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J., anu SISK, J\u201e concur." ], "parties": [ "STATE of New Mexico ex rel., James A. MALONEY, Attorney General, Plaintiff-Appellant, v. David R. SIERRA (Substituted for L. A. McCulloch, Jr.), Director, Department of Alcoholic Beverage Control, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nMcKENNA, Justice.\nThe Attorney General filed a declaratory judgment action under our \u00a7\u00a7 22-6-1 to 22-6-3, N.M.S.A.1953, against the Director of the Department of Alcoholic Beverage Control. He sought a ruling (1) that ch. 280, Laws 1969, signed by the Governor on April 7, 1969 (\u00a7\u00a7 46-10-14.1, 46-10-14.5, N.M.S.A.1953 [1969 Supp.]), is unconstitutional ; (2) that ch. 216, Laws 1969, signed by the Governor on April 3, 1969, not codified in our statutes, is the controlling statute and that it permits the sale and consumption of alcoholic liquors by the drink on licensed premises of dispensers on Sundays between the hours of 7:00 a. m. until midnight, and (3) that the defendant Director be enjoined from enforcing ch. 280, supra.\nThe Director answered praying that the district court declare ch. 280 constitutional, that its enactment repealed ch. 216, and in the event ch. 216 is in effect, it does not permit the sale by drink during the Sunday hours but only the service and consumption thereof in accordance with proposed regulation No. 21 of the Director. This proposed regulation generally dealt with the serving of alcoholic beverages on Sundays in counties not subject to the county option provision of ch. 280, provided such beverages are \u201cpre-sold or granted without cost\u201d on a preceding legal day.\nThe Intervenors maintain public horse-race tracks in the state and are the owners of liquor licenses. They opposed the position of the Attorney General and claimed that \u00a7 2, ch. 280, is constitutional and severable from any unconstitutional portions of ch. 280 and that \u00a7 2 permitted them to sell, serve or permit the consumption by the drink on their licensed premises on Sundays during racing season between the hours of 12:00 noon and 11:00 p. m.\nThe defendant Director filed a counterclaim for a declaratory judgment, asking for a construction of \u00a7 7(C), ch. 197, Laws 1969 (\u00a7 46-2-14(C), N.M.S.A.1953 [1969 Supp.]):\n\u201cTo be effective, any regulation issued by the director shall be reviewed by the attorney general prior to being filed as required by law and the fact of his review shall be indicated thereon.\u201d\nIn his counterclaim the Director said that he submitted his regulations 21, 22 and 25 to the Attorney General who rejected them. He claimed that the Attorney General had no power under \u00a7 7 of the Act, supra, to reject his proposed regulations, and that a rejection did not affect their validity or enforceability; but if the Attorney General had power to reject his proposed regulations, the action rejecting the three particular regulations was unlawful, arbitrary, capricious and unreasonable. The Attorney General replied that his rejection of the regulations was valid, and denied any unlawful exercise of his authority.\nThe issues were submitted to the court on stipulated exhibits. Before proceeding any further, we quote in part the liquor acts involved:\nChapter 216, Laws of 1969, First Session of Twenty-Ninth Legislature, sighed April 3, 1969, not codified.\n\u201cAN ACT\nRELATING TO ALCOHOLIC LIQUORS; AND AMENDING SECTION 46-10-14.1 NMSA 1953 (BEING LAWS 1959, CHAPTER 303, SECTION 1) TO PROVIDE FOR THE SERVING OF LIQUOR ON SUNDAY BY DISPENSERS.\n\u201cBE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:\n\u201cSection 1. Section 46-10-14.1 NMSA 1953 (being Laws 1959, Chapter 303, Section 1) is amended to read:\n\u201c \u201846-10-14.1. PIOURS AND DAYS OF BUSINESS:\u2014\n\u201c \u2018A. The license of retailers of alcoholic liquors shall allow them to sell and deliver alcoholic liquors, and the licenses of dispensers of alcoholic liquors and club liquor licensees-shall allow them to sell, serve, deliver and permit the consumption of alcoholic liquors on their licensed premises on Mondays from 7:00 a. m. until midnight, on other weekdays from after midnight of the previous day until 2:00 a. m., then from 7:00 a. m. until midnight, and on Sundays only after midnight of the previous day until 2:00 a. m. The licenses of dispensers of alcoholic liquors shall allow them to serve and permit the consumption of alcoholic liquors on their licensed premises on Sundays from 7:00 a. m. until midnight.\n\u201c \u2018B. It is unlawful for any licensed retailer of alcoholic liquors to sell or deliver alcoholic liquors, or for any licensed dispenser or club to sell, deliver, serve or permit the consumption of alcoholic liquors on their licensed premises during hours other than those prescribed by this section.\u2019 \u201d\nChapter 280, Laws of 1969, First Session of Twenty-Ninth Legislature, signed April 7, 1969 \u00a7\u00a7 46-10-14.1, 46-10-14.5, N.M.S.A.1953 (1969 Supp.).\n\u201cAN ACT\nRELATING TO ALCOHOLIC LIQUORS ; PROVIDING FOR COUNTYWIDE LOCAL OPTION FOR SUNDAY SALES IN CERTAIN COUNTIES; PROVIDING FOR SUNDAY SALES AT CERTAIN RACETRACKS; REPEALING SECTION 46-10-14.1 NMSA 1953 (BEING LAWS 1959, CHAPTER 303, SECTION 1); ENACTING A NEW SECTION 46-10-14.1 NMSA 1953.\n\u201cBE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:\n\u201cSection 1. Section 46-10-14.1 NMSA 1953 (being Laws 1959, Chapter 303, Section 1) is repealed and a new Section 46-10-14.1 NMSA 1953 is enacted to read:\n\u201c \u201846-10-14.1. HOURS AND DAYS OF BUSINESS.\u2014\n\u201c \u2018A. Alcoholic liquors shall he sold, served, delivered or consumed on licensed premises only during the following hours and days specified:\n\u201c'(1) on Mondays from 7:00 a. m. until midnight;\n\u201c \u2018(2) on other weekdays from after midnight of the previous day until 2:00 a. m., then from 7:00 a. m. until midnight ; .and\n\u201c \u2018(3) on Sundays only after midnight \u25a0of the previous day until 2:00 a. m. except as provided in Subsection B of this \u25a0section.\n\u201c \u2018B. Alcoholic liquors by the drink may be sold, served and consumed on licensed premises where the licensee holds \u25a0a dispenser\u2019s license, on Sundays from the hours of 12:00 noon to 11:00 p. m., \u25a0hereinafter called \u201cSunday sales.\u201d\n\u201c \u2018C. The provisions of Subsection B .are not self-executing but shall become \u25a0effective as follows:\n\u201c\u2018(1) the county commissioners of \u25a0each county having a population over one hundred fifty thousand at the last official federal decennial census and in each county of the first class having more than twenty-seven million dollars ($27,\u2014 \u25a0000,000) in assessed valuation and having a population of not more than sixteen thousand [16,000-] and not less than fourteen thousand [14,000] persons according to the 1960 federal decennial census, and in each county of the first class having more than twenty-one million dollars ($21,000,000), but less than twenty-five million dollars ($25,000,000) in assessed valuation and having a population of not more than eight thousand (8,000) and not less than seven thousand (7,000) persons .according to the 1960 federal decennial census, shall adopt a resolution submitting to the voters of the county the question of permitting Sunday sales within the county;\n\u201c\u2018(2) the question shall be voted upon by the voters of the county at the next \u2022succeeding regular or special county-wide \u25a0election, excepting that the question shall not be put to the voters at the election to select delegates to the state constitutional convention, or the election to approve a new constitution;\n\u201c \u2018(3) if a majority of all the voters of the county voting on the question of Sunday sales vote for Sunday sales, Sunday sales shall be legal within the exterior boundaries of that county. If a majority of voters of the county voting on the question do not approve Sunday sales, the question shall not again be submitted by the county commissioners until the expiration of a period of four years from the date of the election.\n\u201c \u2018D. Dispenser, retail and club licensees shall close their places of business during voting hours on the days of the primary election, general election, elections for officers of a municipality and any other election as prescribed by the rules and regulations of the chief of the division of liquor control. Dispenser, retail and club licensees shall also close places of business from 2:00 a. m. on Christmas Day until 7:00 a. m. on the day after Christmas.\u2019\nSection 2. SUNDAY SALES AT RACETRACKS \u2014 Notwithstanding other provisions of the Liquor Control Act or Section 46-10-14.1 NMSA 1953, or the outcome of any election, it is lawful for the holder of a dispenser\u2019s license whose licensed premises are located on a public horse-race track, licensed by the state racing commission, to sell, serve or permit the consumption of alcoholic liquors by the drink on Sunday during the racing season between the hours of 12:00 noon and 11:00 p. m.\u201d\nThe district court determined that an actual controversy existed between the parties and that the public interest required a settlement of the controversy. It found that only three counties, Bernalillo, Lincoln and Taos, qualified to conduct a local option election under ch. 280, to decide whether Sunday sales would be permitted. It found Section 1 of ch. 280, supra, unconstitutional. The specific finding was:\n\u201c12. That Section 1, Chapter 280, Laws of 1969, violates Article IV, Section 24, of the New Mexico Constitution. The classification of counties made therein is not based on any substantial distinctions which make the three counties to whom it applies so different from any of the other counties in the state as to require different legislation with respect to them. In addition, the characteristics which form the basis of the classification, to-wit, population and amount of assessed valuation in said counties, are not germane to the sale of alcoholic liquors on Sunday.\u201d\nAs to Chapter 216, the court found:\n\u201c16. That Subsection A of Subsection 1, Chapter 216, Laws of 1969, in enacting the provisions for the dispensing of alcoholic liquor on Sundays, omits the word \u2018sell\u2019 and uses the following language:\n\u2018The licenses of the dispensers of alcoholic liquors shall allow them to serve and permit the consumption of alcoholic liquors on their licensed premises on Sundays from 7:00 a. m. until midnight(Emphasis by district court.) \u201c17. That the legislature knowingly\nand intentionally omitted the word \u2018sell\u2019 from that portion of the act dealing with the dispensing of alcoholic liquor on Sundays by dispensers.\n\u201c18. That no ambiguity is created by the omission of the word \u2018sell\u2019 from the sentence of Subsection A of Section 1 of Chapter 216, Laws of 1969, dealing with dispensing of alcoholic liquors on Sunday.\n\u201c19. That the word \u2018serve\u2019 in its ordinary and commonly understood meaning does not also include permission to \u2018sell.\u2019 \u201d\nAs to the Intervenors, the court determined that Section 2 of ch. 280, supra, was constitutional as containing a reasonable classification and a reasonable exercise of legislative power, and that Section 2 was severable from the remaining portions of ch. 280.\nAs to the counterclaim, the judgment was that the Attorney General has power \u201cto review and pass upon regulations issued\u201d by the defendant Director.\nOnly the Attorney General filed an appeal. He attacks the court\u2019s judgment in one respect only, which was that ch. 216, supra, does not permit the sale of alcoholic liquors by the drink on the licensed premises of dispensers on Sundays from 7:00 a. m. until midnight. The Director\u2019s answer brief, under Point II, contests the court\u2019s judgment on the counterclaim but no appeal or cross-appeal was filed by the Director as required by our Rules 5 and 7 (2) (\u00a7 21-2-1(5), (7) (2), N.M.S.A.1953). Our Rule 17(2) (\u00a7 21-2-1(17) (2), N.M.S.A. 1953) is not applicable. See Frederick v. Younger Van Lines, 74 N.M. 320, 393 P.2d 438 (1964). Accordingly, the court\u2019s judgment on the counterclaim is final.\nFurthermore, no one contests the judgment of the court in favor of the Intervenors, and its judgment declaring Section 2, ch. 280, supra, as severable and constitutional, is also final.\nBefore we proceed to the \u201cserve but not sell\u201d question, we have sensed some concern in our Court as to whether the main suit presented proper subject-matter for declaratory judgment relief. While \u00a7 22-6-3, N.M.S.A.1953, provides that:\n\u201cFor the purpose of this act, the state of New Mexico, or any official thereof, may be sued and declaratory judgment entered when the rights, status or other legal relations of the parties call for a construction of the Constitution of the state of New Mexico, or any statute thereof.\u201d\nthere must be an \u201cactual controversy\u201d and an \u201cinterested party\u201d petitioning for judgment. \u00a7 22-6-1, N.M.S.A.1953. Apparently, the concern is occasioned by the absence of a licensed dispenser as a party.\nIn State ex rel. Overton v. New Mexico State Tax Comm., 81 N.M. 28, 462 P.2d 613 (1970), Overton, a subordinate county official, received an instruction from his superior, the State Tax Commission, to allow the soldier\u2019s exemption against assessed valuation pursuant to an amendment of the basic statute. The county official asked the district court to declare the amendment unconstitutional, stating that a controversy existed between him and the State Tax Commission, which was about to force him to wrongfully apply the exemption, and to prohibit his granting of the exemption to those entitled to it. We held that the county assessor was a subordinate officer subject to direction; that the responsibility for official action was with his superior and, absent \u201ca personal stake\u201d in the outcome of the controversy, he had no standing to sue and no justiciable controversy was presented under \u00a7 22-6-1, supra. The nub of the decision is expressed at 462 P.2d 616:\n\u201cThe Assessor has no personal stake in the matter. He is under the direction of the State Tax Commission, a superior office. \u00a7 72-6-12, N.M.S.A. 1953 Comp. The Assessor has no duty to protect taxpayers or veterans against wrongful discrimination. * * * \u201d (Emphasis ours.)\nOur situation is much different. We have here an administrative stalemate between two superior officers detrimental to public interest. The attorney general is charged by statute with the duty of prosecuting in court any action when in his judgment the interest of the State requires such action. \u00a7 4-3-2(B), N.M.S.A.1953 (1969 Supp.) He also must represent the State in any appeal. \u00a7 4-3-2(A), N.M.S.A. 1953 (1969 Supp.). The defendant is charged with the duty of administering and enforcing the liquor laws. Both parties are superior officers in separate realms and each in his own area is charged with ultimate responsibility for official action. Because of their duties each is an \u201cinterested party.\u201d Each in the area of public law has a personal stake involved, a required duty and ultimate responsibility, and the \u201crights, status or other legal relations of the parties\u201d (\u00a7 22-6-3, N.M.S.A. 1953) not only call for, but the interests of the State and public require that we break the deadlock. In Overton, supra, at 618, we observed that a determination of the necessary personal stake \u201cdepends as much on the issues involved as the parties plaintiff, * * * \u201d The element of personal stake, we thought, quoting from Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), was to assure \u201c[the] concrete adverseness which sharpens the presentation of issues * *\nThe issues before the district court were sharp and opposing. The Attorney General said all of ch. 280 was unconstitutional. The Director said no. The Attorney General construed ch. 216 to permit the sale of alcoholic beverages by the drink on Sundays. The Director rejected this interpretation. Presumably, a licensed dispenser would have taken the position of either the Attorney General or the Director. The deadlock presented is not brought into greater or lesser focus by the presence or absence of a licensed dispenser, nor are the statutory duties, responsibilities and relations of the officers involved intrinsically affected by his absence or presence. A real, actual, concrete controversy exists. Our decision will be productive and meaningful by terminating the controversy. Hence we are not departing from reality, or dispensing advice on assumed hypotheses to unconcerned parties. If all parties held the same viewpoint and merely sought confirmation from us, a different situation would be presented. See State ex rel. Miller v. State Board of Education, 56 Idaho 210, 52 P.2d 141, 143, 144 (1935).\nTo force the Director to first issue a citation for a violation of his interpretation of ch. 216 would shorten the purpose of the Declaratory Judgment Act and enshrine needless formalism. As Congressman Gilbert stated, at 69 Cong.Rec. 2030 (1928): \u201cUnder the present law you take a step in the dark and then turn on the light to see if you stepped into a hole. Under the declaratory judgment law you turn on the light and then take the step.\u201d We note the comment of Justice Sadler in Taos County Board of Education v. Sedillo, 44 N.M. 300, 309, 101 P.2d 1027, 1033 (1940):\n\u201cAs pointed out by Professor Borchard in his article in \u2018Current Legal Thought,\u2019 there has been a reluctance on the part of some of the courts to apply the new remedy. This results in greatly narrowing the field of its operation.\u201d\nProfessor Jaffe\u2019s final thought in his analysis of Standing to Secure Judicial Review: Private Actions, 75 Plarvard Law Review 255 (1961), at 305, is that:\n\u201cWe do not see the public-law function of the courts as simply the rather unfortunate byproduct \u2014 or if not unfortunate, at the most the byproduct \u2014 of conventional litigation. The jurisdictional criteria evolved by our great judges have been, and should continue to be, predominantly rules of restraint. But these rules seek to define what is justiciable; and it is my thesis that an issue otherwise justiciable under these rules is not ipso facto nonjusticiable because of the lack of a conventional plaintiff.\u201d\nTo force the Director to issue a citation first would require him to take the risk of proceeding in the face of the conflicting opinion of the Attorney General and place the Attorney General in the public dilemma of agreeing with the alleged violator. Such a situation is surely not in the public interest. This dispute has reached the point found necessary by the Supreme Court in Public Service Comm. of Utah v. Wycoff Co., 344 U.S. 237, 244, 73 S.Ct. 236, 240, 97 L.Ed. 291, 296 (1952), wherein the Supreme Court said:\n\u201cThe disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.\u201d Other states have seen it as we see it.\nIn McNichols v. City and County of Denver, 101 Colo. 316, 74 P.2d 99 (1937), the plaintiff was the City and County Auditor who had the duty under the law to protect public funds. He questioned the authority of the City and County of Denver to issue certain bonds and levy taxes for their payment. The purpose of the suit was to secure an \u201cadvance\u201d declaration as to the legality of the proposed action. In 74 P.2d, at 102, the court stated that the plaintiff, as auditor, \u201cbeing a person whose rights and legal relations are affected by the ordinance which authorizes the issuance of these bonds, properly instituted these proceedings.\u201d While the court there decided that the judgment would bind the unjoined taxpayers, we cannot say that here for the licensed dispensers, but a declaration by us would not be moot or of no appreciable import or value for it will end the stalemate between the Attorney General and the Liquor Director.\nIn State ex rel. Sullivan v. Price, 49 Ariz. 19, 63 P.2d 653, 108 A.L.R. 1156 (1937), the Attorney General sought a declaratory judgment as to the validity and constitutionality of a certain provision of the motor vehicle law. The. court, at 654, regarded it as a cause of action \u201cso that those whose duty it is under the law to enforce it may quickly know whether they should do so or not, or if' the law is defective it may be cured at the coming session of the Legislature.\u201d\nIn Wingate v. Flynn, 139 Misc. 779, 249 N.Y.S. 351, 354, aff\u2019d without opinion in 233 App.Div. 785, 250 N.Y.S. 917, 256 N.Y. 690, 177 N.E. 195, the court stated, at 249 N.Y.S. 354:\n\u201cFuture confusion and possible litigation will be avoided by a present determination of the question involved. Public officers should have the right to have their legal duties judicially determined. In this way only can the disastrous results of well-intentioned but illegal acts be avoided with certainty.\u201d\nEx parte County Board of Education of Montgomery County, Ky., 260 Ky. 246, 84 S.W.2d 59 (1935), presented a situation where the petitioner board members alleged that they were divided in their opinion as to certain questions and asked for a declaration. The questions were whether a prior judgment controlled future action and what was the proper construction of certain statutory sections, and were they constitutional. The court held there was a justiciable controversy.\nIn Dietz v. Zimmer, 231 Ky. 546, 21 S.W.2d 999 (1929), the plaintiff residents, taxpayers and electors of the City of Covington petitioned for a declaration that the defendants be declared disqualified as candidates and certain others be adjudged as entitled to take their place. No justiciable controversy was presented for the reason expressed at page 1000:\n\"They present no actual justiciable controversy with respect to any rights of theirs, nor have they any duties to perform respecting which the direction of the court is desired or required.\u201d\nOur case 'is quite to the contrary; the parties clearly have duties to perform concerning which a justiciable controversy exists and the direction of the district court was required to resolve the controversy.\nThe answer filed by the Director praying for opposite declaratory relief pinpointed the issues. In Progressive Party v. Flynn, 400 Ill. 102, 79 N.E.2d 516 (1948), the Party sued election officials to determine its right to participate in a primary and the defendants counterclaimed for a determination of the controversy. An actual controversy was found to exist:\n\u201cThe counterclaim filed by certain appellees asking for a declaration of rights on the same statute involved in appellant\u2019s application is an admission by them that an \u2018actual controversy\u2019 is involved as required * *\nTown of Ohio v. People, 264 App.Div. 220, 35 N.Y.S.2d 107 (1942), is a case where the plaintiff asked for a judgment declaring that a certain highway was not its responsibility to be kept open and repaired. The town officials were \u201cin a quandary\u201d as to its responsibility having received notification from the State Public Works that, unless repaired, state aid \u201cwill be withheld;\u201d' The defendants questioned that it was a proper case for declaratory judgment, stating a remedy existed under the statutes to determine the right to state aid. The court declared, at 108, that the suggested remedy was inadequate and decided that a declaratory judgment was both useful and appropriate since the town should now have an answer:\n\u201cThe objective of a declaratory judgment in our practice is to obtain relief from just such uncertainty or doubt. It aims to enable a party whose rights, privileges and powers are endangered, threatened or placed in uncertainty to invoke the aid of the court to obtain a declaration of his rights or legal relations.\u201d\nLanger v. State, 69 N.D. 129, 284 N.W. 238 (1939), was an action by the members of the State Budget Board and the defendants were members of various state boards and industrial undertakings carried on by the state. The question in controversy was whether the defendants were required under the statute to furnish a statement of estimated necessary expenditures. The plaintiff said reporting forms were supplied but the defendants had failed to use the forms and submit the information. The defendants said they were not required to do so. Was there a controversy which could be determined under the Declaratory Judgment Act, or was it a request for an advisory opinion or to determine an abstract question ?\nThe court decided that there was a controversy \u201cas to the respective rights and duties of the plaintiffs and the defendants under the law\u201d (284 N.W., at 246), and, further:\n\u201cThe reported cases bear ample evidence that public officers and boards frequently have resorted to an action for declaratory relief to obtain determination of a controversy with some other public officer or board, involving questions of official power or duty.\n\u201cIn his work on Declaratory Judgments, Professor Borchard says: \u2018Administrative boards and officials frequently sue each other for a declaration of their respective rights and duties. It is evident that such officials require only adjudication, not coercion, in order to establish and perform their statutory duties, and that the simplest procedure is the best. Hence, the common use of the declaration in such controversies.\u2019 Declaratory Judgments, Borchard, pp. 607, 609.\u201d\nThe suit was dismissed as to some of the defendants because as to them it was merely a request for advice on questions or points of law which may never arise.\nIn Recall Bennett Committee v. Bennett, 196 Or. 299, 249 P.2d 479 (1952), an election officer cross-complained for a declaration of his duty under the law as to the candidate Bennett. We quote from page 490:\n\u201cHe is reasonably in doubt as to how he should act. As a public officer he belongs to a class which is peculiarly entitled to judicial guidance, for, as said in Wingate v. Flynn, supra [139 Misc. 779, 249 N.Y.S. 351, 354], \u2018Public officers should have the right to have their legal duties judicially determined. In this way only can the disastrous results of well-intentioned but illegal acts be avoided with certainty.\u2019 As said in Cobb v. Harrington, supra, 144 Tex. 360, 190 S.W.2d 709, 713:\n\u201c '* * * the action for declaratory judgment \u201cis an instrumentality to be wielded in the interest of preventative justice and its scope should be kept wide and liberal, and should not be hedged about by technicalities.\u201d \u2019 \u201d\nThe Supreme Court of Oregon further observed that the assumption of jurisdiction by the trial court was not mandatory but discretionary and, at 491, \u201cwas entitled to consider the bearing of public interest upon the question of assumption of jurisdiction.\u201d In our case the trial court specifically found that it was in the public interest to settle the controversy.\nState ex rel. La Follette v. Dammann, 220 Wis. 17, 264 N.W. 627, 103 A.L.R. 1089 (1936), appears to be to the contrary and we decline to follow it as too narrow and unrealistic. There the Governor sought a declaration of his power to make interim appointments, which power the Secretary of State denied. The court thought this was merely a difference of opinion since the Governor had not made any appointments. \u2014 even though the Governor asserted that the Secretary of State\u2019s opinion prevented him from filling vacancies. The soundness of this decision has been criticized severely by Professor Borchard in his Declaratory Judgments (2d Ed., 1941), footnote 68, at page 45:\n\u201c * * * There was really no convincing reason why this case was held not justiciable, even in the absence of an actual appointment. The Governor claimed the power, the Secretary seriously denied it and vacancies existed to which the Governor wished to make prompt appointments. This situation is as ripe for adjudication as are dozens of other cases discussed in the chapter on administrative powers in which public officials contest their respective powers and duties.\u201d\nIn Harriett v. Lusk, 63 N.M. 383, 387, 320 P.2d 738, 741 (1958), we were convinced \u201cthat the construction of a statute can be attacked on both formal or substantive grounds by a party with standing to sue,\u201d citing Borchard, supra, at 772. We agree with Borchard, at 771, wherein he observes, with approval, that the \u201cparty deleteriously affected\u201d as well as \u201cthe attorney general on behalf of the public\u201d have been permitted to raise the questions of the constitutionality and construction of a statute. Under our statutes it is the duty of the attorney general to institute any proceedings \u201cin which the state may be a party or interested when, in his judgment, the interest of the state requires such action, * * *\u201d \u00a7 4_3_2(B), N.M.S.A.1953 [1969 Supp.]).\nWe have every reason to believe that our district courts, when exercising their discretion to entertain a request for declaratory relief, will scrutinize each request with utmost caution so as to not convert our courts into \u201cjudicial ponds\u201d to fish for legal advice. Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404, 409 (1949). See Allstate Insurance Co. v. Firemen\u2019s Insurance Co., 76 N.M. 430, 415 P.2d 553 (1966).\nFor the reasons stated, we decide that the district court did not err in entertaining jurisdiction of the dispute presented by the petition and the answer.\nWe can now proceed to the reason for this appeal. Was the district court correct in declaring that Sec. 1 of ch. 216, supra, does not permit the sale of alcoholic liquors by the drink on licensed premises of dispensers on Sundays from 7:00 a. m. until midnight ? In its findings, the court said that the word \u201cserve\u201d In its ordinary and commonly understood meaning does not include permission to \u201csell\u201d; that no ambiguity was created by the omission of the word \u201csell\u201d from the sentence of subsection A of Section 1, ch. 216, and that the legislature knowingly and Intentionally omitted the word \u201csell.\u201d\nThe district court is correct.\nVery recently, in Tafoya v. State Police Board, 81 N.M. 710, 472 P.2d 973 (1970), this Court stated that absent any clear intent expressed to the contrary, words are to have their ordinary and usual meaning. \u201cServe\u201d means \u201cto wait at table,\u201d \u201cto set out portions of food or drinks.\u201d Webster\u2019s Third New International Dictionary. While distinguishable for reasons not here material, the Supreme Court of Oregon decided that in its ordinarily accepted meaning, the word \u201cserve\u201d is limited and \u201csell\u201d is not included therein. City of Coos Bay v. Aerie No. 538, 179 Or. 83, 170 P.2d 389, 397 (1946).\nIf there be doubt, we are permitted to interpret, to arrive at the intention of the legislature, but rules or canons of construction are not to be invoked to arrive at a construction inconsistent with clear intent, as stated by \u00a7 1-2-2, N.M.S.A.1953:\n\u201cIn the construction of constitutional and statutory provisions, the following rules shall be observed unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the constitutional provision or statute.\u201d\nState v. Ortega, 77 N.M. 312, 422 P.2d 353 (1966); Montoya v. McManus, 68 N.M. 381, 388, 362 P.2d 771 (1961).\nEven if we assume doubt or ambiguity, it is evident that the legislature in its first sentence in subsection A of section 1 of ch. 216, supra, was aware of the word \u201csell\u201d: \u201c * * * [A]nd the licenses of dispensers of alcoholic liquors and club liquor licenses shall allow them to sell, serve, deliver and permit the consumption * * * on Sundays only after midnight of the previous day until 2:00 a. m.\u201d Then follows the sentence of concern, which eliminates the word \u201csell\u201d and allows serving on Sundays by the drink from 7:00 a. m. until midnight.\nWhen the legislature permitted a dispenser to sell by the drink on Sundays, it expressed its intention clearly in ch. 280, supra, in the title: \u201cSunday Sales\u201d; in subsection B of Section 1: \u201cAlcoholic liquors may be sold, served and consumed * * * on Sundays\u201d; in subsection C, referring to \u201cSunday sales,\u201d and in Section 2 permitting dispensers at public horse-race tracks \u201cto sell, serve or permit the consumption * * * by the drink on Sunday.\u201d Even though Section 1 of ch. 280 has been held unconstitutional by the district court, ch. 280 was passed by the same legislature and is in pari materia, Board of Com\u2019rs of Hamilton County v. State, 184 Ind. 418, 111 N.E. 417 (1916); City Transp. Co. v. Pharr, 186 Tenn. 217, 209 S.W.2d 15, 18 (1948): \u201cConceding the Act * * * to be invalid, it is important as showing legislative intent.\u201d See State v. Fidelity & Deposit Co. of Maryland, 36 N.M. 166, at 169, 9 P.2d 700 at 701 (1932), stating, \u201cThe two acts * * * are peculiarly in pari materia, having been passed at the same legislative session.\u201d State v. Clark, 80 N.M. 340, 342, 455 P.2d 844 (1969); 82 C.J.S. Statutes \u00a7 367, at 834: \u201cIn construing a particular statute, the court may consider other acts passed at the same session, although they are unconstitutional or were vetoed.\u201d\nThe Attorney General argues that the word \u201cserve\u201d has acquired a special meaning describing the functions of a tavern-keeper or inn-keeper in providing food or beverage in return for payment, citing support for this special meaning. He states that the legislature is presumed to have employed the word \u201cserve\u201d in that special meaning. He further argues that the word \u201csell\u201d has no reference whatever to the furnishing of liquor in individual portions, that is, by the drink, and that \u201csell\u201d refers only to the additional privilege granted a dispenser to \u201csell and deliver\u201d alcoholic beverages by the bottle or in packages. His conclusion is that the legislature banned dispensers from selling package goods on Sundays but that the dispensers have their added privilege of serving by the drink on Sundays, that is, serving or furnishing in return for payment.\nAt the outset, just as a matter of practical sense, we have difficulty in assimilating the suggestion that \u201cfurnishing in return for payment\u201d means \u201cserve\u201d but not \u201csell.\u201d Be that as it may, the net effect of the Attorney General\u2019s argument is that a dispenser does not \u201csell\u201d when he furnishes for payment alcoholic beverages by the drink for consumption on the premises. This is not what the court decided in People v. Dayton, 18 Mich.App. 313, 171 N.W.2d 57, 58 (1969):\n\u201c * * * George Behrens was not a member of the association known as VFW Post 6252, nor had he contributed to the fund from which the post financed the purchase of the liquor. Thus it cannot be said that he enjoyed rights of ownership in the liquor prior to its being served to him. The fact that he paid for the drinks after they were served to him leads one to the conclusion that the transaction was a sale within the meaning of the Liquor Control Act.\u201d\nFurthermore, our statutory definition of a dispenser does not support the sought distinction for it defines dispenser as any person \u201cselling, offering for sale or having in his possession with intent to sell, alcoholic liquors by the drink or in packages.\u201d \u00a7 46-1-1, N.M.S.A.1953. Thus a dispenser \u201csells\u201d by the drink, not just \u201cserves,\u201d and \u201csell\u201d is not limited to liquor in packaged\nWe cannot overlook .the omission of the word \u201csell\u201d from the act. We cannot attribute any special meaning to - \u201cserve\u201d where the entire statutory scheme for liquor control fails to disclose any support for such a special meaning. We cannot depart from giving ordinary words ordinary meaning where there is no evidence of legislative intent to do otherwise. Our analysis is buttressed by ch. 280, for when the legislature desired to permit sales by the drink on Sundays, it did not say only \u201cserve.\u201d It used both words, serve and sell.\nThe Director interprets ch. 216 so as to permit the serving on Sunday of alcoholic liquors if previously purchased. There are some obvious enforcement problems with the Director\u2019s interpretation but those problems do not make his interpretation so absurd or unreasonable as to require us to go in the direction urged by the Attorney General.\nOur conclusion is that the word \u201csell\u201d was purposely omitted from ch. 216 to prevent the sale by the drink on Sundays and the district court was right when it did not grant the Attorney General\u2019s prayer that ch. 216 \u201cpermits the sale and consumption\u201d of alcoholic liquors by the drink on the licensed premises of dispensers of alcoholic liquors on Sundays between 7:00 a. m. until midnight.\u201d\nLike it or not, the purpose of liquor control legislation is to regulate and restrain and not to promote. Application of Bethel Township Veterans Home Ass\u2019n, 180 Pa.Super. 159, 119 A.2d 613 (1956). Our conclusion does not offend that policy. That policy and any loosening of it, is the business of the legislature, not ours.\nThe judgment is affirmed. It is so ordered.\nCOMPTON, C. J., anu SISK, J\u201e concur.", "type": "majority", "author": "McKENNA, Justice." }, { "text": "WATSON, Justice\n(dissenting).\nI respectfully dissent.\nBefore we can proceed to review the action of the lower court we must assure ourselves that it had jurisdiction to act. The jurisdictional questions are: Can the Attorney General and the Director obtain a declaratory judgment on the question and related subjects from the District Court of Santa Fe County in this action? Can the intervenors? Since the question is jurisdictional it must be raised sua sponte and resolved before we can proceed. Taos County Board of Education v. Sedillo, 44 N.M. 300, 101 P.2d 1027 (1940).\nOur declaratory judgment statute, \u00a7 22-6-1, N.M.S.A., 1953 Comp., states: \u201cIn cases of actual controversy the court of record of the state of New Mexico shall have power * * * to declare rights and other legal relations of any interested party * * (Emphasis added.)\nHere the petition filed by the Attorney General states that, in plaintiff\u2019s opinion, ch. 280, N.M.S.L.1969, is unconstitutional, but that the defendant Director intends to enforce it, and that, in plaintiff\u2019s opinion, ch. 216, N.M.S.L.1969, permits dispensaries to sell alcoholic liquors by the drink on Sundays, but that the defendant may consider this chapter repealed or may interpret it as not permitting such sales. The petition further states that regulations consistent with plaintiff\u2019s interpretation have not been adopted by defendant and asks that the court declare in accordance with plaintiff\u2019s opinion and restrain and enjoin defendant from enforcing the provisions of ch. 280, supra, against any licensed dispenser in New Mexico. The Director answers the petitioner and asks the court to declare the law to be in accordance with his views. In addition, the Director filed a counterclaim asking the court to interpret ch. 197, \u00a7 7(C), N.M.S.L.1969, which requires a \u201creview\u201d by the Attorney General of the Director\u2019s regulations. Three racetrack corporations intervened, and by answer they asked that \u00a7 2 of ch. 280, supra, which permits the sale by the drink on Sundays from noon to 11:00 P.M. at racetracks during the racing season be declared constitutional.\nTwo questions are presented. First, are the original parties \u201cinterested\u201d so as to make this a \u201cjusticiable\u201d controversy? And second, is there a case or actual controversy before the court which would permit it to declare the rights of the racetrack corporations, although they did not allege that any of their rights were being threatened. On this subject we quote from Borchard, Declaratory Judgments at 33 (2d Ed.1941) :\n\u201cJusticiability is the necessary condition of judicial relief. It is that which the term \u2018case\u2019 or \u2018controversy\u2019 is designed to insure, and the Supreme Court has had frequent occasion to consider the matter. So have the courts of foreign countries. What, then, are the \u2018necessary features\u2019 of justiciability? While state courts occasionally assume legislative and executive functions which could not be imposed on federal courts, the power to determine contested rights is a traditional function of all judicial courts in the western world. Expediency and the relative danger of conflict with other departments of the government have induced a refusal to decide major political questions or review mere administrative findings. Expediency and a desire not to function in the abstract, but to decide only concrete contested issues conclusively affecting adversary parties in interest, have induced a refusal to render advisory opinions or decide moot cases. Actions or opinions are denominated \u2018advisory,\u2019 when there is an insufficient interest in the plaintiff or defendant to justify judicial determination, where the judgment sought would not constitute specific relief to a litigant or affect legal relations or where, by reason of inadequacy of parties defendant, the judgment could not be sufficiently conclusive.\u201d\nAnd at page 36:\n\u201cThe \u2018necessary features\u2019 of justiciability which afford the greatest difficulty in analysis are the requirements of \u2018interested\u2019 parties asserting \u2018adverse\u2019 claims. When has the plaintiff a sufficient \u2018interest\u2019 to warrant judicial protection? When are claims \u2018adverse\u2019 ?\n\u201cTo be \u2018interested,\u2019 some legal relation of the plaintiff must be capable of being affected by the decision; but besides that, the \u2018interest\u2019 must be \u2018substantial.\u2019 Courts differ in their views as to what is \u2018substantial,\u2019 a difference especially qotable in actions by taxpayers designed to determine the validity of public action under statute or administrative order. State courts, when they think the public issue important, are disposed to find a taxpayer\u2019s interest, however trifling, as adequate to sustain the justiciability of the action. Federal courts are more inclined to scrutinize carefully the nature of the interest of the plaintiff in the public issue presented, and to require that it be 'substantial\u2019 to the plaintiff personally. The factors giving \u2018substance\u2019 to an interest appear to be the importance of the legal relation, the value of the property, the immediacy of the interest to be affected by the decision. * * * \u201d (Emphasis added.)\nSee also 6A Moore\u2019s Federal Practice, ff 57.17 (2d Ed. 1966). As to- our requirements for adequacy of a taxpayer\u2019s interests, see State ex rel. Overton v. State Tax Commissioners, 80 N.M. 780, 461 P.2d 913 (1969), when public interest requires we exercise our power of superintending control. State ex rel. Castillo Corp. v. New Mexico State Tax Comm., 79 N.M. 357, 443 P.2d 850 (1968).\nHere, we do think the Sunday sale of liquor is an issue of public importance, and that the Attorney General and the Director should be commended for their concern over the question. Why shouldn\u2019t the court decide it for them in this action? We quote again from Borchard, supra, at 888:\n\u201cAdministrative authorities find in the declaration a protection against mistaken or illegal conduct and against the resulting penalties and attacks. In general, the traditional law compels an officer to-be his own constructionist, and whether he acts, because he assumes he is lawfully authorized thereto, or fails to act, because he assumes he is not, he exposes himself to serious risks in either case, and stakes his security on the accuracy of his guess. This is neither wise nor efficient administration, for the public, for the officer, or for the individual citizen directly affected. While injunction has offered slight relief for these dilemmas, its scope is limited. The declaratory judgment shows the way out. It is hardly possible to measure completely the social advantage accruing from the opportunity to secure a conclusive adjudication upon contested official action before rather than after it is undertaken. The conditions of justiciability are naturally demanded, to avoid any question of rendering merely advisory opinions. \u2022 But the decision when made between the plaintiff administrative authority, bringing to issue his or its own power or privilege to act, and an interested opponent, serves to clarify the legal position and averts the danger of incurring a criminal penalty, dismissal, or action in tort, and the deleterious public consequences of wrongful official acts.\u201d (Emphasis added.)\nIn the present action, only the intervenors have any interest as to how the matter should be decided; the only concern of the plaintiff and the defendant, as public servants, is that the matter be decided. The constitution of a number of states requires or authorizes advisory opinions. The jurisdiction in declaratory judgment actions is consequently broader in those states than it is in New Mexico where advisory opinions are not permitted. Richardson: \u201cDeclaratory Judgments and Advisory Opinions as Judicial Legislation,\u201d 22 Tenn.L. Rev. 354 (1952).\nThe question is only one of standing or right to sue as in the Overton cases, State ex rel. Overton v. New Mexico State Tax Com\u2019n, 81 N.M. 28, 462 P.2d 613 (1969), and State ex rel. Overton v. State Tax Comr\u2019s, supra, because of the nature of the action here and the lack of an interested party. Either the plaintiff or the defendant would have standing to appear in behalf of the state against an interested opponent. Taos County Board of Education v. Sedillo, supra; Harriett v. Lusk, 63 N.M. 383, 320 P.2d 738 (1958); Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Order of Railway Conductors of America v. Swan, 329 U.S. 520, 67 S.Ct. 405, 91 L.Ed. 471 (1947).\n, Certainly the plaintiff has standing in an action against other departments of the state if their interests would make them adversaries so as to present a real case or an actual controversy. See State ex rel. Yeo v. Ulibarri, 34 N.M. 184, 279 P. 509 (1929), a mandamus action. In State ex rel. State Highway Commission v. Walker, 61 N.M. 374, 301 P.2d 317 (1956), it was decided that a writ of mandamus would lie. if the contention of the Highway Department in its action against the Land Commissioner was correct, and there we said:\n\u201c * * * This fact [the appropriateness of mandamus] has caused us to determine the case on its merits, although the action was brought for a declaratory judgment. It is, therefore, unnecessary to pass upon the question whether under our Declaratory Judgments Act, \u00a7 22-6-1 et seq., NMSA, 1953, an action will lie against a state department or official at the suit of another state department or official. In this connection see: Taos County Board of Education v. Sedillo, 1940, 44 N.M. 300, 101 P.2d 1027; and Arnold v. State, 1944, 48 N.M. 596, 154 P.2d 257.\u201d (61 N.M. at 376, 301 P.2d at 318.)\nThe case before us, however, is similar to State ex rel. La Follette v. Dammann, 220 Wis. 17, 264 N.W. 627, 103 A.L.R. 1089 (1936). There, the Governor sought a declaration of his power to make interim appointments which power the Secretary of State denied. The court thought this was merely a difference of opinion since the Governor had not made any appointments \u2014 even though the Governor asserted that the Secretary of State\u2019s opinion prevented him from securing suitable persons in filling the vacancies. There, the court said that this difference in opinion is not enough to make a justiciable controversy. The court said further:\n\u201c * * * Any declaratory judgment that we might now render would in no real sense be binding either upon those who may hereafter be appointed to office or upon the present occupants thereof. That circumstance alone is sufficient to cause us to refrain from rendering a declaratory judgment at the present time, since the rights of the very persons whose protectible interests are sought to be affected by the requested declaratory judgment would not be prejudiced thereby, section 269.56(11), and the uncertainty or controversy so-called, which gave rise to this proceeding, would not be terminated, section 269.56(6). State ex rel. Mellott v. Board of Com\u2019rs of Wyandotte County, 128 Kan. 516, 279 P. 1; Harrell v. American Home Mortgage Co., 161 Tenn. 646, 32 S.W.2d 1023; Sadler v. Mitchell, 162 Tenn. 363, 367, 36 S.W.2d 891; Miller v. Miller, 149 Tenn. 463, 261 S.W. 965.\u201d 264 N.W. at 629, 103 A.L.R. at 1093.\nSee also United States v. West Virginia, 295 U.S. 463, 55 S.Ct. 789, 79 L.Ed. 1546 (1935), and the cases in the annotation at 103 A.L.R. at page 1094, also the annotation at 149 A.L.R. 349, at 367 and 368.\nIn State ex rel. Dickson v. Aldridge, 66 N.M. 390, 348 P.2d 1002 (1960), the Attorney General sought to restrain the Chief, Division of Liquor Control, from reclassifying a club license. The holder of the license and the prospective purchaser were permitted to intervene. The \u201cinterest\u201d of the Attorney General in the matter was not questioned, but certainly the \u201cinterest\u201d of the intervenor in the matter was substantial and was capable of being affected by the decision. But, in the case before us, the intervenors as well as the principal parties seek only an advisory opinion. The intervenors do not allege that any of their rights are being threatened, nor is there any serious contention made by either the plaintiff or the defendant that \u00a7 2 of ch. 280, supra, relating to sales of liquor at the racetracks, is not constitutional as a sever-able portion of the act so that it would stand even if the rest of the act is unconstitutional.\nIt is obvious that the intervenors appeared herein simply to avail themselves of the possibility of a precedent being established against their interest and to obtain such assurance as they could against possible future adverse action. Their appearance under these circumstances did not present a justiciable controversy. Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952). No injunction was sought against intervenors, and no advisory opinion can be rendered by this court in their behalf. Bell Telephone Laboratories, Inc. v. Bureau of Revenue, 78 N.M. 78, 428 P.2d 617 (1966).\nIn the case here on appeal there was no licensed distributor before the court below or any other \u201cinterested party\u201d sufficient to give it jurisdiction. Its judgment would not even be binding upon the parties hereto if raised in a later action by \u201cinterested\u201d persons. As we said in Asplund v. Alarid, 29 N.M. 129, 219 P. 786 (1923), and reiterated in State ex rel. Overton v. New Mexico State Tax Comm., supra:\n\u201c* * * It is not the duty of this or any other court to sit in judgment upon the action of the legislative branch of the government, except when the question is presented by a litigant claiming to be, adversely affected by the legislative act on the particular ground complained of.\u201d\nBelieving that the district court had no jurisdiction to decide the matter before it, I would reverse with instructions to dismiss the action.", "type": "dissent", "author": "WATSON, Justice" }, { "text": "TACKETT, Justice\n(dissenting).\nThe majority opinion holding contrary, I respectfully join Justice Watson in his dissent and add the following.\nThe paramount question is whether there is here present an actual or justiciable controversy to declare rights and legal relations of any interested party. We do not have an interested party in this action. The authorities on which the majority relies had an interested party. \u25a0 \u25a0{\nWe should decline to permit our' district courts to be converted into \u201cjudicial ponds\u201d to fish for legal advice under the guise of a declaratory judgment. Orange Independent School District v. West Orange Independent School District, 390 S.W.2d 81 (Tex.Civ.App. 1965). The majority opinion is opening wide the door to allow fishing in judicial ponds for legal advice, This\u2019court has repeatedly held it will not render advisory opinions, yet that is exactly what the majority is doing.\nThere is one additional matter in the majority opinion which troubles me considerably. The majority opinion states:\n\u201cThe Director interprets ch. 216 so as to permit the serving on Sunday of alcholic liquors if previously purchased. There are some obvious enforcement problems with the Director\u2019s interpretation but those problems do not make his interpretation so absurd or unreasonable as to require us to go in the direction urged by the Attorney General.\u201d\nThe majority holds that \u201cserve\u201d does not include \u201csell,\u201d but customers can drink 011 Sunday if the liquor was \u201cpreviously purchased.\u201d I feel that such reasoning invites violation pf the law. It encourages dishonesty in the sense that it will encourage those who drink on Sunday to actually pay for the liquor consumed on Sunday, while being forced to claim that the liquor consumed was really \u201cpreviously purchased.\u201d\nI respectfully dissent.", "type": "dissent", "author": "TACKETT, Justice" } ], "attorneys": [ "James A. Maloney, Atty. Gen., Richard J. Smith, Asst. Atty. Gen., Santa Fe, for plaintiff - appellant.", "Frank P. Dickson, Jr., Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "477 P.2d 301\nSTATE of New Mexico ex rel., James A. MALONEY, Attorney General, Plaintiff-Appellant, v. David R. SIERRA (Substituted for L. A. McCulloch, Jr.), Director, Department of Alcoholic Beverage Control, Defendant-Appellee.\nNo. 8964.\nSupreme Court of New Mexico.\nNov. 23, 1970.\nJames A. Maloney, Atty. Gen., Richard J. Smith, Asst. Atty. Gen., Santa Fe, for plaintiff - appellant.\nFrank P. Dickson, Jr., Albuquerque, for defendant-appellee." }, "file_name": "0125-01", "first_page_order": 181, "last_page_order": 195 }