Town of Mesilla v. Mesilla Design Center & Book Store, Inc. , 71 N.M. 124 ( 1962 )

CARMODY, Justice

(concurring specially) .

Although I agree with the majority that the ordinance involved is invalid, I do not believe that it should be determined on the basis of City of Lovington v. Hall, 1961, 68 N.M. 143, 359 P.2d 769.

Quite obviously, the ordinance is deficient in failing to provide for regulation as we determined in the Lovington case. Nevertheless, the Lovington case concerned a tax on coin-operated machines, which are specifically mentioned in § 14-42-8, N.M.S.A., 1953 Comp., whereas the instant case is an attempt to license a type of business expressly mentioned in § 14-42-7, N.M.S.A., 1953 Comp., namely, “wholesale and retail merchants of all kinds.”

Inasmuch as the business here involved is particularly named or specified in § 14-42-7, it may not be taxed under the plain provisions of the last sentence of § 14 — 42-8. In other words, the legislature has authorized, in effect, the imposition of an occupation tax upon the type of business operated by the appellees, but has provided that they may not be licensed or regulated otherwise by the municipality.

In my judgment, therefore, the case should be determined purely on a basis of statutory construction. The two1 statutes are plain and unambiguous, making reliance upon the Lovington case unnecessary. The ordinance is invalid on its face, and no regulatory provisions, even if enacted, could make it otherwise. The appellant has only those powers granted to it by the legislature. Here, the authority to license, other than by the imposition of an occupation tax, is not granted and, on the contrary, is expressly prohibited; therefore, further consideration of the ordinance is unnecessary.

For the reasons stated, I cannot concur in the opinion of the majority, but do concur only in the result.