 A.L.R. 1089 Judicial (1952). Rev. 354 (1936). There, Governor power declaration of his to make interim question only standing The or one of appointments Secretary which the right cases, sue as in the Overton State denied. thought State The court this ex rel. v. Overton New Mexico Tax State merely opinion a difference of since Com’n, 28, (1969), 81 462 P.2d N.M. 613 any appoint- Governor had not made and State ex rel. Tax Overton v. State though ments —even the Governor asserted Comr’s, supra, because of the nature Secretary opinion pre- of State’s action here and the an lack of interested securing persons vented him from suitable party. plaintiff Either the or the defendant There, filling in the vacancies. the court would standing to appear in behalf of said that this difference in is not against state opponent. an interested controversy. enough justiciable to make a Sedillo, County Taos Board of Education v. The court said further: supra; 383, Lusk, Harriett v. 63 N.M. 320 “ * * * ; P.2d 738 (1958) Abbott Laboratories v. Any declaratory judgment Gardner, 136, 1507, 387 87 18 U.S. S.Ct. L. might that we now render would Ed.2d (1967); Railway 681 Order of Con those binding upon either real sense Swan, 520, ductors of America v. 329 U.S. appointed to of may hereafter be who 405, 67 S.Ct. 91 471 (1947). L.Ed. occupants upon present there or fice , circumstance alone sufficient of. That Certainly an standing has rendering a cause us refrain from against departments action other time, declaratory present judgment at the their state if interests make them would very persons rights of whose since the present adversaries so as or real case af protectible sought to be interests are an rel. actual ex See State declaratory judg requested fected Ulibarri, 184, Yeo 34 N.M. 509 279 P. v. thereby, prejudiced ment not be would (1929), a ex mandamus action. In State uncertainty 269.56(11), and section Walker, Highway rel. State Commission v. so-called, gave rise controversy 374, (1956), 61 it was N.M. be terminat proceeding, this would decided that a writ of mandamus would Mel ex rel. ed, 269.56(6). State section Highway lie. if the contention De Wyandotte of Com’rs lott v. Board partment against in its action the Land 1; Harrell 516, County, P. 128 Kan. 279 correct, Commissioner was and there Co., 161 Mortgage American Home v. said: “ 1023; v. Sadler 32 Tenn. S.W.2d * ** appropriate- fact This [the Mitchell, 36 S.W.2d 162 Tenn. de- ness of has caused us to mandamus] Miller, 261 149 Tenn. 891; v. Miller merits, although termine the case on its at A.L.R. 264 N.W. 965.” S.W. brought action was . at 1093 unnecessary is, therefore, judgment. Virginia, v. States West also United See pass upon whether under L.Ed. 55 S.Ct. 295 U.S. Declaratory Judgments Act, our 22-6-1 at the annotation and the cases in NMSA, 1953, lie seq., et an action will the annotation page at also A.L.R. against a at department state official 368. at 367 at A.L.R. department state suit another see: Taos In connection Aldridge, official. Dickson v. ex rel. Sedillo, County Board of Education Attor- (1960), the 390, 348 P.2d 1002 N.M. Chief, 1027; P.2d 44 N.M. restrain the ney sought to General State, 596, 154 Arnold v. Control, reclassi- Liquor Division of at 301 P.2d (61 P.2d 257.” li- holder of license. fying club 318.) were purchaser prospective cense “interest” permitted to intervene. us, however, is similar The case before the matter was Dammann, La Follette State ex rel. questioned, certainly the “interest” of but I would reverse with instructions dis- substan- intervenor matter was miss the action. capable being tial and was affected TACKETT, us, But, (dissenting). in the case before decision. Justice principal the intervenors as well as the The majority opinion contrary, holding opinion. The advisory seek join respectfully I Watson in his Justice do allege intervenors dissent and following. add the threatened, is there nor paramount question is whether there any contention either serious made present is here justiciable actual or con- ch. that defendant 2§ troversy to declare rela- legal 280, supra, relating liquor to sales any tions of party. interested We do racetracks, is not as a sever- constitutional party have an interested in this The action. portion would able of the act so that it majority authorities which the relies had n n { stand even if the rest the act is uncon- party. an interested stitutional. We should decline to district our' ap- is It obvious intervenors courts to be “judicial ponds” converted into peared simply herein to avail themselves fish advice guise under the possibility precedent of a estab- being judgment. Orange Independ against lished their interest and obtain ent School District Orange v. Inde West possi- against such assurance as could pendent District, School 390 S.W.2d appear- ble future adverse Their action. (Tex.Civ.App. 1965). majority opinion ance under these did not circumstances opening is wide the door fishing to allow present Public justiciable judicial ponds legal advice, This’court Co., Wycoff Service Commission of Utah repeatedly has it ad held will not render U.S. S.Ct. 97 L.Ed. visory opinions, yet that exactly what (1952). injunction against No majority doing. intervenors, advisory opinion and no can There is one additional matter in the rendered in their Bell behalf. majority opinion which troubles me Laboratories, Telephone Inc. v. Bureau of siderably. majority states: (1966). Revenue, interprets “The Director so as Sunday al- serving appeal the case here on there was previously purchased. cholic if distributor before the court below enforcement There are some obvious party” other “interested sufficient problems give jurisdiction. interpreta- it with the Director’s Its would not binding problems upon even be if but those do make hereto interpretation per- raised so or unreasonable in a later action “interested” absurd Alarid, as to us Asplund go sons. As said in direction urged by P. and reiterated General.” in State presented government, adversely “* * * Tax action other court particular ground complained ex Comm., supra: affected rel. It except is not the Overton v. New to sit legislative litigant when the in judgment claiming to duty legislative branch of this or Mexico upon of.” act be, pay while vites consumed was dishonesty in the sense include age chased.” Sunday those for the majority violation “sell,” if who I feel forced to liquor holds that “serve” but customers can drink liquor pf really “previously the law. consumed on claim such that will encour- “previously reasoning encourages does Sunday, actually pur- pur- in- chased.”

Believing that the district court had no

jurisdiction it, to decide matter respectfully before I dissent.

Case Details

Case Name: State Ex Rel. Maloney v. Sierra

Court Name: New Mexico Supreme Court

Date Published: Nov 23, 1970

Citation: 477 P.2d 301

Docket Number: 8964

Court Abbreviation: N.M.