Supreme Court of New Mexico
Decision Information
Board of Educ. v. Robinson - cited by 4 documents
Cortesy v. Territory - cited by 10 documents
Decision Content
SANDOVAL V. MEYERS, 1896-NMSC-026, 8 N.M. 636, 45 P. 1128 (S. Ct. 1896)
ALEJANDRO SANDOVAL, Collector of County
of Bernalillo,
Plaintiff in Error,
vs.
RICHARD B. MEYERS, Treasurer of County of Bernalillo,
Defendant in Error
No. 652
SUPREME COURT OF NEW MEXICO
1896-NMSC-026, 8 N.M. 636, 45 P. 1128
September 01, 1896
Error, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo County.
The facts are stated in the opinion of the court.
COUNSEL
Neill B. Field for plaintiff in error.
A strained interpretation, by interpolating into the language used by the legislature an exception not therein expressed, and not necessarily implied from the language used, should not be favored in construing a statute of this character. Sedg. Stat. Const., 251, 265; Priestman v. U. S., 4 Dallas, 30.
While it is true that in construing a doubtful statute, and for the purpose of ascertaining the legislative intent, all acts on the same subject-matter are to be taken together, the doctrine does not go to the extent of controlling the language of a statute upon the ground of supposed policy or previous enactment. Goodrich v. Russell, 42 N. Y. 177.
Nor can other statutes in pari materia be resorted to when the language of the one under construction is plain and explicit. Ingalls v. Cole, 47 Me. 530. See, also, Cortesy v. Territory, 6 N.M. 682.
G. W. Johnston for defendant in error.
"By necessary implication this does away with the use of the collector. He has nothing to do with the collection of licenses, and is, therefore, not entitled to his ten per cent by reason of the section cited. Board of Education v. Robinson, 7 N.M. 231.
Where there is an apparent conflict of laws the rule of construction is that both will stand, if, by any possible means, they can be made to harmonize. If the law of 1895 repeals that of 1891, it is only by implication. Suth. Stat. Const., sec. 138. See, also, as to repeals by implication, Wood v. U. S., 16 Pet. 362.
"Whenever one person obtains possession of money which, ex aequo et bono, belongs to another, the latter may maintain an action to recover it." Peterson v. Foss, 6 Pac. Rep. (Ore.) 397; Gaines v. Miller, 111 U.S. 395. See, also, State v. St. Johnsburg, 10 Atl. Rep. (Vt.) 533; Walker v. Conant, 31 N. W. Rep. (Mich.) 786; Bland v. Williams, 13 Id. (Minn.) 42; Bank v. Bank, 19 Fed. Rep. 301; 4 Wait's Acts and Def. 507; O'Conley v. Natches, 40 Am. Dec. 87.
JUDGES
Bantz, J. Hamilton and Laughlin, JJ., concur.
OPINION
{*637} {1} This is an action to recover from the collector
of Bernalillo county certain moneys collected upon dramshop licenses. He claims
that he rightfully retained the money as commissions of four per cent, and was
authorized so to do under the act of 1895. Under section 2901 of the Compiled
Laws of 1884 are enumerated some ten different occupations upon which license
taxes are imposed, and in this number is included that of retail liquor dealer.
Section 2903 provides that the assessor shall prepare a list of persons liable
to pay the license taxes, and return the same to the county clerk, who is to
indorse thereon an order, in the name of the county commissioners, for their
collection by the collector. Section 2904 provides for the collection of {*638} these licenses by the collector.
Section 2906 provides a penalty of fifty per cent if the license be not paid to
him within twenty days, and he was empowered (section 2907) to distrain for
nonpayment of the same. The assessor (2909) was allowed five per cent "on
the amount of taxes and licenses assessed and approved by the county
commissioners," as soon as the tax list was delivered to the collector.
The collector (2910) was allowed "ten per centum upon all license taxes
collected by him." In the place of the machinery thus provided, the
legislature in 1891 amended the law in respect to retail liquor dealers, -- one
of the occupations enumerated in section 2901, -- and provided a very simple
and inexpensive method. It required, in substance, the applicant for license to
apply for it to the county commissioners if the business was to be conducted
outside of a city or town, or to the mayor or town council if the business was
to be conducted inside of a city or town. The license was not to be granted
before such application, and was not to be issued until the license tax was
paid into the hands of the county treasurer by the applicant for the license.
It was also made a misdemeanor to sell liquor without such license. Acts 1891,
chap. 9. It will thus be seen that, as to this single occupation, it ceased to
be the duty of the assessor to include those engaged in it in the list of
occupations to be prepared by him; it ceased to be the duty of the clerk to
include them in the order to the collector; and it ceased to be within the duty
or power of the collector to receive such licenses, or to collect them by
distress or otherwise. Under the system provided by the act of 1891 in
reference to dramshop keepers, there was no longer such a thing as the levy and
assessment of such license, and there could be no such thing as licenses
"remaining unpaid." Strictly speaking, such a license tax as that
provided for under the act of 1891 is not levied or assessed. Cooley, Taxation,
p. {*639} 258, chap. 12. It is a
permission granted under the police power. Cooley, Taxation, p. 396. The
similarity in methods of regulations of licenses under the laws of 1884 to the
levy and assessment of taxes doubtless suggested the employment of terms
similar to the terms in reference to taxes. But, whatever may be the names
employed, the essential thing is that, as to all occupations except the one
embraced in the act of 1891, the assessor, county clerk and collector continued
to possess the power, and were charged with the duties, prescribed in the
sections of the Compiled Laws of 1884, to which we have alluded, and these
duties were similar to those performed in reference to ordinary taxes; but, as
to the one occupation of retail dramshop keepers, the powers and duties of
these officers entirely ceased after the passage of the act of 1891. In 1895
another act was passed, which provides that the collectors shall "collect
all taxes and licenses now remaining unpaid, and also that may hereafter be
levied and assessed and shall receive as compensation for their services four
per centum of the amount collected." Acts 1895, chap. 34. The general
terms of the power of the collector under the act of 1895 were, we think,
qualified and limited by the words "remaining unpaid," and
"levied and assessed." The only licenses which could have remained
unpaid, unless issued in violation of the law, and the only ones which could in
any sense be said to be levied and assessed, were those which continued to be
issued under the sections of the Compiled Laws of 1884 yet remaining operative,
-- that is to say, the nine remaining occupations; and as to all of these
licenses the collector's compensation was reduced from ten to four per cent. To
hold that the act of 1895 applies, not only to these, but also to the retail
liquor licenses specially covered by the act of 1891, would be to hold that the
act of 1895 repealed the act of 1891 by implication. In ascertaining a repeal
by implication, it is {*640} always
essential to take into consideration other statutes in pari materia, and all will
be allowed to stand which are not in conflict. "If, by fair and reasonable
interpretation, acts which are seemingly incompatible or contradictory may be
enforced, and made to operate in harmony and without absurdity, both will be
upheld, and the later one will not be regarded as repealing the others by
construction or intendment. As laws are presumed to be passed with
deliberation, and with full knowledge of all existing ones on the same subject,
it is but reasonable to conclude that the legislature, in passing a statute,
did not intend to interfere with or abrogate any former law, relating to the
same matter, unless the repugnancy between the two is irreconcilable."
Suth. Stat. Const., sec. 152. Of course, if the legislative intent is clear,
there is nothing left for construction, but the use of general words in a
statute is not alone to be regarded. If a general statute can be harmonized
with one applicable to a particular class or subject, it would be the duty of
the court to do so, rather than conclude a repeal by implication. The methods
required under the act of 1891, of an application to the clerk by the retail
dealer, and the payment by him to the treasurer of the license tax precedently
to the issuance of the
license, remain untouched by any line or word of the act of 1895, nor is any
new or different method provided instead. Nor are the methods provided in the
laws of 1884 revived. If these methods provided by the act of 1891 remain
unrepealed, and they must be so regarded, then no license can be issued until
applied for by the dealer, and not even then until the money is deposited with
the treasurer. Repeals so comprehensive can not arise upon such doubtful and
vague language by implication. The judgment will be affirmed.