Chronis v. State Ex Rel. Rodriguez , 100 N.M. 342 ( 1983 )

OPINION

STOWERS, Justice.

This appeal arises from the trial court’s finding that certain sections of the Liquor Control Act, 1981 N.M.Laws, chapter 39 are unconstitutional. At trial, the plaintiffs alleged that Sections 36, 103, 110, 113, and 114 of the Act were unconstitutional and that the entire Act was therefore void because it was unseverable. The trial court’s holdings on Sections 110 and 113 were not challenged on appeal.

On appeal, the issues presented to this Court are the severability of the Act and the constitutionality of Sections 36,103, and 114.

Plaintiffs and plaintiffs-in-intervention in this action are owners-operators and owners-lessors of liquor licenses, and taxpayers who have paid and expect to pay gross receipts taxes to the State of New Mexico for the general operation of state government. Various people operating under canopy licenses were permitted to intervene as party defendants. Walgreen Co. and Walgreen Hastings Co. were allowed to intervene by order of this Court dated March 3, 1982. Plaintiffs and plaintiffs-in-intervention are the appellants and cross-appellees herein. The State is the appellee and cross-appellant. Walgreen Co. and Walgreen Hastings Co. are the appellees-in-intervention and cross-appellants in intervention.

On June 12, 1981, prior to the Liquor Control Act’s effective date of July 1, 1981, the plaintiffs-appellants brought an action for a declaratory judgment challenging the constitutionality of the Act. They requested a preliminary injunction enjoining the defendants, the Director of the Alcoholic Beverage Control Department and the Secretary of the Taxation and Revenue Department, from enforcing the provisions of the Act until the issues raised had been judicially resolved. The trial court issued a temporary restraining order on June 23, 1981, and modified it on June 26, 1981. It then entered a preliminary injunction on July 17, 1981. After a hearing, the trial court issued findings of fact and conclusions of law, and a memorandum opinion and judgment. The trial court held that the Liquor Control Act was operative and constitutional except for Sections 103 and 114. It also held that the entire Act was not affected by the plaintiffs’ successful attack on Sections 103 and 114 despite the Governor’s veto of a severability clause. The trial court concluded that the Act was severable because other precepts of statutory construction permitted the severance of the unconstitutional sections.

I. Severability of the Act

The trial court found that the Governor’s veto of Section 129, the severability clause, was constitutionally permissible. It also found that Chapter 39 does not appropriate money. Although the trial court found the Governor’s veto to be valid, it concluded that the Governor’s action did not affect the severability of the law.

N.M. Const. art. IV, Section 22 (emphasis added), provides in pertinent part:

The governor may in like manner approve or disapprove any part or parts, item or items, of any bill appropriating money, and such parts or items approved shall become a law, and such as are disapproved shall be void unless passed over his veto, as herein provided.

The trial court was correct in holding that the Governor’s action did not affect the severability of the law. However, because the Act does not appropriate money, we hold that the Governor’s veto power was invalidly exercised in violation of Article IV, Section 22. See State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975 (1974); State ex rel. Dickson v. Saiz, 62 N.M. 227, 308 P.2d 205 (1957); see also AG Op. No. 81-12 (1981). The language of the Constitution is clear. The Governor’s power of partial veto is limited to bills appropriating money.

II. Section 36

The trial court held that Section 36 of the Act was constitutional because the plaintiffs had no vested property right in a liquor license as against the State. The plaintiffs allege, however, that the Liquor Control Act is unconstitutional because it takes existing licensees’ property interests without due process. However, we can find no persuasive authority for us to differentiate m this ease between the terms “property right” as used in Section 36 and in prior New Mexico cases and the term “property interest” as used by the appellants.

Section 36 provides that:

The holder of any license issued under the Liquor Control Act or any former act has no vested property right in the license which is the property of the state; provided that until June 30, 1991, licenses issued prior to the effective date of the Liquor Control Act shall be considered property subject to execution, attachment, a security transaction, liens, receivership and all other incidents of tangible personal property under the laws of this state, except as otherwise provided in the Liquor Control Act.

(codified at NMSA 1978, § 60-6A-19 (Repl. Pamp.1981)).

This Court has consistently held that as between a licensee and the State, a liquor license is a privilege and not a right. As early as 1914, this Court determined that a person has no interest in a license and that the license is neither a property right nor a right of contract, but a mere license, revocable under certain conditions. In re Everman, 18 N.M. 605, 139 P. 156 (1914). Subsequently, we reaffirmed that a liquor license is a mere permit which may be modified or annulled at the pleasure of the Legislature. Floeck v. Bureau of Revenue, 44 N.M. 194, 100 P.2d 225 (1940); Ex parte Deats, 22 N.M. 536, 166 P. 913 (1917). Moreover, in Chiordi v. Jernigan, 46 N.M. 396, 400, 129 P.2d 640, 642 (1942), this Court specifically held:

The liquor control act is a police regulation * * * The state has prescribed the terms under which it will grant such license and likewise the terms under which it may be revoked. It may give and it may take away through its constituted authority * * * * Such license is a privilege and not property within the meaning of the due process and contract clauses of the constitutions of the State and the nation, and in them licenses have no vested property rights. (Citations omitted.)

In Chiordi, this Court upheld the authority to give communities the option to be dry and prohibit all licenses.

This Court has repeatedly held that a liquor license is a privilege subject to regulation and not a property right. For example, this Court has held that a citizen has no inherent power to sell intoxicating liquors, stating that “[a]s it is a business attended with danger to the community it may be entirely prohibited or be permitted under such conditions as will limit to the utmost its evils.” Yarbrough v. Montoya, 54 N.M. 91, 95, 214 P.2d 769, 771 (1950). In Valley Country Club v. Mender, 64 N.M. 59, 323 P.2d 1099 (1958), we again noted that the owner of a liquor license had no vested rights in the license as against the State. Id. at 63, 323 P.2d at 1101. In Nelson v. Naranjo, 74 N.M. 502, 395 P.2d 228 (1964), this Court stated that “as between the State and the licensee, a liquor license is a mere revocable privilege vesting no property rights in the licensee * * * * ” Id. at 507, 395 P.2d at 231.

Finally, we also note that under the provisions of the prior liquor law there was no vested property right in a liquor license as against the State. NMSA 1978, Section 60-7-18(F) was formerly compiled as .NMSA 1953, Section 46-5-15(F), and provided as follows:

The holder of a retailer’s, dispenser’s or club license has no vested property right in the license as against the state, but as against creditors of the licensee the license shall be considered property subject to execution, attachment, security transactions, liens, receivership and any and all other incidents of tangible personal property under the laws of this state, except as otherwise provided herein.

We continue to hold that liquor license holders have no property right in their license as against the State, and accordingly find that Section 36 is constitutional.

We also address whether the enactment of the Liquor Control Act effects a taking of property without due process as argued by the plaintiffs. In order to answer this, we must determine whether the Act constitutes a reasonable exercise of police power by the State.

Under N.M. Const. art. IV, Section 1, the Legislature is granted power to promulgate laws providing for the preservation of the public peace, health or safety. Section 2 of the new Liquor Control Act (codified at NMSA 1978, § 60-3A-2(A) (Repl.Pamp.1981)) specifically states that it is the policy of the Act that “the sale, service and public consumption of alcoholic beverages in the state shall be licensed, regulated and controlled so as to protect the public health, safety and morals of every community in the state ****’’ This Court has recognized that the State has broad police power to regulate the liquor business. The Legislature has the power not only to regulate the sale of alcoholic beverages, but to suppress it entirely. Drink, Inc. v. Babcock, 77 N.M. 277, 421 P.2d 798 (1966). Furthermore, the Legislature may impose on the liquor industry more stringent regulations than on other businesses. Id. at 280, 421 P.2d at 800; see also Kearns v. Aragon, 65 N.M. 119, 333 P.2d 607 (1958).

As long as the regulation is reasonably related to a proper purpose and does not unreasonably deprive the property owner of all or substantially all of the beneficial use of his property, it does not constitute a taking of private property pursuant to the state’s police power. Stuckey’s Stores, Inc. v. O’Cheskey, 93 N.M. 312, 600 P.2d 258 (1979), appeal dismissed, 446 U.S. 930, 100 S.Ct. 2145, 64 L.Ed.2d 783 (1980). Under the new Act, current liquor license holders have the continued right to engage in the alcoholic beverage business. See §§ 41 and 113(J). Moreover, license holders may also transfer the location of licenses (§§ 39(B) and 113(D)), devise licenses (§ 44(B) and (C)), use the license away from the licensed premises for special occasions (§ 29), and temporarily suspend the operation of the licenses (§ 43(C)); Therefore, we do not find that the new regulation unreasonably deprives the owner of all or substantially all of the beneficial use of his license, namely the ability to engage in the business of selling alcoholic beverages.

III. Section 103

The trial court held that Section 103 entitled “Summary Suspension” was unconstitutional. Section 103 states that:

[w]here the director has reasonable grounds to believe and finds that a licensee has been guilty of a deliberate and willful violation of the Liquor Control Act or any regulation or order of the department or that the public health, safety or welfare requires emergency action, the director may summarily suspend the license without notice or hearing for a period of three days. Immediately thereafter, the director shall comply with the provisions of Section 100 of the Liquor Control Act.

(codified at NMSA 1978, § 60-6C-7 (Repl. Pamp.1981)).

The appellants allege that the provision for summary temporary suspension of a license for three days without prior notice or hearing lacks procedural due process of law. They also contend that the clause which states that “public health, safety, and welfare requires emergency action” is vague and therefore denies substantive due process of law. The trial court found that Section 103 was a substantive violation of the due process clause because there is no proper standard set forth for the director to exercise his power. Moreover, because the director may exercise this power without notice or hearing, the trial court also found Section 103 to be a violation of procedural due process.

In Drink, Inc. v. Babcock, 77 N.M. at 280, 421 P.2d at 800, this Court stated that “when the manufacture and sale of liquor is lawful, as it is under our laws, statutes providing for the regulation of the business are limited by constitutional guaranties * * * ” This was also noted by the California appellate court in Irvine v. State Board of Equalization when they stated:

[U]nder the American system of justice it is the policy of our law that a person should not be deprived even of a “permit” to engage in a legitimate business without a fair and impartial hearing and without an opportunity to present competent evidence for consideration by the licensing authority in opposition to the proposed revocation of his permit. (Citations omitted.)

40 Cal.App.2d 280, 284-285, 104 P.2d 847, 850 (1940).

Under the summary suspension provision, the director is given power to summarily suspend a license and shut down a business without giving notice or requiring a hearing. We agree with the trial court that this provision violates procedural due process guarantees under the New Mexico Constitution and therefore hold that Section 103 is unconstitutional.

The State argues, however, that the plaintiffs lack standing to challenge this section of the Act. The State contends that in the current case, none of the plaintiffs alleged, testified, or put on other evidence that they are injured in fact by or actually threatened with enforcement or the exercise of Section 103.

The plaintiffs’ attack upon the summary suspension provision was brought pursuant to the Declaratory Judgment Act, NMSA 1978, Sections 44-6-1 through 44-6-15. In order for a court to assume jurisdiction under the Declaratory Judgment Act, it must be presented with an “actual controversy.” § 44-6-2. The prerequisites of an “actual controversy” are:

a controversy involving rights or other legal relations of the parties seeking declaratory relief; a claim of right or other legal interest asserted against one who has an interest in contesting the claim; interests of the parties must be real and adverse; and the issue involved must be ripe for judicial determination. (Citations omitted.)

Sanchez v. City of Santa Fe, 82 N.M. 322, 324, 481 P.2d 401, 403 (1971).

The purpose of the Act is “to settle and to afford relief from uncertainty and insecurity with respect to rights * * * and [the Act] is to be liberally construed and administered.” § 44-6-14. To compel the licensees to await a summary suspension of their licenses before judicial review would frustrate the purpose of the Declaratory Judgment Act. Furthermore, it could cause irreparable injury to the reputations of these businesses and result in a loss of business and livelihood. We find that the legal interests of the parties are sufficiently adverse and that the issues are ripe for judicial determination. The trial court was correct in allowing these plaintiffs to seek a declaratory judgment.

We also find appellees’ contention that the plaintiffs’ complaint should have been dismissed because of failure to join indispensable parties to be without merit.

IV. Section 114

The trial court found that Section 114 of the Act constitutes an unconstitutional legislative diminishment of an obligation owed to the State. Section 114 of the Act provides in pertinent part:

A. During the period of economic adjustment * * * every retailer or dispenser who owns a license initially issued pri- or to the effective date of the Liquor Control Act may claim a credit against his liability to the state for gross receipts tax * * * on retailer’s or dispenser’s receipts from the sale of alcoholic beverages in an amount not to exceed thirty thousand dollars ($30,000.00) for each twelve-month period ending June 30 * * if the license is leased in its entirety, the licensee may claim the credit specified herein in an amount equal to the gross receipts tax paid by the lessee upon receipts from the sale of alcoholic beverages * * * in an amount .not to exceed thirty thousand dollars ($30,000.00) for each twelve-month period ending June 30. The licensee may claim the credit against any income tax, gross receipts tax, compensating tax or withholding tax due to the state from the licensee.

(codified at NMSA 1978, § 7-9-80.1 (Repl. Pamp.1983)).

The trial court found this provision to be a violation of N.M. Const, art. IV, Section 32, which states:

No obligation or liability of any person, association or corporation held or owned by or owing to the state, * * * shall ever be exchanged, transferred, remitted, released, postponed or in any way diminished by the legislature, nor shall any such obligation or liability be extinguished except by the payment thereof into the proper treasury, or by proper proceeding in court.

Although the trial court found Section 114 to be a constitutional violation of Article IV, Section 32, it also based its judgment on this Court’s analysis of two cases which construed legislative enactments in light of N.M. Const. art. IX, Section 14. Article IX, Section 14 provides in pertinent part that:

Neither the state nor any county, school district, or municipality, except as otherwise provided in this constitution, shall directly or indirectly lend or pledge its credit, or make any donation to or in aid of any person, association or public or private corporation * * *

In State ex rel. Mechem v. Hannah, 63 N.M. 110, 314 P.2d 714 (1957), this Court held unconstitutional a legislative enactment which granted to ranchers and farmers public funds to be used to purchase feed for livestock. The program was enacted to assist the livestock industry in overcoming severe drought conditions. In holding that the law enacting the program was unconstitutional, this Court noted that it attempted to give public money to private individuals. Furthermore, this Court stated that the fact that the program assisted the livestock industry, thus benefitting the economy of the state, was not sufficient to save the appropriation.

Moreover, the State was later allowed to recover those appropriated funds in State ex rel. Callaway v. Axtell, 74 N.M. 339, 393 P.2d 451 (1964). In Axtell this Court said:

We realize, as was said in Hannah, that, basically, the payments to the fund for the benefit of the ranchers and farmers was for the general benefit of the state; but, unfortunately, it was and is unconstitutional as a donation of funds to private individuals who are neither indigents nor paupers.

Id. at 348, 393 P.2d at 457.

In the present case, the trial court noted that every dealer in alcoholic beverages owes the State of New Mexico a gross receipts tax that must be and should be paid. Furthermore, the trial court stated that the gross receipts tax on the sale of alcoholic beverages is an obligation that is owed to the State which cannot be excused by the Legislature.

We agree with the trial court that Section 114 is unconstitutional. However, we find that Section 114 is unconstitutional because the reduction in payments of gross receipts taxes in this case constitutes an unconstitutional subsidy to the liquor industry in violation of Article IX, Section 14. Conclusion

For the foregoing reasons, we reverse the trial court’s finding that the Governor’s veto of the severability clause is constitutionally permissible and hold that the Act is severable and that the Governor’s veto of the severability clause was invalid. We affirm the trial court and hold that Section 36 is constitutional but that Sections 103 and 114 of the Liquor Control Act are unconstitutional. Accordingly, the opinion of the trial court is affirmed in part and reversed in part.

IT IS SO ORDERED.

PAYNE, C.J., and RIORDAN, J., concur. SOSA, Senior Justice, and FEDERICI, J., specially concurring and dissenting.