{ "id": 2776087, "name": "STATE of New Mexico, ex rel. John D. MURPHY, District Attorney, Second Judicial District, Appellee, v. Robert MORLEY, d/b/a San Jose Drive-In Theater, Appellant", "name_abbreviation": "State ex rel. Murphy v. Morley", "decision_date": "1957-10-17", "docket_number": "No. 6222", "first_page": "267", "last_page": "274", "citations": [ { "type": "official", "cite": "63 N.M. 267" }, { "type": "parallel", "cite": "317 P.2d 317" } ], "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": "245 F. 316", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3970475 ], "opinion_index": 0, "case_paths": [ "/f/245/0316-01" ] }, { "cite": "227 P.2d 14", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "36 Cal.2d 671", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4409077 ], "opinion_index": 0, "case_paths": [ "/cal-2d/36/0671-01" ] }, { "cite": "100 L.Ed. 770", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "76 S.Ct. 117", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "350 U.S. 870", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12058114, 12058275, 12058036, 12058190 ], "opinion_index": 0, "case_paths": [ "/us/350/0870-02", "/us/350/0870-04", "/us/350/0870-01", "/us/350/0870-03" ] }, { "cite": "177 Kan. 728", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 22784 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/kan/177/0728-01" ] }, { "cite": "113 N.E.2d 502", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "305 N.Y. 336", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2229647 ], "opinion_index": 0, "case_paths": [ "/ny/305/0336-01" ] }, { "cite": "98 L.Ed. 329", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "346 U.S. 587", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6931790 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/346/0587-01" ] }, { "cite": "96 L.Ed. 1359", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "72 S.Ct. 1002", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 11341724 ], "opinion_index": 0, "case_paths": [ "/us/343/0790-01" ] }, { "cite": "343 U.S. 960", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11371569 ], "opinion_index": 0, "case_paths": [ "/us/343/0960-01" ] }, { "cite": "96 L.Ed. 1098", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "343 U.S. 495", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11340482 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/343/0495-01" ] }, { "cite": "283 U.S. 697", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 434240 ], "weight": 3, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/us/283/0697-01" ] }, { "cite": "12 P. 879", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "64 Nev. 138", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 8555288 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nev/64/0138-01" ] }, { "cite": "20 L.R.A.,N.S., 239", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "99 P. 338", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "14 N.M. 579", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 204488 ], "opinion_index": 0, "case_paths": [ "/nm/14/0579-01" ] }, { "cite": "70 Am.St.Rep. 489", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "53 N.E. 525", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "158 N.Y. 526", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 44105 ], "opinion_index": 0, "case_paths": [ "/ny/158/0526-01" ] }, { "cite": "193 P. 264", "category": "reporters:state_regional", "reporter": "P.", "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "49 Cal.App. 239", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2060454 ], "opinion_index": 0, "case_paths": [ "/cal-app/49/0239-01" ] }, { "cite": "144 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "165 N.Y.S.2d 42", "category": "reporters:state", "reporter": "N.Y.S.2d", "pin_cites": [ { "page": "43" } ], "opinion_index": 0 }, { "cite": "3 N.Y.2d 237", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2245938 ], "opinion_index": 0, "case_paths": [ "/ny-2d/3/0237-01" ] } ], "analysis": { "cardinality": 802, "char_count": 15063, "ocr_confidence": 0.711, "pagerank": { "raw": 2.038433511994825e-07, "percentile": 0.7474702193062222 }, "sha256": "754986ceb0143a4fd3dc34ff5cb60d15e78e0bd3984e0b160d1d3783c3867814", "simhash": "1:bbc7fed07267ac77", "word_count": 2460 }, "last_updated": "2023-07-14T17:04:51.657225+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McGHEE, COMPTON and KIKER, JJ-, concur.", "SADLER, J., dissenting." ], "parties": [ "STATE of New Mexico, ex rel. John D. MURPHY, District Attorney, Second Judicial District, Appellee, v. Robert MORLEY, d/b/a San Jose Drive-In Theater, Appellant." ], "opinions": [ { "text": "LUJAN, Chief Justice.\nThis action was prosecuted under Section 40-34-15, N.M.S.A.1953 Compilation, providing for the abatement of a nuisance connected with \u201clewdness\u201d, \u201cassignation\u201d or \u201cprostitution\u201d. The trial court found that the San Jose Drive-In Theater permitted the showing of indecent, obscene, and immoral pictures through use of the motion picture screen and advertising on the premises, and enjoined the management or \u201canyone acting in his place and stead\u201d from maintaining or operating the theater in such a manner as to permit lewdness.\nThe case is interesting in view of the United States Supreme Court decisions relating to prior restraint of motion pictures and especially so in view of a recent decision by the New. York Court of Appeals involving one of the pictures complained of in this case. In Excelsior Pictures Corp. v. Regents of University, 3 N.Y.2d 237, 165 N.Y.S.2d 42, 43, 144 N.E.2d 31, the court by a 4 to 3 decision held that the picture \u201cGarden of Eden\u201d was not obscene and stated:\n\u201cThere is nothing sexy or suggestive about it. * * * The nudists are shown as wholesome, happy people in family groups practicing their 'sincere if misguided theory that clothing, when climate does not require it, is deleterious to mental health. * * * \u2019 \u201d.\nAppellant charges several errors by the \u25a0court in asking for dismissal as violation of \u25a0due process of law under the First and Fourteenth Amendments to the Constitution \u25a0of the United States, admission of opinion \u25a0evidence, findings of fact and conclusion of law. In the view we take of the case it will be only necessary to consider this point two which is as follows:\n\u201cThat under Section 40-34-1 through 21 N.M.S.A.1953 if applied to this defendant his constitutional guaranty of freedom of the press is violated contrary to the terms of Article II, Section 17 of the New Mexico Constitution and under the First and/or Fourteenth Amendments to the Constitution of the United States of America.\u201d\nThe action is not provided for in the New Mexico statute on which it is based .as \u201clewdness\u201d used in that statute does not apply to the showing of motion pictures in a regular business establishment.\nThe statute, N.M.S.A., 1953 Compilation, .Section 40-34-15, provides as follows:\n\u201cFor the purposes of this act (40-34\u2014 15 to 40-34-19), place shall mean any vehicle, building, erection or place, or any part thereof, or the ground itself; person shall mean any individual, corporation, association, partnership, trustee, lessee, agent or assignee; and nuisance shall mean any place upon which lewdness, assignation or prostitution is conducted, permitted, continued or exists and the personal property and content used in any manner in conjunction therewith.\u201d\nThis law was enacted in 1921, Ch. 90, Laws of 1921, and entitled \u201cAn Act Defining a Nuisance and Providing for the Abatement Thereof by Injunctive Proceedings\u201d. It will be noticed that the title of the act is for the abatement of \u201ca\u201d nuis\u00e1nce, singular. The act then provides that \u201cnuisance\u201d shall mean any place upon which lewdness, assignation or prostitution, is conducted, permitted, continued or exists. Appellee contends that \u201clewdness\u201d is defined as including any indecent or obscene act and is to be construed as a separate offense from assignation or prostitution. This definition of lewdness is not found in the act in question, but is given under chapter 69, Laws of 1921, entitled \u201cAn Act for the Repression of Prostitution.\u201d The compiler, correctly we think, combined the two acts under Article 34 and included under the general subject of Criminal Offenses. . .\nThe appellee contends that byinterpreting \u201clewdness\u201d as any indecent of obscene act, that the statutes in question provide for the abatement of any obscene or indetent act, and that such lewdness is covered whether or not connected with assignation or prostitution. As such it would provide for abatement of motion pictures and publication in the nature of pornographic literature. With this contention we cannot agree.\nThe words \u201clewdness\u201d, \u201cassignation\u201d or \u201cprostitution\u201d are used together throughout the two acts. The term \u201clewdness\u201d is a broader and more general term than \u201cassignation\u201d or \u201cprostitution\u201d. In People ex rel. Bradford v. Arcega, 49 Cal.App. 239, 193 P. 264, 266, the court said with regard to use of these terms:\n\u201c * * * Those terms bear a well-defined and well-understood meaning, and that a complaint charging in the general language of the act the nuisance at the suppression of which said act is directly aimed must of necessity be considered and construed, and may readily be understood to mean precisely what those terms were obviously intended to signify when they were inserted in the statute, viz. illicit sexual acts or conduct amounting to or involving lewdness. The latter word, it may be further added, has but one meaning in whatsoever connection it may be used, and it is more comprehensive than either the word \u2018prostitution\u2019 or the word \u2018assignation,\u2019 and may or may not include acts of prostitution and assignation\u201d.\nThere are several rules of statutory construction that aid in arriving at the meaning' of a statute. One of these is set forth in 50 Am.Jur. 244, \u00a7 249, as follows:\n\u201cGeneral and specific words in a statute which are associated together, and which are capable of an analogous \u25a0meaning, take color from each other, so that the general words are restricted to a sense analogous to the less general. Under this rule, general terms in a statute may be regarded as limited by subsequent more specific terms.\u201d\nSee In re Stryker, 1899, 158 N.Y. 526, 53 N.E. 525, 70 Am.St.Rep. 489, holding that in a statute giving claim preference to the wages of employees, operatives, and laborers, that the general and more comprehensive term \u201cEmployees\u201d is limited by the more specific words \u201coperatives\u201d and \u201cLaborers\u201d. The rule that general words following specific ones are limited by the specific, or ejusdem generis, we applied in the case of Territory v. Jones, 1908, 14 N.M. 579, 99 P. 338, 20 L.R.A.,N.S., 239. Whatever name is given to the rule the fact seems to be that where the words are analogous or can be analogous in meaning the general term is somewhat limited by the specific ones. Thus, in Orr Ditch & Water Co. v. Justice Court of Reno Tp., 1947, 64 Nev. 138, 178 P.2d 558, the court construed a statute providing for the fencing of shafts,, excavations and holes, and held that the general term \u201cexcavations\u201d was limited to an opening or cavity in the earth similar to \u201cshafts\u201d or \u201choles\u201d. Because of the association of the terms \u201clewdness\u201d, \u201cassignation\u201d or \u201cprostitution\u201d in the two acts of 1921, we are led to believe that the legislature intended \u201clewdness\u201d to be limited to acts in connection with \u201cassignation\u201d or \u201cprostitution\u201d.\nAnother reason for our determination that the statute is limited in effect to acts of lewdness in connection with assignation or prostitution is the rule that where two meanings are possible and one would make the statute void, the one is taken that would save the statute on the presumption that the legislature did not intend to legislate unconstitutionally. We said in-Territory ex rel. Wade v. Ashenfelter, 1887, 4 N.M., John, 85, 12 P. 879:\n\u201cWhere two constructions may be reasonably adopted, one of which will render an act wholly nugatory, and the other will make it effectual, the latter should be adopted.\u201d\nIn the case of Near v. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 51 S.Ct. 625, 626, 75 L.Ed. 1357, a state statute was in question which provided for injunction procedure in the name of the state to \u201cenjoin perpetually the persons committing or maintaining any such nuisance from further committing or maintaining it.\u201d The nuisance consisted among other things the publishing of \u201cobscene, lewd and lascivious\u201d matter. Laws Minn.1925, c. 285, \u00a7 1. The state court found the defendant guilty of acts constituting a \u201cnuisance\u201d under the statute and enjoined the defendants from \u201cany publication whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by law.\u201d The Supreme Court reversed on the ground that the statutory scheme constituted a prior restraint and an abridgment of the freedom of the press in violation of the First Amendment guarantees incorporated in the Fourteenth Amendment. The majority held that the statute amounted to \u201can effective censorship\u201d. It was noted that exceptions were made in exceptional cases for \u201cobscene\u201d publications.\nIn Joseph Burstyn, Inc., v. Wilson, 1952, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, the court held that protection given in the First and Fourteenth Amendments to the United States Constitution applied to motion picture film as well as the press. It is clear that in the Burstyn case a statute providing for refusal of a license for showing of motion pictures considered to be \u201csacrilegious\u201d is so vague and indefinite as to offend the due process of law clause of the Fourteenth Amendment. Authority to refuse a permit for showing film of such character as to be prejudicial to the best interests of the people is also unconstitutional for that reason (Gelling v. State of Texas, 1952, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359. In like manner statutes providing for censorship on the basis of being \u201cobscene\u201d, \u201cimmoral\u201d, or would \u201ctend to corrupt morals\u201d have been tossed out (Superior Films, Inc., v. Department of Education, 1954, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329; Commercial Pictures Corp. v. Board of Regents, 1953, 305 N.Y. 336, 113 N.E.2d 502; Holmby Productions v. Vaughn, 177 Kan. 728, 282 P.2d 412; Id., 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770; see 17 University of Pittsburgh Law Review 637; 20 Law & Contemporary Problems 648).\nOn the basis of the Near v. State of Minnesota ex rel. Olson case, the injunction provided in the New Mexico statute in question if applied to motion pictures would be in the nature of censorship and prior restraint. In addition the term \u201clewdness\u201d if dissociated from \u201cassignation or prostitution\u201d would be too vague and indefinite to comply with the due process of law requirements of the Fourteenth Amendment as set forth in the above cases.\nAn additional reason why we are convinced that the term \u201clewdness\u201d involved in the statute in question does not include acts not connected with assignation or prostitution is-the apparent source of the act itself. A number of states have enacted laws preventing prostitution and these are usually referred'to \u00e1s \u201cred light abatement laws\u201d. The California Act, No. 3634,- enacted in 1913 -,(spe Henning\u2019s General Laws of California, Voh 5.) West\u2019s Ann.Cal.Pen.Code, \u00a7 11225 e-t seq^'is an example. The act defines, \u201cperson\u2019-in section one as follows; :\n\u201cThe term \u2018person\u2019 as used in this act shall be deemed and held to mean and include individuals, corporations, associations, partnerships, trustees, lessees, agents and assignees\u201d. \u00a7 1\n\u201cPerson\u201d is defined in our act as follows:\n\u201c * * * person shall mean any individual, corporation, association, partnership, trustee, lessee, agent or assignee, * * * \u201d\nSimilarly, \u201cnuisance\u201d is defined under the California act as \u201cevery building or place used for the purpose of lewdness, assignation or prostitution\u201d. \u00a7 2. An action for abatement of the building or place as a nuisance is also provided. In reading the \u201cRed light abatement laws\u201d for suppression of prostitution and comparing those provisions with chapter 69, Laws of 1921 and chapter 90, Laws of 1921, it is impossible to escape the conviction that the New Mexico statute providing for injunction and abatement of places of \u201clewdness, assignation or prostitution\u201d were intended to supplement each other and constitute laws for the suppression of prostitution. In other words, chapter 90, Laws of 1921, was intended as \u201cRed light abatement laws\u201d similar to those of California and other states.\nWe are not convinced by appellee\u2019s statement that general equity powers included an injunction against nuisances to protect the public morals. He did not bring his-action .under that power.- The statute in. question provided for the injunction, abatement of the nuisance, and forfeiture of premises on proof that \u201clewdness, assignation or prostitution\u201d existed. The statute under which the complaint was drawn is criminal in nature and the complaint is an action in the nature of a criminal proceeding. See Board of Supervisors v. Simpson, 36 Cal.2d 671, 227 P.2d 14; Katz v. Commissioner of Immigration, 9 Cir., 245 F. 316. The action under general equity powers for protection of public morals is a civil action. Defendant was entitled to have clearly manifested to him that an action under the general equity powers was intended rather than an action of furtherance of suppression of prostitution under the penal statute.\nIt follows from all of the foregoing that the judgment of the district court is erroneous, and should be reversed, and the cause remanded, with directions to dissolve the injunction heretofore issued in the case, and to dismiss the complaint.\nIt is so ordered.\nMcGHEE, COMPTON and KIKER, JJ-, concur.\nSADLER, J., dissenting.", "type": "majority", "author": "LUJAN, Chief Justice." }, { "text": "SADLER, Justice\n(dissenting).\nDistrict Court Rule No. 52(b) (7) provides :\n\u201cThe decision shall be contained in a single document; provided, that an amended or supplemental decision may be filed in the cause prior to entry of judgment; and provided further, that findings or conclusions not embraced in the single document herein ordered, even though appearing elsewhere in the record, will be disregarded; but where the ends of justice require the cmise may be remanded to the District Court for the making and filing of proper findings of fact and conclusions of law.\" (Emphasis supplied.)\nThe findings in this case are adopted in the following language by the court:\n\u201cThe Court adopts as its own the Plaintiff\u2019s Requested Findings of Fact and Conclusions of Law and all Requested Findings of Fact and Conclusions of Law of the defendant inconsistent therewith are hereby denied.\u201d\nThe Order appealed from recites:\n\u201cThat the Court adopts as its own the Plaintiff\u2019s Requested Findings of Fact and Conclusions of Law filed in this cause and which are hereby made a part of this Order as though set forth fully herein, and Defendant\u2019s Findings of Fact and Conclusions of Law not inconsistent therewith.\u201d\nNeither of said orders is a compliance with the quoted rule, set out above. I find nothing in this record so much as suggesting that the ends of justice require a remanding of the cause to the district court for the purpose of \u201cthe making and filing of proper findings of fact and conclusions of law.\u201d I would affirm.\nAccordingly, I dissent.", "type": "dissent", "author": "SADLER, Justice" } ], "attorneys": [ "Edward P. Chase, Craig Morton, Jr., Albuquerque, for appellant.", "Fred M. Standiey, Atty. Gen., Howard M. Rosenthal, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "317 P.2d 317\nSTATE of New Mexico, ex rel. John D. MURPHY, District Attorney, Second Judicial District, Appellee, v. Robert MORLEY, d/b/a San Jose Drive-In Theater, Appellant.\nNo. 6222.\nSupreme Court of New Mexico.\nOct. 17, 1957.\nEdward P. Chase, Craig Morton, Jr., Albuquerque, for appellant.\nFred M. Standiey, Atty. Gen., Howard M. Rosenthal, Asst. Atty. Gen., for appellee." }, "file_name": "0267-01", "first_page_order": 299, "last_page_order": 306 }