Allison v. Niehaus , 44 N.M. 342 ( 1940 )

The majority opinion contains arguments which no doubt would make a strong appeal before a session of the legislature considering a bill to prohibit oral conditional sales contracts. The legislature, however, not this court, is the body to say whether they shall be proscribed. And it has never yet said so by any express declaration. Even in the face of an obvious admonition of the territorial supreme court to oncoming legislatures in Redewill v. Gillen, 4 N.M. 72, 12 P. 872, to denounce all conditional sales agreements, the session laws covering a span of fifty-three years may be searched in vain for any express language prohibiting them, either oral or written.

Hence, the majority devote the greater part of their opinion to reasoning that the legislatures enacting L. 1917, c. 74 and L. 1923, c. 8, must have intended to prohibit such contracts where oral and that the legislature enacting the criminal statute (L. 1929, c. 46) against wrongful disposal of property held under conditional sales contracts must have thought the earlier legislatures had done so. The latter assumption brings little aid to the majority view for after all the controlling consideration is whether an intent to repeal the common law is to be deduced from the acts relied upon as accomplishing such repeal.

The majority agree that a verbal conditional sales contract was valid at common law. This concession is fatal to their conclusion. For, "* * * it is well settled that where a statute does not specifically repeal or cover the whole ground occupied by the common law, it repeals it only when, and so far as, directly and irreconcilably opposed in terms." (Italics mine.) Ex Parte DeVore, 18 N.M. 246, 136 P. 47, 51. I find no irreconcilable conflict here, nor does the statute purport to deal with anything but notice.

I see in the legislation relied upon nothing more than "notice" statutes in the interest of third parties. If they mean what the majority say they do, the legislature wasted many words and phrases. Instead of declaring a failure to observe the statute would render void the contracts designated as to a long list of enumerated persons, the legislature in a very few words could have proscribed oral contracts altogether. This it has never yet done expressly, as the majority agree, nor as I consider, by implication. It is not our proper function to declare policy and we invade the legislative field when we do so.

L. 1909, c. 30, § 1 (1929 Comp. § 48-125), denying an exemption from execution to the purchaser of chattels for unpaid purchase price, while title remains in the original purchaser, in effect recognizes a vendor's lien in favor of the seller, good as between him and the purchaser. This law is still in effect. The legislature apparently thus far has felt if it afforded ample protection to third parties, as it has done by the notice statutes in question, there was no good reason to deny to the parties themselves the right to contract orally for a reservation of title to chattels. But its reasons for not prohibiting such contracts are unimportant. If sufficient unto the legislature, our inquiry should end.

I dissent.