TURLEY V. STATE, 1981-NMSC-081, 96 N.M.
579, 633 P.2d 687 (S. Ct. 1981)
CASE HISTORY ALERT: affected by
1983-NMSC-059
see ¶1 - affects 1980-NMCA-167
CLARENCE "FRANK" TURLEY,
Petitioner,
vs.
STATE OF NEW MEXICO, Respondent.
SUPREME COURT OF NEW MEXICO
1981-NMSC-081, 96 N.M. 579, 633 P.2d 687
ORIGINAL PROCEEDING ON CERTIORARI.
Leslie Rakestraw, Rio Rancho, New Mexico,
Attorney for Petitioner.
Jeff Bingaman, Attorney General, Jill Z.
Cooper, Asst. Attorney General, Santa Fe, New Mexico, Attorney for Respondent.
Easley, C.J., wrote the opinion. WE
CONCUR: DAN SOSA, JR., Senior Justice, H. VERN PAYNE, Justice, WILLIAM R.
FEDERICI, Justice. RIORDAN, Justice, dissenting.
{*580} EASLEY, Chief
Justice.
{1} Turley was charged with
using mechanical earth-moving equipment to excavate an archaeological site on
another person's private property to remove objects of antiquity without a
permit. The trial court dismissed the criminal information. The Court of
Appeals reversed. We reverse the Court of Appeals and affirm the trial court's
dismissal of the criminal information against Turley.
{2} The issue is whether
Turley, employed by the landowner to do the digging, violated Section
18-6-11,
N.M.S.A. 1978 (Repl. Pamp. 1980), in excavating on the employer's land without
a permit approved by the state archaeologist. We hold that Turley, as an
employee of the landowner, was not required to obtain a permit.
{3} Subsection (A) of the
statute reads, in part:
It is unlawful for any person to excavate with the use of
mechanical earth moving equipment an archaeological site for the purpose of
collecting or removing objects of antiquity when such archaeological site is
located on private land in this state, unless such person has first obtained a
permit issued pursuant to the provisions of this section for such excavation.
{4} Subsection (B) permits
such excavation upon approval of the state archaeologist and sets forth the procedure
for obtaining the permit. Subsection (C) provides that archaeological specimens
collected shall be the property of the person owning the land on which the site
is located.
{5} Subsection (D) is
significant here, providing:
Nothing in this section shall... require such owner to obtain
a permit for personal excavation on his own land.
{6} The State contends that
the permit procedure is mandatory when the landowner has authorized another
person to do the excavation. In essence, the State argues that the word
"personal" in Section 18-6-11(D), means that the landowner
{*581} must personally operate any mechanical
earth-moving equipment, or obtain a permit for a non-owner operator.
{7} We disagree. We construe
Section 18-6-11 according to its plain meaning.
Brown v. Bowling,
56
N.M. 96,
240 P.2d 846 (1952). The State's interpretation would reject the
application of the law of agency to these facts. It is an elementary principle
of law that a person may do anything through an agent that he may lawfully do
personally, unless public policy or some agreement requires personal
performance.
Smith v. Walcott,
85 N.M. 351,
512 P.2d 679 (1973);
Coldwater
Cattle Co. v. Portales Valley Project, Inc.,
78 N.M. 41,
428 P.2d 15
(1967); 3 AM.JUR.2d,
Agency, § 20 (1962);
Restatement (Second) of
Agency, § 17 (1958). Furthermore, in order to determine that a right
conferred by statute must be exercised personally and cannot be delegated to an
agent, the statute must either expressly or by necessary implication prevent an
agent from acting.
Smith v. Walcott,
supra;
Coldwater Cattle
Co. v. Portales Valley Project, Inc.,
supra.
{8} The statute here does not
state or imply that excavation by an agent is proscribed. We therefore conclude
that in exempting the landowner from the permit requirement, the statute also
allows the landowner to use an employee or agent to accomplish the task.
{9} Applying this rule to the
facts of this case, we inquire whether Turley was operating solely in the
capacity of an agent of the landowner. Turley was employed under a written
contract with the landowner which was stipulated at trial to be the complete
understanding and agreement of the parties thereto. The contract provided that
Turley was to perform certain excavation of behalf of and under the personal
supervision of the landowner. The contract further provided that all artifacts
recovered during the excavation were to be the sole property of the landowner.
Under these facts, Turley was clearly not operating in any proprietary
capacity, or as a licensee, or as a joint venturer or partner with the
landowner, but merely as the agent of the landowner, and solely on his behalf
and under his control. As an agent of the landowner, Turley was not required to
obtain a permit.
{10} As to an additional point
of error raised by Turley, we find there is insufficient evidence in the record
upon which the Court of Appeals could predicate a general principle of law that
a legislator's testimony is not competent evidence as to the intent of the
legislative body enacting a measure, and reverse as to that issue.
{11} We reverse the Court of
Appeals and affirm the dismissal of the criminal information by the trial
court.
SOSA, Senior Justice, and PAYNE and FEDERICI, JJ., concur.
RIORDAN, Justice, (dissenting).
{13} I cannot agree with the
majority. I believe that the opinion of Chief Judge Wood of the Court of
Appeals is a correct interpretation of the statutes in question, and I adopt
that opinion as my dissent.