(dissenting).
I am unable to agree with the opinion authored by Justice McManus, which is concurred in by Justice Tackett, or with the specially concurring opinion of Justice Stephenson. However, I do very largely agree with Justice Stephenson’s appraisal of the action which was required on the part of defendants by § 46-4-8, N.M.S.A. 1953 (Repl. Vol. 7, 1966). I disagree with Justice Stephenson’s position that the real and basic question presented is the constitutionality of this statute.
The constitutional question which Justice Stephenson says is presented and is determinative of this case was never presented at the protest hearing before defendants, in the trial court, or in any of the briefs filed in this court. The question is clearly not jurisdictional. Thus, it is not a question to be first raised and considered by this court. Supreme Court Rule 20 [§ 21-2-1(20), N.M.S.A. 1953 (Repl. Vol. 4, 1970)]; Reger v. Preston, 77 N.M. 196, 420 P.2d 779 (1966); In Re Reilly’s Estate, 63 N.M. 352, 319 P.2d 1069 (1957); Miera v. State, 46 N.M. 369, 129 P.2d 334 (1942); National Mut. Savings & Loan Ass’n. v. Hanover Fire Ins. Co., 40 N.M. 44, 53 P.2d 641 (1936); Hutchens v. Jackson, 37 N.M. 325, 23 P.2d 355 (1933); State ex rel. Burg v. City of Albuquerque, 31 N.M. 576, 249 P. 242 (1926).
I do not mean to suggest that I would agree with Justice Stephenson’s conclusion as to the constitutionality of the statute if the question were properly presented. However, we need not and should not consider it under the circumstances.
In the opinion authored by Justice Mc-Manus it is stated defendants concede that all “necessary statutory pre-requisites were complied with in connection with the plaintiff’s application.” This is obviously refuted by the fact that defendants have at all times contended plaintiffs did not get the approval of defendants as the governing body of the City of Las Cruces as required by § 46-4-8 (C), N.M.S.A.1953 (Repl. Vol. 7, 1966). Justices McManus and Tackett, by a claimed statutory construction of the entire Alcoholic Beverages Act for the purpose of avoiding ambiguity therein, would deny what I consider to be a clear expression of legislative intent. This intent is that “ * * * the chief of the division of liquor control shall not * * * transfer the license * * * mentioned in the notice. * * *" [emphasis added], if the local governing body [in this case defendants-commissioners] disapproves the transfer of the license specified in the notice within thirty days after the date of the last publication thereof, and so advises the Chief of the Division of Liquor Control within five days after the action of disapproval has been taken. Section 46-4-8 (C), supra.
This is precisely what occurred in this case.
The language of § 46-4-8, supra, is to be given effect as written, and the words used therein are to be given their usual meaning, unless a different intent is clearly indicated. Winston v. New Mexico State Police Board, 80 N.M. 310, 454 P.2d 967 (1969); Gonzales v. Oil, Chemical and Atomic Workers Int. U., 77 N.M. 61, 419 P.2d 257 (1966). It appears to me that the meaning of the language used is clear, plain and unambiguous. If I be correct in my appraisal of the clarity of the statutory language, it must be given effect, and there is no room for construction. Torres v. Gamble, 75 N.M. 741, 410 P.2d 959 (1966); Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965); State v. Ortiz, 78 N.M. 507, 433 P.2d 92 (Ct.App.1967).
It is stated in the opinion of Justices McManus and Tackett that to interpret § 46-4-8(C), supra, as urged by defendants, “would result in an unmistakably ambiguous application of liquor law requirements, belying any legislative intent as to uniform, statewide regulation of the affected subject matter. * * *” I disagree with this statement, and suggest they are substituting what they feel should be the law and its manner of application, rather than giving effect to the clearly expressed legislative intent.
I agree the chief aim of statutory construction is to arrive at the true legislative intent, and, when necessary to look into this intent, our purpose should be to avoid and not create ambiguity. However, I submit there is no duplicity, indistinctiveness, or uncertainty of meaning in the language of § 46-4-8 (C), supra, and this language does not conflict with the language in any other section of the Alcoholic Beverages Act. At least no such conflict has been pointed out in the briefs or in either of the other opinions.
In my opinion the quotation from Glenn v. Board of County Com’rs., Sheridan County, 440 P.2d 1 (Wyo.1968), has been taken completely out of context and is inapplicable here. I suggest the procedures discussed, and the results reached with reference thereto, in the earlier Wyoming case of Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520 (1957), are much more nearly in accord with applicable procedures in the case now before us, and with the results we should reach in ruling thereon. In the Glenn case the court expressly observed that what it had earlier said in the Whitesides case with respect to the informal procedure adopted by the City Council had been largely superseded by the Wyoming Administrative Procedure Act. No such administrative procedure act is here applicable. Consequently, as Justice Stephenson has observed in his opinion, there was no question of a prima facie case being made out by plaintiffs. The case of Lyons v. Delaware Liquor Commission, 44 Del. (5 Terry) 304, 58 A.2d 889 (1948), has no applicability. A meeting, as required by § 46-4 — 8(C), supra, was held by defendants and the proposed transfer disapproved. The plaintiffs made no objections to the form or nature of the meeting, and they were given full opportunity to present their positions. Their only complaints went to the disapproval of the proposed transfer. In my opinion their complaints were not well-founded.
I would reverse, but the majority of the court having agreed on an affirmance of the result reached by the trial court, I respectfully dissent.