Ex parte Deats

OPINION OP THE COURT. Hanna, C. J. [1] The legislative session of 1913 enacted two laws regulating the barter, sale, and exchange of intoxicating liquors. The first applies to municipalities, and is incorporated in the Session Laws as chapter 75 (sections 2940 to 2948, inclusive, of the Code of 1915). The second appears as chapter 78 of the Session Laws (sections 2927 to 2939, inclusive, Code 1915). The last-mentioned act provides for the submission of the question to the qualified electors of any district within any count}1, excluding any territory within any incorporated city, town, or village. The municipal act provided for a petition to be signed by 25 per cent, of the electors, and that the question should be submitted but once every four years, and then only upon petition, as provided by the terms of said act. The district act, known as chapter 78, likewise provided for a petition to be signed by 25 per cent, of the qualified electors within the proposed district described in the petition. The act further provided that, upon the filing of said petition, the county commissioners should— “enter upon their minutes an order designating such district in accordance with the description thereof contained in such petition, except in case two or more such petitions are filed wherein the area described is conflicting, in which event the commissioners shall determine the district or districts in which the question shall be submitted.” Section 1 of the latter act, appearing as section 2927 of the Code of 1915, further provided that: “The county commissioners of any county of the state shall submit to the qualified elector's of any district within their county, to be designated by them as hereinafter provided, the question of whether or not the barter, sale or exchange of intoxicating liquors shall be prohibited therein * * ®” —leaving no discretion in the county commissioners when a petition conforming to the statute had been filed with them. Section 9 of this act likewise provided that: “Such question affecting any territory included in any such petition shall not again be submitted for your years from the date of the election, and then only upon petition filed as herein provided.” The section 1 referred to, in what may be called the district act, appearing as chapter 78 of the Session Laws, was amended by chapter 47 of the Laws of 1917. After re-enacting section 1, the amendatory act further provides : “Except as in this article otherwise provided, any such district so designated by the county commissioners shall include such part of the area of any county as may be described in the petition provided for and filed in accordance With this article: Provided, that it shall not include any territory within any incorporated city, town, or village of more than 1,000 population, whether incorporated under general or special laws.” Under the statutes referred to, we are called upon to determine whether or not the petitioner, J. F. Deats, who has applied for a writ of habeas corpus, should be discharged from custody in a proceeding instituted before the justice of the peace of precinct No. 1 of Curry county, wherein he was charged with violation of section 2934, Code of 1915, which is a part of chapter 78 of the Laws of 1913. It appears that under this act a petition was circulated in Curry county, to¡ which was attached the signatures of the requisite number of electors, pursuant to which an election was ordered and held for the entire county of Curry, excepting the city of Clovis, on the 21st day of May, 1917, and after the election had resulted in favor of prohibition, and the result had been canvassed and declared, it is urged that the penal provisions of said chapter 78 became operative within said county, and that therefore the said J. F. Deats is lawfully detained in custody for a violation of the provisions of said act. It is urged by petitioner, however, that the provisions of chapter 78 of the Laws of 1913 are not in effect in the incorporated town of Texico, or in the town of Melrose, both of which towns were included within the limits of the boundaries described in the petition as constituting the district wherein a local option election was desired by the petitioners, because in both Texico and Melrose the question had been previously submitted within a period of four year’s, for which reason the petition was illegal and void, and1 the county commissioners were without jurisdiction to call the election of May 21, 1917. It is further contended on behalf of petitioner that the amendatory act, chapter-47 of the Lawsi of 1917, did not authorize the county commissioners to act upon a petition which contained a description- of the district including the territory of the incorporated 'town of Texico and to order an election therein, and that the amendatory act is prospective only, and that the Legislature never intended it to operate upon territory in which the question had been previously submitted within a period of four years. On behalf of the respondent it is contended that the amendatory act of 1917 repealed the municipal local option law in so far as the same applied to municipalities of less than 1,000 population, and that such amendatory act to that extent was in conflict and inconsistent with the terms of the municipal local option law. Without desiring to lengthen this opinion by a discussion of all the reasons, we think it is clear that chapter 75 of the Laws of 1913 was intended to apply only to incorporated cities, towns, and villages, while chapter 78 of the same Session Laws was to have application only to such districts as might be created by petition within counties, excluding any territory within incorporated cities, towns, or villages. In 1917 the Legislature clearly intended to take out from under the operation of chapter 75 incorporated cities, towns, or villages of less than 1,000 population; such municipalities to be thereafter governed by the district law, or chapter 78 of the Laws of 1913, as amended by the 1917 act. We do not agree that the two' methods 'for the submission of the local option question wore intended to be continued in effect as applied to municipalities of less than 1,000 population. The first act, that of chapter 75, provides a procedure materially different from that of chapter 78, as amended, and the conflict between the two methods of procedure is sufficiently clear to call for an implied repeal of chapter 75, so far as it applies to municipalities having a population of less than 1,000. It is conceded that the town of Texico was a municipality having a population of less than 1,000 persons at the time of the election held there on June 9, 1914, and petitioner alleges that the amendatory act of 1917 cannot apply to Texico until four years after that election. Petitioner depends upon section 5 of the municipal act to support this theory, which, as indicated, supra, provided that "such question” (referring to the question of local option) shall he submitted but once every four years, and then only upon petition filed as herein provided. It is clear that the class of municipalities in which Texico was has been taken out from under the application oE the municipal act, and we are therefore left to a consideration only of the question of whether or not the Legislature, in its wisdom, could make provisions for governing future elections in municipalities of this class without regard to the inhibition of the former act against the resubmission of the question within four years. It is clear that Toxico is not to be longer governed by the provisions of chapter 75, but, on the contrary, must look to the district act as defining her rights, at least prospectively. If we were to hold that she had a right to claim her privilege of asking that four years should elapse before the question should again be submitted, it would seem that we would again be compelled to hold, after that period of time had elapsed, that the question could only again be submitted upon petition filed as provided for by the municipal act, when as a matter of fact she would then be amenable only to the district act, under the terms of which she would clearly fall, and we cannot see how she can be for one purpose included under one act and for another purpose be included under the provisions of the other act. The Legislature in both acts of 1913 evidently determined as a matter of public policy that elections upon the subject should not be oft-repeated, and that the public should not be aroused by too early resubmission of a question upon which public sentiment is strongly divided, and this statement of legislative intent, or public policy, is but the fiat or declaration of the Legislature, which it can change at will. In other words, the people of Texico are amenable to public policy as declared by the Legislature in this respect, and while it is true that chapter 78 of the Laws of 1913, under which Texico is now to be governed, likewise provides that the question shall not be resubmitted within four years from the date of the election, and then only, upon petition as provided for by the act, yet Texico, not having been governed by the provisions of the district act at the time of her former election, cannot measure her present rights by- an act which had no application to her condition at the time of her election.. If our conclusion in this respect is not correct, the Legislature could not effectuate state-wide prohibition, or any form of local option, by the enactment of new legislation and the repeal of all existing legislation. To state the proposition is to point to the absurd state of affairs which would arise, were we to agree with the contention. The case of State v. Donovan, 61 Wash. 209, 112 Pac. 260, supports our conclusion in the matter of the question raised as to Texico. In that case a county of the state of Washington, in which was situated the town of McMurry, held an election resulting in the prohibition of the sale of liquor within the county. Afterwards the town of Mc-Murry was incorporated, and thereby fell under a general act of the licensing of saloons in incorporated towns, and it was held by the Washington court that the town might license tire sale of liquor therein under the conditions of the general act, and that it was not necessary to first have a local option election in such town, although the time within which the period of prohibition should continue under the election had not expired. The court in its opinion considered the rule laid down in 23 Cye. p. 95, in the following language: “Where the local option law is in force in an entire district, and a portion of the district is cut off! and joined to other territory under a new name,, the law still remains operative ■ through the part not thus served; and also, where a new district is carVed out of the one where prohibition is in force, the same law will continue in force in the new district.” The court pointed out that the cases supporting the announced rule in-Cyc. were eases where the question of changing boundaries alone was considered, but that in the Washington case another principle was involved, which had no- reference to the change of boundaries, but did have reference to the establishment of another form of government within a territory which had previously been brought under the operation of the law. It was said in the opinion of the court that: "It is not by reason ofi any change of territory that it is given this right, but by reason of the authority which the general law gives to incorporated towns.” While the facts of the Washington case and the ease under consideration are not parallel, the reasoning is applicable to the present case by -reason of the fact that Texico by the legislative declaration of 1917 was taken out from under the provisions of the so-called municipal act, and placed under the provisions of the so-called district act. She thereby becomes governed by all the terms and provisions of the general act, known as the district act, and it is not a question of change of boundaries, but purely a question of the law applicable, which in this case is the district law, and to which she must look entirely for a definition of her rights and responsibilities. We conclude, therefore, that chapter 47, Laws of 1917, impliedly repeals chapter 75, Laws of 1913, so far as that act applies to municipalities having a population of less than 1,000, and that such municipalities are hereafter to be governed in matters of local option elections and rights arising therefrom by chapter 78 of the Laws of 1913, as amended. [2] A further question, however, is presented by the petition, in the point made that the Legislature was power-' less to pass a law affecting the rights of the petitioner acquired by him by reason of the fact that Texico had previously voted to remain wet, because the law prohibits a resubmission of the question within fo-ur years. It is contended that the petitioner claims his vested rights, which the legislation would deprive him of; in other words, that the petitioner gained the right to obtain a local license to engage in that business for the period of four years. This court has recently held against this contention in the case of Schwartz et al. v. Town of Gallup et al., 22 N. M. 521, 165 Pac. 345, a case not officially reported; and a like holding was had in the case of Ex parte Everman, 18 N. M. 605, 139 Pac. 156. In the ease last cited the court held: “A license to retail intoxicating liquor is neither a property right nor a contract. . It is in no sense a contract made by the state with a party holding the license; it is a mere permit, subject to be modified, or annulled, at the pleasure of the Legislature.” This holding is decisive of the question under consideration and there can bo no vested right as contended lor. [3,4] A serious question is presented by the fact that the Melrose district was included in the petition. Melrose was not an incorporated town and fell under the provisions of chapter 78. The election there was held on August 30, 1913, so' that by the inclusion of this district in the petition for the election held on May 21, 1917, a district was included wherein the question had been submitted within four years under the same law. It is clear to -us that this district was erroneously included in the district described in the petition for the last election of 1917, and the effect of the inclusion of this district in the petition referred to is the serious question presented for our consideration. It is contended that, because the petition filed with the board of county commissioners included this district of Melrose, the petition was invalid, and the order of the board of county commissioners ordering the election was equally invalid and of no effect. We believe it is to be conceded, in local option elections, that: “A petition, to give jurisdiction, must contain all the averments required by statute, and where the petition for the election is not in compliance with the statute, all proceedings based thereon are void, and no jurisdiction to order an election is acquired, and the election in such case is1 a nullity.” Joyce on Intoxicating Liquors, § 381. We hold, however, that the statute in this ease does no more than require the accurate setting out of the boundary of the proposed district, together with the requisite 25 per centum of the electors as signors, and while it is true that the same law provides that the question shall not be resubmitted for four years from the date of the election, yet it is also true that this act leaves no discretion whatsoever in the board of county commissioners in the matter of defining the boundaries of the district, except in case of conflict, and while the inclusion of the Melrose district was erroneous, because of the fact that an election had been previously held in that district, that is a matter which, upon being brought to the attention of the court, can- be corrected by tbe elimination of tbe district, wrongfully included, provided such elimination does not affect the result, as is conceded to be the case here. "We are not unaware of the fact that it is contended that this inhibition against the resubmission of the question is in some jurisdictions held to mean resubmission in the same territory; but we do not deem it necessary to consider the matter from this standpoint, in view of our conclusion that the petition on its face set out facts which conferred jurisdiction upon the board of county commissioners to order an election. If the development of subsequent facts demonstrated an erroneous inclusion of such territory, it is like any other question of erroneous exercise of jurisdiction— one that may be corrected in the proper forum of the courts, which this court can do by holding, as it does, that the election had no force or effect in the Melrose district, where it was shown that an election had previously been held within a period of four years. Our attention has not been directed to a case in point, nor. have we been able to find one; but on principle it would seem that the question of jurisdiction depends upon whether there Was simply a wrongful exercise of jurisdiction, rendering the proceeding voidable, or a lack of power to hear the matter- at all, rendering the action absolutely void. This distinction is pointed out in 17 Am. & Eng. Ene. 1048. There was power to order the election, where the petition defined a district and the requisite number of electors signed, and an erroneous inclusion of a part of the territory affected, while erroneous, does not constitute an exercise of jurisdiction that is absolutely void, but one that is merely voidable as to' the territory affected, and is therefore not subject to collateral attack. Summarizing, our conclusion as to the Melrose matter is that under chapter 78, Laws of 1913, the county commissioners have power to order a local option election, where the petition defines a district and is signed by the requisite number of electors, and an inclusion of territory in which a local option election has been held within four years, while erroneous, does not invalidate the election, provided the elimination of such territory will not change the result. We do not need to discuss, in our opinion, the further question, raised and ably argued, as to the element of harmless error, growing out of the fact that Melrose voted in favor of prohibition at its first election and at the subsequent election held this year as well, thereby not changing the status of its condition in that respect, and not working any harm thereby to relator.- We conclude that the writ prayed for should be denied, and'that the relator should be remanded to the custody of the respondent; and it is so ordered.