{ "id": 8841623, "name": "SAFEWAY STORES, Inc., v. VIGIL et al., and three other cases", "name_abbreviation": "Safeway Stores, Inc. v. Vigil", "decision_date": "1936-04-20", "docket_number": "No. 4085", "first_page": "190", "last_page": "199", "citations": [ { "type": "official", "cite": "40 N.M. 190" }, { "type": "parallel", "cite": "57 P.2d 287" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "20 Ala.App. 204", "category": "reporters:state", "reporter": "Ala. App.", "case_ids": [ 1647722 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ala-app/20/0204-01" ] }, { "cite": "184 U.S. 540", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3626047 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/184/0540-01" ] }, { "cite": "289 S.W. 312", "category": "reporters:state_regional", "reporter": "S.W.", "pin_cites": [ { "page": "314" } ], "opinion_index": 0 }, { "cite": "217 Ky. 305", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 5780765 ], "opinion_index": 0, "case_paths": [ "/ky/217/0305-01" ] }, { "cite": "48 A.L.R. 434", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "210 N.W. 111", "category": "reporters:state_regional", "reporter": "N.W.", "pin_cites": [ { "page": "119" } ], "opinion_index": 0 }, { "cite": "190 Wis. 646", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8696382 ], "opinion_index": 0, "case_paths": [ "/wis/190/0646-01" ] }, { "cite": "7 U.S.C.A. \u00a7 1", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "230 U.S. 126", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3664492 ], "weight": 3, "pin_cites": [ { "page": "132" }, { "page": "1424" } ], "opinion_index": 0, "case_paths": [ "/us/230/0126-01" ] }, { "cite": "207 U.S. 463", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3640927 ], "weight": 3, "pin_cites": [ { "page": "501" }, { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/us/207/0463-01" ] }, { "cite": "203 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8294185 ], "weight": 3, "pin_cites": [ { "page": "528-530" }, { "page": "304, 305" } ], "opinion_index": 0, "case_paths": [ "/us/203/0514-01" ] }, { "cite": "55 A. 1109", "category": "reporters:state_regional", "reporter": "A.", "pin_cites": [ { "page": "1113" } ], "opinion_index": 0 }, { "cite": "63 L.R.A. 485", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "69 N.J.Law, 649", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 616977 ], "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/njl/69/0649-01" ] }, { "cite": "264 U.S. 286", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6140364 ], "weight": 3, "pin_cites": [ { "page": "290" }, { "page": "689" }, { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/us/264/0286-01" ] }, { "cite": "259 U.S. 44", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 423294 ], "weight": 6, "pin_cites": [ { "page": "71" }, { "page": "831" }, { "page": "459" }, { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/us/259/0044-01" ] }, { "cite": "50 A.L.R. 596", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "278 U. S. 235", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3906410 ], "weight": 4, "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/us/278/0235-01" ] }, { "cite": "277 U.S. 389", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3903210 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/277/0389-01" ] }, { "cite": "253 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 189363 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/253/0412-01" ] }, { "cite": "43 A.L.R. 590", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "278 S.W. 98", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "211 Ky. 677", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 4879447 ], "opinion_index": 0, "case_paths": [ "/ky/211/0677-01" ] }, { "cite": "184 U.S. 329", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3626159 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/184/0329-01" ] }, { "cite": "294 U.S. 550", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3924059 ], "weight": 4, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/us/294/0550-01" ] } ], "analysis": { "cardinality": 1130, "char_count": 23204, "ocr_confidence": 0.68, "pagerank": { "raw": 4.867922521386656e-07, "percentile": 0.932976980511219 }, "sha256": "266449e518debe150389bf29c891029e2cafda23e057c2f10a72997aa3b97396", "simhash": "1:ddaebcbcbc277452", "word_count": 3924 }, "last_updated": "2023-07-14T16:58:32.968106+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HUDSPETH, BICKLEY, BRICE, JJ., and LUIS E. ARMIJO, District Judge, concur." ], "parties": [ "SAFEWAY STORES, Inc., v. VIGIL et al., and three other cases." ], "opinions": [ { "text": "SADLER, Chief Justice.\nThis appeal is before us on rehearing. We reach the same result as announced by the opinion heretofore handed down. The result resting upon another ground of invalidity, however, than that advanced in the former opinion, said opinion is hereby withdrawn and the following substituted therefor:\nSafeway Stores, Inc., J. C. Penney Company, Montgomery Ward & Co., and S. H. Kress & Co. have separately sued to enjoin operation of Laws 1933, c. 73, and Laws 1934, Sp.Sess., c. 33, each of which acts requires a permit to engage in business as a retail dealer in merchandise, and imposes a tax, called an \u201coccupation and license tax,\u201d upon such business. The amount of the tax is measured by gross annual sales.\nDemurrers to the several complaints were overruled below and this appeal by the defendants, the state authority charged with collection of the tax, is from a final judgment permanently enjoining them.\nExplanation of how two similar legislative acts come thus to he challenged'lies in the fact that following the enactment of the 1933 measure a petition to refer same to a popular referendum was filed with the secretary of state. The emergency clause not being attached' to the act, the effect of the petition to refer, whose sufficiency the demurrers concede, was to prevent the act becoming effective, if sub^ ject to referendum, an assumption which the demurrers challenge. While this status continued, and prior to the gen-oral election at which the referred act, if referable, was subject to submission, the Special Session of the Eleventh Legislature, convening in Santa Fe on April 9, 1934, by Laws 1934, Sp.Sess., c. 33, purported to repeal the referred measure and, as plaintiffs charge, re-enacted the same without substantial change.\nOne question, present in each case, is decisive. Since the vice complained of involves a construction of the same language in each act, viz., the definition of \u201cretail dealer,\u201d as found in section 1 thereof, only \u2022the later act need be discussed and future references will be to it except where otherwise indicated. The question is whether in exempting from the tax those retail merchants who do not sell \u201cin small parcels, packages, bales, boxes or other containers,\u201d the act denies equal protection to the retailer who does thus sell.\nSection 1, subpar. A of the act defines a \u201cretail dealer\u201d in the following language, to wit:\n\u201c \u2018Retail Dealer\u2019 or \u2018Retail Dealers in Merchandise.\u2019 As used herein shall mean and include any person or persons, firm, association, partnership, stock company, company or corporation having a fixed and established place of business, dealing in merchandise by selling to the ultimate consumer for consumption or use and not for re-sale purposes in smaller quantities than that purchased, and who sells in small parcels, packages, bales, boxes or other containers of whatsoever kind and not in gross, except sales to Federal, State or County Authorities or Charitable Institutions.\u201d . ' \u2022\nThe tax is imposed by section 3 of the act (Laws 1934, Sp.Sess., c. 33), the language of the imposition and the first bracket of said section reading:\n\u201cMerchants. A license tax or occupation tax to be collected by the State Comptroller and distributed as hereinafter provided, shall be imposed each year upon the business or avocations mentioned in this Chapter, carried on by any person within the State of New Mexico.\n\u201cFirst. Retail dealers in merchandise other than liquors, oil, gas and other motor fuel, peddlers, itinerant vendors and dealers in new or used automobiles, whose gross annual sales do not exceed three thousand dollars ($3,000.00) shall pay a license tax of two dollars ($2.00) per annum.\u201d\nThe subclassification is continued to the eleventh bracket in numerical order, the flat tax laid increasing- in amount by-moderate progression from bracket to bracket, based on volume of safes, until the eleventh bracket is reached. This bracket embraces retail dealers whose sales exceed $400,000. They must pay the flat tax of $500 imposed upon retail dealers occupying the tenth bracket who have sales in excess of $300,000 and not more than $400,000, and, in addition, \u201cthe sum of twenty-five dollars ($25.00) per tnou-sand on all gross annual sales\u201d in excess of $400,000.\nThe plaintiffs argue with much' earnest-, ness that this case is controlled by the decision of our highest court in Stewart Dry Goods Co. v. Lewis, 294 U.S. 550, 55 S.Ct. 525, 526, 79 L.Ed. 1054, somewhat recently decided. The defendants with no less vigor say the tax in the case at bar is of a different sort from that condemned in the Stewart Case; that it is in no respect different from the imposition upheld by the same court in the earlier case of Clark v. Titusville, 184 U.S. 329, 22 S.Ct. 382, 46 L.Ed. 569; and that the majority opinion in the Stewart Case, having discussed and distinguished the Titusville Case and having failed expressly to overrule it, thereby indicated its continued approval of the' Titusville . holding that the tax there challenged was not a denial of equal protection.\nAnd, finally, the defendants say that, even if so much of the act as imposes the so-called surtax of $25 per thousand in the eleventh bracket should be held to fall within the interdiction of the Stewart Case, that, nevertheless, the remainder of the tax is plainly supported by the Titus-ville decision, and should be upheld.\nIn the Stewart Case, a Kentucky tax denominated in the act imposing it as' \u201can annual license tax for the opening, establishing, operating or maintaining of any store,\u201d and which was held to be a \u201cgross sales tax,\u201d was stricken down because denying equal protection of the law. The tax was laid upon a percentage basis as contradistinguished from the flat rate method of imposition employed in the enactments challeng\u00e9d in the case at bar and in the Titusville Case.\nPersuasive arguments support the respective views thus urged upon us. In opening its discussion of the Titusville Case, the majority in the Stewart decision observed: \u201cIt is important to note the grounds of attack.\u201d It is thus suggested, at least inferentially, that had other grounds been urged, they might have prevailed. The idea that the Titusville Case has been overruled by implication rests upon a view in percentage perspective of the occupation tax there considered. For when so viewed it is subject, in its operating characteristics, to practically every criticism said of the tax in the Stewart Case. Even a pure occupation tax, when reduced to rates per cent., and so viewed, is a \u201ctax upon the sales of merchants at rates varying per sale or per dollar with the amount of their respec-, tive gross sales,\u201d and \u201coperates to take as the tax a percentage of each dollar due or paid upon every sale,\u201d as said in the Stewart Case in criticism of the Kentucky tax. Thus considered, there seems little support for an assumption that the Titus-ville Case has any residue of life in it.\nBut the contrary idea denies the right to view the tax in percentage perspective, if it be indeed a true occupation tax. It asserts- the real and distinguishing factor between the Stewart and Titusville Cases to be this: In the Stewart Case the court dealt with what obviously and concededly - was a tax on gross sales, whereas in the Titusville Case the tax just as obviously was nothing more than an occupation tax. If an occupation tax, the thing taxed is not the sale, not the transaction, as is true of a sales tax, but a franchise, the privilege of doing business, of pursuing the occupation of retail dealer. When we look through and beyond the point of imposition, the grant of the privilege in exchange for the tax, we find the occupation tax, the property tax, and the gross sales tax each possessed of at least one common characteristic in that each may be made to reflect itself in the individual sale or transaction by reduction to rates per cent. But thus yielding themselves to mathematical manipulation makes of neither the property nor the occupation tax a sales tax. It is the method of imposing a tax of the latter kind employed in the Kentucky act which the Stewart Case indicts for inequality. And whatever the test which enabled our highest court to characterize as occupational- the tax considered in the Titusville Case, whether the recognition of a reasonable relation between the amount of the tax and the privilege to be enjoyed, or otherwise, the tax here challenged certainly as to all of it save the surtax is so similar to that tax as to be indistinguishable and therefore must meet the decisive test.\nThus reasons unfold themselves to support the challenged acts. We find it unnecessary to resolve the question presented by these conflicting views upon the ef'fect of the Stewart decision. It seems doubtful whether under either view imposition of the so-called surtax of the eleventh bracket could withstand the challenge of inequality laid against it under the authority of that decision. Likely, even the minority in ihe Stewart Case would find it difficult to sustain this portion of the tax. But we pass the question, as to which there is some difference of opinion, and proceed to a discussion of the decisive point heretofore mentioned.\nDoes the definition of \u201cretail dealer\u201d arbitrarily except a class of merchants from operation of the act? It is insisted that to impose the tax on merchants selling in \u201csmall parcels, packages, bales, boxes or other containers,\u201d etc., thereby exempting those who do not, creates a classification so whimsical, arbitrary, and capricious as to deny to those within the classification chosen the equal protection of the laws. And, next, that the inclusion of the language last quoted renders the act so indefinite and uncertain as to effect its invalidity.\nWe are free to confess doubt and confusion as to the purpose of this language. Down to the point of its use a very satisfactory, and we may add, clear, definition of \u201cretail dealer\u201d is disclosed. Omitting unnecessary matter and the objectionable language, the definition reads:\n\u201c 'Retail Dealer\u2019 * * * as used herein shall mean and include any person * * * having a fixed and established place of business, dealing in merchandise by selling to the ultimate consumer for consumption or use and not for re-sale purposes in smaller quantities than that purchased.\u201d\nThis definition suggests itself as full, complete, and all-embracing. We may well assume that all retail merchants fall within it. Then what is the purpose and effect of the \u201cand who sells\u201d clause appended? The obvious suggestion arises that its purpose is to limit application of the act to a smaller class or group than that embraced by the generality and broadness of the definition immediately preceding, in addition to those expressly exempted by the language imposing the tax in section 3, viz., dealers in liquor, etc.\nThis much seems certain, if we give literal meaning to the language employed. We admit it is difficult to conceive of a retailer who does not on occasion sell some articles of merchandise in \u201csmall parcels, packages, bales, boxes or other containers.\u201d But there may be such; conceivably can be. Retail dealers in farm machinery and implements, retail coal dealers, retail lumber dealers, retail furniture dealers, and perhaps others, some of them perhaps never, and others but infrequently, sell in small packages or parcels. And to the extent that any do, the occasion is so rare that it would be an easy transformation without material loss, to eliminate such sales altogether and escape subjection to the tax. It is quite obvious that such a merchant, under the plain and literal terms of the statute, is not to have the tax applied to him, because he is not within the definition of \u201cretail dealer\u201d employed.\nAnd so, giving the language used its natural and the only reasonable meaning to be- attached, we have one class of retail merchants subjected to an occupational license measured by gross annual sales because some of the sales contributing to make up the whole have been of goods in \u201csmall parcels, packages, bales, boxes,\u201d etc., and another class relieved of the tax by the mere circumstance, perhaps peculiar to its particular line of merchandise, that its retailers do not find it either necessary or practical to sell in packages, bales, boxes, or containers.\nCan such a measure withstand the challenge that as between the two classes the act denies equal protection of the laws to those within the class taxed? We think it cannot. The basis of classification marks no such difference in circumstance between the two classes as to warrant the imposition as to the one and excuse it as to the other. Stewart Dry Goods Co. v. Lewis, supra; City of Danville v. Quaker Maid, Inc, 211 Ky. 677, 278 S.W. 98, 43 A.L.R. 590, and annotation at page 592; Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989; Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 48 S.Ct. 553, 72 L.Ed. 927. -\nWhat then is the effect of this invalidity? Does it strike down the act as a whole? Or may we, by virtue of the saving clause contained in the act,' eliminate the language creating the exemption, employ what remains of the definition, and thus give effect to the act?\nThe saving clause is found as section 15 in both the 1933 and the 1934 acts. It provides in substance that the declared unconstitutionality of \u201cany part, or parts, section, sub-section, sentence, clause or phrase\u201d of the act shall not affect the remaining portions which, shall \u201cremain standing\u201d as if the act had been passed with the invalid portions eliminated, and further declares :\n\u201cIt is hereby declared as a legislative act that it [the Legislature] would have adopted this Act if such unconstitutional part or parts, * * * had not been included herein.\u201d\nWe think the appropriate function of such a provision and the ultimate effect to\nwhich it is entitled are so well stated by the Supreme Court of the United States in Williams v. Standard Oil Co., 278 U. S. 235, 49 S.Ct. 115, 117, 73 L.Ed. 287, 50 A.L.R. 596, that we quote from its opinion as follows:\n\u201cFinally, it is said that even if the price-fixing provisions be held invalid other provisions of the act should be upheld as separate and distinct. This contention is emphasized by a 'reference to section 12 of the act, which declares: \u2018That if any section or provision of this act shall be held to be invalid this shall not affect the validity of other sections or provisions hereof/\n\u201cIn Hill v. Wallace, 259 U.S. 44, 71, 66 L.Ed. 822, 831, 42 S.Ct. 453, 459, it is said that such a legislative declaration serves to assure the courts that separate sections or provisions of a partly invalid act may be properly sustained \u2018without hesitation or doubt as to whether they would have been adopted, even if the Legislature had been advised of the invalidity of part/ But the general rule is that the unobjectionable part of a statute cannot be held separable unless it appears that, \u2018standing alone, legal effect can be given to il and that the Legislature intended the pro-' vision to stand, in case others included in the act and held bad should fall/ The question is one of interpretation and of legislative intent, and the legislative declaration \u2018provides a rule .of construction which may sometimes aid in determining that intent. . But it is an aid merely; not an inexorable command.\u2019 Dorchy v. Kansas, 264 U.S. 286, 290, 68 L.Ed. 686, 689, 44 S.Ct. 323, 325.\n\u201cIn the absence of such a legislative dec laration, the presumption is that the Legislature intends an act to be effective as an entirety. This is well stated in Riccia v. Hoboken, 69 N.J.Law, 649, 662, 63 L.R.A. 485, 55 A. 1109, 1113, where the New Jersey Court of Errors and Appeals, in an opinion delivered by Judge Pitney (afterward a justice of this court), after setting forth the rule as above, said:\n\u201c \u2018In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resor.t to elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process.\u2019\n\u201cCompare Illinois C. R. Co. v. McKendree, 203 U.S. 514, 528-530, 51 L.Ed. 298, 304, 305, 27 S.Ct. 153; Employers\u2019 Liability Cases [Howard v. Illinois C. R. Co.], 207 U.S. 463, 501, 52 L.Ed. 297, 310, 28 S.Ct. 141; Butts v. Merchants\u2019 & M. Transp. Co., 230 U.S. 126, 132, et seq., 57 L.Ed. 1422, 1424, 33 S.Ct. 964; and see 1 Cooley, Const.Lim. (8th Ed.) 362, 363, and note.\n\u201cThe effect of the statutory declaration is to create in the place of the presumption just stated the opposite one of separability; that is to say, we begin, in the light of the declaration, with the presumption that the Legislature intended the act to be divisible, and this presumption must be overcome by considerations which make evident the inseparability of its provisions or the clear, probability that the invalid part being eliminated the Legislature would not have been satisfied with what remains.\u201d\nA comprehensive annotation on the effect of saving clauses similar to that contained in the act before us accompanies the report of the case just quoted from in 73 L.Ed. 287.\nThe limitation upon the power of the courts even with the aid of the saving clause is forcefully declared by the late Mr. Chief Justice Taft in Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 458, 66 L.Ed. 822, as follows:\n\u201cSection 11 of this act directs that \u2014 \u2018If any provision of this act or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the act and of the application of such provision to other persons and circumstances shall not be affected thereby.\u2019\n\u201cSection 4 [7 U.S.C.A. \u00a7 1 note], with its penalty to secure compliance with 'the regulations of Boards of Trade is so interwoven with those regulations that they cannot be separated. None of them can stand. Section 11 did not intend the court to dissect an unconstitutional measure and reframe a valid one out of it by inserting limitations it does not contain. This is legislative work beyond the power and function of the court.\u201d\nState ex rel. Hickey v. Levitan, 190 Wis. 646, 210 N.W. 111, 119, 48 A.L.R. 434, presented the question now considered on analogous facts. The court said:\n\u201cThe definition of a wholesale produce dealer as contained in the statute being void, the entire act becomes invalid. Furthermore, the exemption of local groups, above referred to, is such an interdependent and vital provision of the definition of a wholesale produce dealer as to vitiate the entire act, and to persuade us that it is unconstitutional as a whole.\n\u201cWe are not unmindful of the provision of subsection (8) of section 99.32 of the Statutes, which provides that: \u2018the provisions of section 99.19 to 99.27, inclusive, * * * shall apply to the enforcement of this section and to all orders issued hereunder.\u2019\n\u201cSubsection (3) of section 99.27 of the Statutes provides: \u2018The Legislature intends that the provisions contained in sections 99.01 to 99.30, inclusive, shall be independent of each other and that the invalidity, for any reason, of any provision shall not affect the validity of any other provision.\u2019\n\u201cSuch a provision as is contained in subsection (3) of section 99.27 of the statutes must be given its intended effect wherever possible. However, the exemption as to local groups is a vital part of the statutory definition of a wholesale produce dealer.\u201d\nIn Felts v. Linton, 217 Ky. 305, 289 S.W. 312, 314, construing the effect of a similar saving clause, the court said:\n\u201cIt is argued, however, that if the Legislature had no right to exempt from the operation of this budget act those counties having the commission form of government, then section 32 of the act, which brings about that exemption, should be held unconstitutional and void, but that the rest of the act should be upheld, particularly in view of section 29 thereof, which provides in substance that if any section, provision, paragraph, or clause of the act shall be declared unconstitutional, such invalidity shall not affect any of the remaining provisions of the' act; it being the intention of the Legislature to enact each clause, paragraph, provision, and section of the act separately. The fallacy in this position, however lies in the assumption that it is section 32 of the act which is invalid, whereas that section is as valid as any other section of that act. It is its presence in the act which renders the act as a whole invalid.\u201d\nThe \u201cand who sells\u201d clause limiting application of the act to those selling in small packages or parcels and thereby operating to exempt those who do not is an inseparable and interdependent part of'the definition of \u201cretail dealer.\u201d For us to strike out this clause would be to accomplish a result which the Legislature painstakingly sought to avoid. Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct.\n431, 46 L.Ed. 679. Indeed, the clause is not in itself invalid. It is merely that its presence renders the definition of \u201cretail dealer\u201d as a whole void. Felts v. Linton, supra. Of course, if the definition of \u201cretail dealer\u201d goes out, the whole act fails. There is nothing left upon which it can operate.\nIf the \u201cand who sells\u201d clause carries the meaning we have attributed to it, which is its literal and only sensible meaning, it creates an arbitrary and capricious classification and is bad as denying equal protection of the laws. If it has not this meaning, if it was not designed to limit application of the act to a group otherwise embraced in the generality of so much of the definition as precedes its use, then we confess utter inability to determine its purpose. It either has the purpose we give it, or it is void for uncertainty. State v. Levitan, supra; State v. Skinner, 20 Ala.App. 204, 101 So. 327.\n\u201cWhen the language of an act appears on its face to have a meaning, but it is impossible to give it any precise or intelligible application in the circumstances under which it was intended to operate, it is simply void.\u201d 26 Am.& Eng. Encyc. 656.\nWe declare both acts invalid in their entirety. From this it follows the action of the trial court in permanently enjoining their enforcement was proper. Its judgment is therefore affirmed, thus adhering to the result we announced originally.\nIt is so ordered.\nHUDSPETH, BICKLEY, BRICE, JJ., and LUIS E. ARMIJO, District Judge, concur.", "type": "majority", "author": "SADLER, Chief Justice." } ], "attorneys": [ "Frank H. Patton, Atty. Gen., and Hanna & Brophy, of Albuquerque (Hanna & Wilson and William A. Brophy, all of Albuquerque, of counsel), for appellants.", "W. A. Keleher and Theo. E. Jones, both of Albuquerque, for appellee Safeway Stores, Inc. ' <", "Gwinn & Pell, of New York City, and Mechem & Hannett, of Albuquerque, for appellee J. C. Penney Co.", "Botts & Botts, of Albuquerque, for appellee Montgomery Ward & Co.", "Mechem & Hannett, of Albuquerque, for appellee S. H. Kress & Co." ], "corrections": "", "head_matter": "57 P.(2d) 287\nSAFEWAY STORES, Inc., v. VIGIL et al., and three other cases.\nNo. 4085.\nSupreme Court of New Mexico.\nApril 20, 1936.\nFrank H. Patton, Atty. Gen., and Hanna & Brophy, of Albuquerque (Hanna & Wilson and William A. Brophy, all of Albuquerque, of counsel), for appellants.\nW. A. Keleher and Theo. E. Jones, both of Albuquerque, for appellee Safeway Stores, Inc. ' <\nGwinn & Pell, of New York City, and Mechem & Hannett, of Albuquerque, for appellee J. C. Penney Co.\nBotts & Botts, of Albuquerque, for appellee Montgomery Ward & Co.\nMechem & Hannett, of Albuquerque, for appellee S. H. Kress & Co." }, "file_name": "0190-01", "first_page_order": 214, "last_page_order": 223 }