*1 306 constitutionality authorities, particular is
by thаt the legislative act legislative open a act is to attack ground complained of.” by person rights a whose are there- affected directly not rights “One whose * * *” Law, Am.Jur., by. Const. licensing operation affected page 748, 111. Sec. may question its statute or ordinance not enough question plaintiffs constitutionality; may con- nor such injuriously jecture injury injustice that an is not one who be raised some action which the board or particular result feature affected * * * future, might, On the its officers complained take of. statute them. hand, a license one who has obtained other issuance of requiring under statute Finding error, affirmed, judgment precedent to license as a condition is so ordered. and it may challenge practice profession, attempt SADLER, BICKLEY, when validity J., BRICE, statute C. license, revoke his THREET, JJ., made under concur. authority although to the con- there is also hand, where
trary. On
on its face
unconstitutional
ordinance
certificate, one
a license
requires such
but who
thereof
the terms
is within
who
application
required
made
has
constitutionality.”
Smith 1265; Eubank, v. State L.Ed. 1007; App. N.E.2d Shinn Okla
Ohio City, 184 Okl. P.2d 136.
homa elementary
“One of doctrines of law, firmly established
constitutional
3Q7 *3 City. each, as the plaintiff sought a declaratory judgment regarding contro- versies between City himself and to the liability liability or lack of City growing out of paving certain bonds issued it and owned him. The actions were consolidated in trial court and the appeals to this Court are likewisе consolidated. The trial ren- court judgment dered City in one case and in its favor in the Effort other. has been parties made below and here to every question raise affect City. plaintiff contends that he is entitled to have his paid by because it was derelict in enforcing collection of certain paving assessments alleges that but for such dereliction on there would Dailey Rogers & M. Bush- and Donald money been pav- nell, ing Albuquerque, Al- fund to all of his bonds. buquerque. aligned Amici curiae interests Prentice, Tucumcari, R. A: and H. C. respective parties, have, as well as Buchly Dunn, Roswell, and W. A. both parties, counsel for the argued orally and Wright, R. Kiker Manuel A. H. A.
E. filed briefs. Sanchez, Fe, all Robert C. of Santa Foul- sayWe at the outset that our con Eberhardt, ston and F. both of Wich- John clusion renders unnecessary to make ita, Kan., Sloan, Rodey, Dickason & declaration as to the correctness of the Mims, Albuquerque, and Frank M. all of judgment of the lower court that plain amici curiae. appeal tiff’s cause of action in cause No. Simms, Seymour, Modrall & Al- *4 4718 was barred the statute of limita buquerque, for Munro. James contends, City tions. The correctly we think, separate that if were ap No.
BICKLEY, Justice. peal permitted it would be under our rule Munro, XVII, assign hereinafter referred Sec. errors committed James plaintiff, complaints question filed against two thus raise it and Albuquerque, notwithstanding any of hereinafter referred whether error
.'310 attempt supply In an ex- committed the absence of been find to have press power authority provide limitations for the plaintiff of statute court, judgment issuance of such bonds these ordinances conclusion оf the trial usually preamble af- contained nevertheless similar in that cause should in appear- of those ordinances firmed. ing in us before and which we record plead- upon the tried causes were quote from Ordinance which was No. facts, witnesses stipulations ings of and passed, adopted, signed approved party. either having been offered day seen, December, which, 26th of were assessments We assume authorizing before Ch. L.1923, was pro- with the validly made accordance in of the issuance this kind of bonds en- was 1919, which 152, Laws Ch. of visions of as follows: acted which, amendatory acts and earlier of “An providing Ordinance issu- for material with some amendments paving ance of Albu- involved, forward were carried issues here querque, Mexico, New exchanged to be Comp, and also the into for a assignable like amount certifi- Annotated, assess- such and that Statutes cates which have been will be issued installments. annual payable in ments were constructing the contractor street and al- recordation provided for the That act ley improvements city. in said that “such the liens “Whereas, Albuquerque, effect have the shall when lien County New Bernalillo and State of may be foreclosed mortgage of a Mexico, proceedings has heretofore taken for provided method now paving improving of certain es- mortgages on real the foreclosure alleys City, streets all in ac- said provided that act that was also tate.” providing cordance the statutes there- municipalities shall governing bodies ;of fix a lien power response such assessments declare “Whereas to thе notice to “and assessed owner or personal contractors to submit bids for the furnish- be a abutting property.” ing performance such materials owners of necessary work construction municipali- authority granted No improvements, proposition said was sub- earlier to issue bonds acts these under ties city by New mitted to the Mexico Con- moneys collected out payable Company, struction under assessments. accept company agreed per six centum lawyers However, par, a plan devised for bonds convenient denominations adopted by prices proposal were in their and ordinances doing named so pursuant plan. furnishing performing to such material of our cities some *5 “Now, therefore, agree all Provided, City would consideration that the work. in- things and matters and and principal herein mentioned to make all collections is- performed.— heretofore assignable certificates done and all terest on inter- sued, principal and pay such and to City “Be It Commission Ordained designated bank be to such as est Albuquerque.” City of the due; and company day on the date said Although apparent it that after and passage 133, L.1923, Ch. was there any longer pre- a need therefor the same “Whereas, consid- 'careful upon due and appears amble No. 338 which Ordinance City Com- proposition, the eration of said purporting is the one the issu- to authorize it determined mission found and appeal ance of the bonds No. involved profit and advan- greatly be to the would 4722. adopted This ordinance property city, own- and to the tage of the approved July 1929. improvements, for said assessed ers be rea- proposition for the accept the said provisions are two ordinances be improvements could said sons substantially except the same in the prop- cost to the a smaller constructed earlier ordinance Sections of such property owners owners, said erty that the earlier ordinance follows: place for time and have a definite would 4. “Section That if the owner assessments of their payment parcel of land assessed im- for the said thereof, plan such a installments delinquent provements pay- shall be in the collecting one central provide for would assessment, ment of installment in- agency, and that disbursing due, duty terest it shall be the thereof owners notify Treasurer such owner in writ- marketable for more receive exists, ing delinquency that such and that than denominations in convenient issued paid if the due is not within amount issued in odd certificates assignable days notice, date of the said after the denominations; and n matterwill be Attor- referred ney collection foreclosure. June, “Whereas, 10th of on the payment payments 5. accepted propo- If “Section City by resolution preceding New Mexico next specified Construction section the said sal D., time, paid within stated 27th of A. is or are not Company and June duty Treasurer it shall with a contract said com- into entered matter attorney, improve- of said construction pany for refer shall be immediate whose proposal compliance with their enforce ments due, together amount collect herein therein and considerations foreclоsure, or penalties, by costs and all mentioned.— whereby proper- which is ordinances any manner now ty sup- respond provided (Emphasis be made to to the delin- law” should quent foreclosure- plied.) provided the method foreclosure *6 the in corresponding sections Whereas mortgages of on real estate. are: ordinances 133, L.1923, Now Ch. act which is the if owner of That the “Section enabling cities to issue the of bonds kind im- said land assessed parcel of the question says here in that case the land delinquent pay- in the provements shall be delinquent payment assessed of the assessment, installment or in- ment of such assessment “the same shall be sold due, be the it shall terest the and the same time same manner as writing notify such owner in to Treasurer property municipality sale in such exists, delinquency if that that such delinquent general taxes.” days paid not within due is the amount Albuquerque Did the council of notice, delinquent of said the date after enacting No. Ordinance have a in the manner will be foreclosed ignore provision to promise en- by may be here- statute or provided now force collection in some provided the foreclosure mort- after ? other manner real estate. gages on place We further observe that at no payment payments 5. If “Section or in anything ordinances the bonds is preceding sec- in the last specified due being negotiable. said about bonds within paid the stated are not tion delinquent property shall be fore- time, the city promised pay It is true the by provided manner now closed the amount of the bonds “to the bearer provided for may hereafter or as statute It is true hereof”. these are in words mortgages on real es- foreclosure negotiability, dicating they but not are tate,” conclusive. “Public Securi Am.Jur. pro- Obligations,” in connection with the Sec. said: ties it is Construed of each ordinance “In with principles Sec. accordance vision receive, empowered payable obligations only applicable that out effect fund, payment may the as- particular enforce be said to be collect by sessments, rule, supported same manner and at the an “in the both unbroken line reason, authority and sound that times as the owner or owners bonds time same negotiable are subdivisions not political certificates issued to assignable law improvements rule of the might re- merchant within cost of Act, Negotiable Instruments even payments” the said ceive, or enforce collect bearer, payable they if made though are method selected in both it seems
3.13 by provisions of cipally, entirely, if fund particular solely out of a payable Ch. L.1923. adequate pay them. never be improvement pay- Thus, municipal question hold- a bond as whether im- only the assessment able out of purchased ef- prior er who a bond negotiable.” provement district are L.1923, date could suc- fective of Ch. if these bonds be claimed that im- cessfully maintain that this enactment negotiable it is because of what are in- paired existing is not here contract L.1923, says, and not virtue of the ordi- suggested volved. It is Ch. bonds, because nances or the recitals plan needed ratification say payable plainly that the bonds plan controlled therefore solely Again, what As special provisions ratifying out of a fund. statute. quoted preamble this, we have express opinion. perhaps
ordinances indicates if failed to cause the con- contracts such ordinances constituted sold, thereby making the property to be con- tracts were between the whole amount of the assessments due drawing solely. tractor It is payable enforce collec- and failed to 133, L.1923) any in- (Ch. the statute many pieces of of the assessments on tion assignees tention to contract *7 districts, paving property in and there- the contractor can be eked out. by collec- the enforcement of the allowed thing which should be noticed Another barred of said assessments become tion (1922) ordinance is that'under earlier the by If as- the of limitations. the respect the collection the duties with by had not been barred the stat- sessments and foreclosure of but had been enforced of limitations ute officers, city imposed property on were property, there have the City namely City Treasurer and the moneys pav- in the collected been sufficient Attorney. Would the be liable for plaintiff’s paid bonds. ing to have funds per- negligent of the officers to omissions failure appears reason that It duties, in the absence of form their they paving assessments as to collect governing body showing that due, will mon- be insufficient there became fail such officers to or re- had ordered proper- remaining ey from the collected Comp. 14-1611. act? Sec. fuse to See plain- paving districts to ties in n -We suggest not mean to do bonds. tiff’s problem foregoing affect the сircumstances pay interest on City continued except the extent that here to be solved assess- many of the after plaintiff’s developed they support a view hereafter paving dis- property on all, ments rights and remedies of that after plaintiff delinquent. The became prin- tricts to be determined holders are the bond 31á City prevented (1) therefor is had knowledge
had that the no actual provisions Article 9 of Section parcels failed to various lots cause the Constitution, (2) 12 of the New Mexico delinquent as- any of land to be sold Act, the Bateman same inter- thereof or sessments or installments any equity reasons likewise bar action in est thereon. for breach of trust. stipulations follow- Among the is the inception ing: “That from the statutory “3. right plaintiff,, each paving so-called districts involved bondholder, exclusive, to foreclose is suit, City in- the treasurer of defendant whether of action for sys- accounting stituted and maintained an contract, trust, breach of for breach of kept tem which of- in said treasurer’s in tort. times; fice, hereto and that at all material plaintiff “4. If is held to have a system pay- this accounting showed tort, recovery action in there- cause of piece ments made on each prevented (1) 'by contributory under paving which a assessment had been negligence failing on his to ex- levied, and that said records showed the statutory remedy ercise his foreclose made, payments amounts of together so bens, (2) by fact reason of the thereof; further, with the dates City in the matters here involved said records at all times showed bal- capacity.” acting governmental in a ance owing on each assessment and the due, dates inspec- and was available for City Since our conclusion is that the by any tion party interested time.” “3”,. proposition correct in its numbered unnecessary we find it stipulated discuss the other' It is also that when the bonds proposition except incidentally. involved were issued the matter of such was not issuances submitted to the vote say beginning well to qualified City provided voters of the italicized, words here used us- by Art. Sec. Constitution of Roswell, Hodges N.M. Mexico. The New contends that P. that “The assumed under facts shown in ei- not liable * * * responsibility than to further following for the reasons : ther cause agreement trust take discharge its relationship That between the “1. steps protect proper the bens plaintiff so far as rights *8 assessments, thereof, make collection herein involved are liabilities concerned or proceeds payment apply the the of purely contractual. are paving (Emphasis sup- bonds.” so-called applied The facts shown plied), “2. here do not be received and re- should breach of contract City, duty the be assumed that the veal caution. do, any they proceeds action apply or if otherwise the being to collected as- the promised bonds is the payment to the sessments enforce the col- to the the lection relationship. a trust But whether assessments. This a is promise relationship may properly perform labeled a very to services except which pursuant nothing trust where is involved the statute to which the duty payment passed of assess- ratified) to enforce ordinances were (or said open perform. which we find questions ments is should rule on call at- unnecessary subject R.C.L., to answer. We is stated in 6 Con- City tracts, that in State v. tention the fact legal obliga- at Sec. 73: “Where a 865, 869, Carlsbad, P.2d 39 N.M. promise tion per- exists a cumulative priority question it, was as consideration, form unless a new numbered rights between different nullity. promise is a A cannot be condi- principal and inter- bonds as between promise tioned thing on a to do a to which emphasized repeatedly And we there party est. already a is legally bound.” statute, principle ordinances In 17 C.J.S., Contracts, it is said: § into contract entered promise “A promisor to do what is rights measure and lia- were sole already bound to do a cannot be considera- was no discussion There bilities. person gets nothing tion if a in re- [and] City’s obligation question of the narrow promise turn for he his but that which assessments; enforce to collect the entitled, already legally is the considera- con- reference “trusts” is Therefore, tion unreal. aas of funds nection with disbursement rule, performance of, promise bonds. payment of earlier matured We perform, existing obligation legal is trustee, “The treasurer is if consideration, except valid where supplied.) (Emphasis a trust.” .this be duty very subject existence dispute.” of honest and reasonable Municipalities are creatures of which state laws text it said: At 111 of same § solely powers are derived there their party per- promise of a “The act Cir., City Carlsbad, 10 Purcell v. from. con- imposed by law will not form Municipal Cor Am.Jur., F.2d promise given for a consideration stitute 111, 112. porations, Secs. the rule is otherwise where return, but scope оf is outside du- such act question ordinances in could ties.” pursuant adopted to law if only must we So, find the promise we conclude to the bond hold they contain responsibilities duties and authority measure in excess of ers any, liabilities, if they are to promises, that and make paving to issue enabled it pacts. But the nude most statute mere extent thus in this action. We involved can from the ordinances gather *9 Constitution, provi- Mexico Art. Sec. So 12. examination to an come 1923, 1929 we hold that the words “not otherwise” Laws Ch. sions of supplied Comp.Sec. should be expressing leg- Comp.Sec. and 1941 .90-1701 amend- islative That incorporate intent. inter- 14-3703, was the pretation City, acceptable consider- of the to our immaterial which is ment holder, bond is manifest from the terms ation. of the bonds which recite: is “This bond author statute which is the This payable solely special out of a fund des- empowered to make cities izes ignated Albuquerque Fund, Paving land to make parcels of abutting containing receipts derived provide for improvements street special from assessments levied to assessments and such payment of terms improvements.” said pay interest deferred the rate bonds the nature issue thereof ments Again consulting the enabling statute here involved. find it is made the of the clerk of completion after the of the work amount of such limits the statute approval by city engineer to file of the total the amount as- issues to in the office county of the clerk a claim pay the cost of the levied to sessments of lien for the amount assessed which a claim and to improvements secure parcel each lot and of land so assessed. for record filed been lien has portion Then follows the of the act which Then follows county clerk. office important bearing has rights body shall governing “The language: parties liabilities of the in the case at bar. such Conditions terms fix It “In any declared: case lot or such however, bonds providing, such bonds parcel delinquent of land so assessed is moneys out of the payable made shall be payment of such assessment or said assessments.” collected principal installment of thereof or inter- est thereon the same shall be sold at the dealing states in some Statutes time and in the same same manner as the employ additional matters words in similar property in such municipality sale of otherwise” so as “and such delinquent general taxes and at such sale “and made to read: express limitation bought property shall be in by such payable out of be made shall bonds such municipality providing there is no other said assessments moneys collected from purchaser therefor.” otherwise.” under our thing bonds statute to be issued The first noticed is that If speak otherwise payable delinquency would be does not were approved by says: unless owner. unconstitutional “In case city. parcel lot qualified electors New land so See assessed as- payment expressed disapproval of such court opinion Orthwein, sessments,” Oklahoma etc. Cir., they pre- 258 F. and said that legislative suggests This ferred opinion to follow the United pay liability is that intent Supreme States Court Moore v. rem and is a ment of *10 Nampa, S.Ct, 340, of 536, 276 U.S. Armstrong, personam. State v. not in See L.Ed. 688 quote and the court went on to 198, 202, the whеre 158 Okl. 13 P.2d language the opin- Judge of Gilbert in his be could judgment court said that if a ion for Appeals, Circuit Court of the city, then validly against the rendered Circuit, Ninth reported in the case Moore indirectly accomplished there be 860, 862, in 18 F.2d as follows: “But the by prohibited positively that which is plaintiff charge seeks to the defendant language the quoted from law. The court liability solely alleged on account of City of Judge of McNiell Broad negligence officers, acts of of its and thus Moscow, as follows: P. 15 Idaho impose upon general taxpayers the agent of the city the village “The or is made city responsibility payment for the local of apply funds as the district to collect and improvement bonds and protec- defeat the expense in discharge of the sessed to the purpose statute, the whereby by of tive The improvement. making curred in such express general terms the taxpayer is re- property, obligation obligation is an of all lieved for the cost of the city munici obligation the or not an of improvement; local there being no con- pality. The contractor and bondholder money tention that the received here was purpose of property for the limited corporate to a diverted purpose, or was con realizing to such the amount due used in such manner as to create an ob- the The duties tractor and bondholder. of ligation on the of the defendant improvement relation to the repay it.” property, fund to be collected from city, of the officers such court, Oklahoma Armstrong provi clearly appear from the various case, supra, say went taxpayers on to act, if the or the sions of the improvement outside the district had a act, city, duty it officers of the whose right to body assume that the governing neglect perform or fail the duties im city would not liability against create a posed by law, this then the them benefit was derived against contractor or bondholder is such by property improvement dis- purpose compelling them officers for trict. act, but the indebtedness cannot point beneficial away property At taken benefited history legislative of the act generally state property and fixed some carefully consid- it was city.” which shows (cid:127)318 subject lia-
ered, make the been intended to own- and a determination bonds bility property the owners ers of but abutting the assessments haz- property all real within the rem is manifest. judg- levy of a taxes to ard 172. It Bill L.1923, was House Ch. ments secured on account (cid:127)passed page House and as- refusal to sell failure or appears: following Senate Journal provided property by the statute. sessed n “House on remain Bill 172 was ordered (cid:127) until prejudice the calendar without succeeding clause the vital The next request of day, upon legislative next governing “In case is said: one. Hedgecock.” Mr. municipality body shall or re- fail such ap- parcel of land page the Senate cause lot At 447 of fuse Journal in- pears following: any delinquent be sold for assessment * * *, hold- stallment then the thereof Relating to Bill An Act “House No. se- er or holders of Pay the Municipalities to by Issued Bonds may foreclose assessment cured such Assessments, read in Special Cost of the assessment lien passage of Phillips moved the full. Mr. provided now in the method amendment following floor bill. mortgages the foreclosure of adopted the Sen- Wright Mr. (mortgaged) real estate.” .ate: *11 pe- recognition of bill, 2, printed language insert This contains page a “Line body fail governing strike out “and” and the fact that the the word riod before or refuse cause the land of the sentence. balance recognition this be sold. The reason of passage Wright moved the “Mr. of. sug- has been possibility is not clear. It 172, as amended.” Bill No. House may have gested legislature bill of the paragraph, first Sec. The body munic- thought governing that the of except that it as enacted presented ipalities neg- might be thus inattentive thereof: the words the end included it lect to cause be sold when per- a declare such assessments be '“and delinquent, through became favoritism liability owner owners of of the sonal capricious indulge fear a to sell. failure abutting property.” were the These possible explanation This does not reflect were stricken out on mo- words very flattering diligence, a estimate of Wright. tion Senator of intelligence and of disinterestedness likely legisla- municipalities. not seem of governing It does bodies An- carefully so guarded opinion ture would view is of reflected liability personal .against Supreme Wyoming owner or Court in Rich- abutting property Casper, Wyo. if it owners had ardson 1, 3, P.2d “It has choice of policy where the court said: ultimately should rest been held does not alone noncollection bond para- holder since his is the duty; show fact mount that in dereliction of interest. legislature The in consti- delаy tuting might under circumstances some governing body municipal- of a beneficial, ity an rather than detrimental instrumentality for the collection bondholder.” authorities.) (Citing enforcement assessment needs imposed could have upon absolute holder suggested that if a bond such governing body. legislature The city could maintain an action might have made this proceeding the sole assessments, failure to collect an interest duty of the governing body .of a munici- ing question might arise as whether the pality. We assume rights that whatever neglect city arose out of indiffer powers the governing bodies have part ence on the or whether respect are derived from the act of the good failure or refusal due legislature and that the bond holder would faith judgment exercise of not have right to foreclose the assess- delay might the belief that re ment liens without an enabling act of the sult in a benefit all to the fund. We legislature. power conferred know knowledge as a matter of common legislature upon body governing of a depression that in frequently times of it is municipality upon the bond holder are difficult to sell real estate for what equal dignity efficacy, dif- perhaps worth and sometimes much for as ference being apparently that the bond as the liens of assessments. We know holder could properly proceed to ex- depression legislatures times ercise except showing have enacted moratorium statutes sus that the had failed or refused do so. pend operation authorizing of the laws enforcement liens real es Supreme Pa., Court of in First know legislature tate. We that our own Catholic Slovak Union v. of Scran passed has even ton, moratorium statute sus 311 Pa. A. held: pending the state to enforce support “Evidence held not court’s estate liens on real to effect the collection finding improve- on street apprehend taxes. We that the ment bonds because nothing had been done enacting legislature in the statute here in payment to enforce of assessments. may have sensed the fact un volved “There was no delay evidence negativing circumstances der some agreement rather than -detrimental between bondholders beneficial *12 legislature may produced have that executions would have bond holder. no- question proceedings of when such that as to the funds or that should concluded improved property, when not sell business to await conditions or de- to sell and bonds, contingencies security for cisiveness of other sole consid- is the «20
ered,
re-
showing
any bondholders
ments
nor
that
for the benefit of such
lands.
city
proceed
or that
law
quested
body
to
on liens
creates the governing
of a mu-
loss
nicipality
not have suffered serious
would
instrumentality
as one
for the
city proceeded
property under
had
to sell
collection of
reposes
existing
power
conditions.”
business
also in a bond holder whose bond
is secured
to
assessment make col-
suggests
thought
This
lection thereof.
requests
bondholders
absence of
rej
If both fail
power
to
exercise
property to
city proceed
to cause
caused,
posed in each and a mischief is
say
to
sold,
difficult
be
it would be
we have such
joint
a combination of
omis
col
nothing
regard
to
had done
say
sions that
it
be
would
difficult
might have
lection of
assessments.
proximate
which omission is the
cause of
(cid:127)considered the matter
concluded
the harm the
there not
bond holder.
Is
existing
then
on. the
be unwise
equilibrium
a sort of
between the two
course,
mean to
we do not
market. Of
omissions which leaves the bond holder
delay
policy
could
such a
suggest that
damages
without
action for redress in
permitting
indulged
extent
instrumentality
run,
but
limitations to
more a contributor to
harm
than him
run from
begins
limitations
statute of
self?
allow
To
the bond
right
holder the
pay
delinquency in
first
the time
procure
judgment against
or
installment
ment of
the assessment
city in such instances would lack the ele
So,
through
lack
if the
thereon.
mutuality
consequences.
ment of
That
attention,
through a mistaken view
say,
idly
is to
if the
may
bond holder
sit
pursue,
fails
best course to
what is the
permit
the statute of
limitations
be sold
property to
refuses to
cause
judgment
run and then
recover a
in order
provided by statute
in the manner
city, the
will
bond holder
have secured
collection, the
holder
bond
enforce
security, probably,
a better
than
substantially
he
four
there
have
holders
had,
will
op
tofore
but
have no
persuasion,
through
to induce
years,
portunity to
itself in
redress
case the bond
un
act,
if these methods are
also fails
holder
to avail himself of the
holders
themselves
the bond
availing
(cid:127)
afforded him.
payments
the as
enforce
proceed to
They
primarily
are the ones
sessments.
and 4th Edition
the 3d
of Dillon on
enforcing
collection
interested
Municipal Corporations,
Sec.
the au-
decision.
ultimate
is the
theirs
problem
says:
discusses
thor
“The
generаl judgment should,
right
statute which
creates a
our
Here
viz.,
limited,
event,
opinion,
collect assess-
cases
right;
new
corporation
improve-
land to create
can afterwards
re-
levied
where
ments
*13
why
taxpayers
by
general
by
For
died onto the
indi-
imburse itself
an assessment.
rection a
of the
burden which could
all be taxed
failure
not
should
for the
directly
approv-
where the been
council
case
without an
to do its
^imposed
ing
taxpaying
vote of
plain
by
the
voters of the
remedy,
manda-
has a
contractor
city
provisions
because
mus,
the
of the
of Art.
compel
make
council to
the
city
Sec.
of the Constitution. And the
necessary
proceed in the
assessment and
taxpayers
will
requisite
thereof
have no sim-
collection thereof
dili-'
right
ilar
to reimbursement.
It is no an-
gence ?”
say
consequence
swer to
this
flows
The writer of a
in 44 Harvard
comment
city
from the
omission
authorities
suggests
Law Review
that Mr. Dillon
duty,
perform a
because the bond holder
5th Edition of
changed his views in the
perform
has himself
failed
likewise
question the
827(2).
We
his work
Sec.
thereby prevent
minimize
the evil con-
event
appraisal.
of this
soundness
sequences.
of uniformity
This lack
in the
apply
here be-
it
to the situation
would
plaintiff’s
operation of
theory prompts
speaking
cause
Dillon was
of circum-
Mr.
rejection.
power
city
alone has the
stances where
Furthermore,
practical
result
(See
make and collect
assessments.
plaintiff
wipe
view of the
is to'
out
page 1257.)
bottom of
by
provision for enforcement
the bond
Thus,
obtain,
if their view
holders.
should
adjudicated
Reading
cases we are
only unnecessаry
is not
the bond
impressed with
many
courts
fact
they
bestir themselves but
holders
have ev-
put
finger
theory
exact
do
erything
doing. By proceed-
to lose
so
may
influenced
but are
what
seem to
says they
proceed they
ing as
law
shall
just
judges.
If
fair and
proceeds
collect
fore-
worthy
permissible it is
of consideration
assessments,
they
closure of the
whereas if
Munro,
plaintiff,
proposes
that what
hang
back
have the chance of catch-
entirely
procedure.
be an
one-sided
city
ing
negligence
gain-
thus
Thus the
holder starts out with as-
ing not the limited amount of the sole se-
parcels
lots and
of land
sessments
curity
entire
intended but the
resources of
security for
bonds and through
as sole
city.
grotesque
This result would be a
a combination
the failure of the
protective provisions
circumvention of the
his own failure
enforce the
collec-
statutes,
constitution,
ordinances and
assessment,
tion of
he comes out with
seemingly designed
shield
judgment against
general
general
revenues
tax-
levy
is enforceable
taxes
produce
who
them.
payers
taxpayers
upon the
there-
well
been
rule is
settled
by he has
reimbursed and
that when a
rewarded
diligence
lack
is created which did not exist at
right
his own
and has
com-
sad-
remedy or in
law,
support,
means of
right a
moil
account
that new
liquor.”
use of such
whole matter
prescribed,
the act
act and
is within
The court
“A
giving
said:
a rem-
exists. See
of either otherwise
edy which did not exist
law not
at common
& Timber
New
Lumber
Wilson v.
Mexico
only speaks affirmatively,
speaks
but it also
61, 64,
Co.,
81 P.2d
N.M.
negatively.
In such
circumstances
*14
provi-
construing
citing earlier decisions
maxim, ‘expressio unius est exclusio alte-
re-
Compensation Act
of Workmen’s
sions
rius,’
particular
has
application.
a
Suther-
injuries,
timely
notice of
quiring
giving of
remedy
land Sta.Const.
325. So far as a
§
156-113,
Comp.,
is
etc. We said: “1929
§
by way
concerned,
of damages
the rule
is
as the
right as well
a limitation
by
that
right
is
when a
conferred
is
new
remedy.”
n
statute,
adequate provision
and an
Actions,
stating:
C.J.S.,
made,
6
enforcement
is
And see
the statu-
§
therein
tory remedy
creates a new
is
a code or statute
“Where
exclusive.”
liability
not exist
com-
right
that did
or
Co., 14
Power
In Grant v. Slater Mill &
statutes,
also
prior
law or under
mon
a
under
R.I.
it
held
that
remedy
the enforce-
provides
specific
a
escapes
remedy
given
is
public
fire
as to
a
thereof,
general rule
statu-
as a
ment
injunction, available
remedy by
also
a
remedy
tory
is exclusive.”
by
case after
individuals an
on the
action
Prather,
Ind.
injury
noncompliance
an
based
In Couchman v.
“1. Burns’
the court decided:
statute will not
said that it
N.E.
lie. The court
that,
Rev.St.1901,
when the
provides
is a familiar rule
where a new
that
§
act,
wrongful
by
imposed by
duty
one is caused
is created or a
new
stat-
death
representative
theie,
remedy
of deceased
given by
ute
personal
if
action,
might
if deceased
have
may
an
or nonfulfill-
have
same statute for its violation
Held,
action,
he lived.
ment,
remedy
an
had
given
maintained
is exclusive.
be maintained un-
proceeds:
inapplicable
action
that an
could
court
“Is
rule
person,
Or,
for the death of
put
ques-
der section
to the case at bar?
by
liq-
reason of
form,
his intoxication
owing to
in another
tion
is the case at bar
by
him
in violation of
exception
be,
defendant
uor sold
rule?
If it
it
law,
though deceased would have
remedy
had
equity,
even
being purely
because the
action,
lived,
had he
but the preventive,
remedy
a cause
is no
injury
for an
al-
limited
given
to that
remedy
section ready
is,
incurred. The answer to that
if
7288, providing
every
that
one who shall
preventive remedy
had been resorted
liquors
intoxicating
season,
sell
violation of law
injury
no
been
any person
liable to
prepared
say
shall be
who shall
incurred. We are not
sus-
injury
person
tain an
property,
entirely satisfactory,.nor
answer is
or
are
plainly
prepared
say
a statute
if
re-
fails or
fuses to
enacted,
assessments,
were enact-
especially
he
if it
enforce the
the bond
may
per- holder
particular
simply
pro-
ed
do so?
giver
for the
The law
benefit
sons,
remedy
equity vided an
which the
alternative to the
under
failure or
refusal,
inadequate
provided
it
clearly'
would be
other alterna-
so
no
tive and
exceptions
in-
have been
presumed
could not be
to the rule laid
remedy down.
prevented
We are
from finding
tended
exclude the common law
evident,' how- other
It is
alternative
exceptions.
action on the case.
ever,
designed pri-
act here was
Many
by plaintiff
of the cases cited
were
only
marily
police regulation, and
in-
aas
decided under statutes which
different
par-
cidentally,
all, for
benefit
if at
from ours.
In none of them
the stat-
did
persons.
It
persons
classes of
ticular
utes
liability
absolve the
combination
when there is
point
pur-
out the
shall be
difficulty
purposes that
arises.
of both
sued
the bond holders in case of failure
case, says
Cooley,
Judge
the-
In such a
or refusal of the
to enforce the col-
neglect of
question
civil
lection of the assessments.
careful
can
be determined
We have heretofore mentioned certain
of the statute.”
consideration
general principles and maxims which we
legislature had
suggested the
The court
bearing
problem.
think have a
on the
remedies,
subject
expressed
itself
may be well to cite
fewa
instances of
*15
individuals,
remedy
and
limited
giving a
application.
their
remedy.
no
therefore
favor
Among the
denying
cases
relief such as
implied. The court went
them
he
of
could
is
plaintiff
here demanded
is Rich-
say
say:
we
that still another
“Shall
on to
Casper, Wyo.
ardson v.
of
219,
implied,
may he
or shall we hold
4,1,
P.2d
where the court had under con-
maxim, expressium facit cessare taci-
sideration the claim that the
made no
turn”?
proper
collect
effort
assessments. A
question
providing
answered the
city failed,
The court
if the
maxim.
holding
neglected
promptly
or refused to
collect
due,
any assessment
the owner of
in our
maxim will aid us
We think this
proceed
might
to collect the
assess-
case
bar. A cele-
consideration of the
at
In that case the court said:
ments.
eighteenth
English
writer of
brated
instances, municipality
a
some
has
“In
freely
century
trans-
said that
be
negligence
liable
because the
been held
as,
down
giver
“where a law
sets
lated
collecting assessments
duty
pri-
was its
of
pre-
plainly
meaning, we
his whole
though
duty,
there was a con-
mary
him
mean what
making
vented from
liability,
of
a
limitation
of
giver
tractual
please
the law
ourselves.” Has not
suffer,
upon
the loss should fall
the one who
implied.
In
part
diligence on its
was
opportunity
has had the
him-
protect
best
only
bar,
contrac-
is not
a
at
there
case
self,
liability,
stat-
and is the most
fault.”
also
at
a
but
limitation
tual
duty of dili-
In
case
utory one.
such
Washington
court concluded that the
far
implied,
least
in so
gence can
contractor or
was the most at
bondholder
means
given
direct
has
Legislature
as
cogent
following
fault
reason-
bondholders,
part of
on the
relief
if,
ing:
apparent
by delay up-
“It is
liability for tort
far as
so
at least
provide
council to
* * *
concerned.
fund,
can
special
gen-
the claim
become
spo-
state,
Legislature has
“In
city,
charge against
di-
eral
it would be
emphatically. Plain-
unequivocally and
ken
rectly to the interest of
warrant holder
knowledge
charged with
thereof.
tiff
delayed, in
proceedings
order
herein with-
give him
relief
cannot
We
might
greater security,
obtain the
that he
Legislature has no
holding
out
possibility
through
of loss
and avoid the
policy
public
establish a
property,
it,
or
a failure
how we can
not see
do
contrary.
doWe
it,
amount assessed
bring the
that.”
are not unheard of. must
such instances
Henning v.
later case of
in mind that he
also
borne
vol-
1271,
Wyo.
57 P.2d
Casper, 50
contractor,
put
and was
untary
reiterated the
the same court
P.2d
general
helpless
taxpayer
condition
con-
after review of
ruling
foregoing
While, perhaps,
district.
outside of the
“These authorities
trary
said:
decisions
taxpayer
general
have com-
neglect
liable
case
hold
act after the
pelled the
officers to
work
But that
assessments.
collect the
refusal to
done,
danger
him
loss to
statute,
when
should,
be true
оur
under
imminent,
contractor or
warrant holder
contractor
is not him-
bondholder
right,
all
had this same
the courts.have
so,
in the case at
true
do
self able to
open
By
been
to him.
the time
force of the
bar.”
contract, such officer should be held to be
referred to
case
Ger
The court
directly
agents
representatives
more
Spo
Bank v.
Sav.
man-American
agents
taxpayers
than the
542, 549,
kane,
P.
38 L.R.
17 Wash.
purposes
assessment,
for the
if
analyzed
pro
having
reasons
A.
taxpayers’ agents
were such
at all in the
holding
holding
or not
con
premises.”
liable
such cases
municipality
and con
*16
tersely
all that
principle
that:
“After
admirably
cluded
can
**
*
done,
right
as a matter of
in Street’s Foundations of Legal
stated
parties
law,
one of
p. 124,
where
two
Liability,
must
Vol.
follows:
being
in-
to know that
goes
“It
where
which was
done
left-
saying
without
jury
damage
premises by
city
undone in
neg-
is attributable to the
treasur-
er,
himself,
ligence
ample remedy
and was afforded
of the
he
no
under
sufferer
has
compel
may
city
the law
action
another who
treasurer to fol-
low the
mishap.
have
A
mandates of the
in
been concerned in
statute
the sub-
jection
property
required
precau-
man is
use
embraced within
reasonable
improvement
payment
his
district
looking
in
out for himself and for
of the
tions
Consequent
levied.
own.”
assessments
the na-
ture of the
law authorizing
Wyoming
Henning
in
case
court
special
their issuance he
had
interest
approved
reasoning
seems
be-
this
in seeing
that the
treasurer made col-
cause it said: “We do not think that a
lection of all
assessments within
permitted
idly
bondholder should be
to sit
improvement
subjеcted
district or
by,
enforce,
bring
without
effort to
property benefited
sale where the
owners
existence,
into
the lien which he has or
pay
tax,
thereof had failed to
whereas
contemplates
which the statute
he should
would,
general taxpayers
in most in-
have,
so that he
have re-
thereafter
stances,
entirely
oblivious
the failure
general
security—the
course to a better
perform
simple
treasurer to
his
city.”
of the
funds
respect
possible
and of
conse-
Gagnon Butte,
The case of
75 Mont.
quences.
Being
possession of all the
1085, 1088,
243 P.
A.L.R.
is facts,
directly
affected
the inaction’
like the case
much
of Richardson v.
city treasurer,
plaintiff
could
Casper, supra. The Montana court
proceedings
have instituted
time to
said:
case
compel
perform
treasurer to
duty after the .assessments became delin-
“Primarily,
of Butte incurred
quent;
ordinarily
whereas
tax-
personal
contractor who
ignorance
payers would be
entire
merely
did the work. was
constituted
existing.”
conditions
instrumentality of the law in initiating and
improvements
carrying out the
and in col-
the same effect is New
To
First Na-
money
due
lecting
Weiser,
Bank v.
tional
30 Idaho
made
benefited
213, 216. The
P.
statute
Idaho
obligations
in order
incurred practically identical with the Wyoming
v. First Nat.
in execution of the work. Windfall
[984]
985,
the taxes his refusal a to convert assessed to improvement improvement against city obligation nor the into general bond a paid city, district, person compel property of the against has nor a who owners paid him, against who have paving abutting the sum for their due from but property, delinquent. property abutting also for that property of ex rel. others.” See State also plaintiff plain, has a “Under said act Lynch McKinley v. District Court of adequate remedy at law speedy, and for County, A. 41 M. 113 N 73 P.2d principal due any interest or collection L.R. 746. property who failed any owner from has city au- pay the made A.L.R. and 51 A.L.R. will true, thorities, and, the writ of be being found as to the that elaborate annotations consequence bondholder municipality issue. The mandate will not a remedy provided by neglect, stat- of its to collect pursue refusal or failure must sup- property from the benefited. Decisions ute.” plemental are available to the thereto also Cir., Ada, 61 F.2d Powell student. points interesting is case. give Oklahoma that statutes plaintiff out Counsel for referred to cases lien of this nature a purchaser Wyoming, Idaho, of bonds from the Illi- states proceed but property nois, Alabama, specific no Florida relied on and others lien, 'and enforce the name to having in his own been on based futility attempting to pointed out the peculiar statutes of those states and many because involve cases thereby inapplicable review these decisions statutory diversity provisions, and argument plaintiff’s a Pursuing here. says: facts case: under concluded counsel conclusion, facts, under these “It is our typical believe that “We cannot now maintain an ac- appellant 49-2728, (Sec. of the Statе Idaho city. against damages Where tion for provides: ‘The I.C.A.) which holder of re-assess, power statute confers authority issued of this under power claim that no there is where against therefor chapter shall have claim lost, special improve- holder of has been municipality the same is- proceed compel first should ment event, sued, except the collection duty. ap- do their for officials im- assessment made special only property pellant’s lien extends issued, which said bond provements district; improvement he does remedy, nonpayment, in case of city. all but property lien the enforcement of such by appellant confined shall be contended would en- rule ” ours.) (Emphasis city officials, by neglect assessments.’ mere or a sim- able says respondents sort that statutes of this recognize Counsel far in so as the “specifically liabil initial security concerned, absolve from no claim could ity” quotes city, Richardson v. made from supra. appraisal Casper, district, think the We and this is correct.” counsel is incorrect. The italics show The court proceeded nevertheless to hold that the was not absolved all lia liable for the defalcation of its post. bility. City, And Cruzen v. Boise see officers who had collected and embezzled the *18 We think all can be claimed for the proceeds of the assessments. municipality was quoted statute is that the appears present prob- to us paying absolved from oth lem should be worked out more on the line proceeds from the of the er manner than remedy than actions on basis of construing our statute we assessmеnts. In substantive law or we what consider City Albuquerque, v. said in 43 Munro controlling equities. to be the The right 993, 334, 997, substantially N.M. P.2d 93 is to have the assessments enforced. Yet in Richardson that was said v. thing .same right the assertion of such controlled is supra. said: Casper, We “We exclusively by the act which created the are the have said that ‘the assessments right and can asserted alternatively by be payment. only for resource’ bondholders’ city or bondholders. See Silvia v. City of rel. Ackerman v. Carls State ex Scotten, W.W.Harr., Del., 295, 2 122 A. 865, 352, bad, 47 P.2d 868. N.M. We 39 513. in that case there no said further The statute is notice to the ‘the only and that debt be secured to rights his bondholder of and the limitations fund according handle obligation is to can be no thereon. There doubt that contract,’ parties and that all to right has a himself bondholder to enforce chargeable notice of the statutes and collection assessments or any install governing.” ordinances city ment thereof case fails or re city might that a did not mean This property cause the to be fuses to sold in damages some circum- liable for under provided by statute the manner to collect perform to negligent a failure stances for the assessments. assumed, duty where statutory it has potential has a If the bondholder cause of spe- been remedy had to the bondholder upon which accrues action failure or re- .the supplied. cifically act, city obligation to fusal City, necessarily imposed upon 58 Idaho him being
In Cruzen v. Boise suf- diligent had P.2d court to ascertain ficiently 74 when the by plaintiff under considera- He cited of action accrued. cause cannot sit cause of stating idly by the contentions of thе until his action is lost tion. words, upon city parties the court said: “In other then tax- call payer pay loss, any, by causing if to is enforce collection property neglect. chargeable to be per- to his own stat- sold. The bondholder will say: having provided pay ute mitted bondholder with to will “I no attention my own puts certain circumstances to foreclose under security which is inquiry my him on whether such circum- bond. So as to long paid will Ryan, steps as interest is have See v. I take no arisen. stances Johnson security my to see that the (Syl. 6). P.2d 43 N.M. As is not jeopardized. seen, I shall Gagnon neither ask the the court proceed Butte, duty by legal nor act coerce it supra, pro- it was said ceedings keep do I long so. If still keep bondholder to of what was informed enough city may fail premises or refuse to undone in the move being or left done on assessment until it is City of late city, Carls- too Purcell v. do Then 748, 751, either of us to I will bad, Cir., the court so.. look to F.2d express repair taxpayers and its to find that it was unable harm done me.” Carlsbad imposed upon the duty county liens with the file the assessment While the failure statute. The clerk as authorized interest afford notice to the bondholder was, say: if there on “But court went something wrong, and be sufficient duty corresponding imposes law .the put inquiry, bondholder this is compel the holder to certificate not the means which the bondholder requisite statutory perform chargeable with notice. Nor is the fact damages. a suit maintenance *19 city pay continued the to interest on the deciding, Conceding, without plaintiff’s until bonds after the statute of 82- Section authorized Carlsbad limitation had run the collectiоn of the de- liens the 303 to foreclose .a controlling factor as show assessments, and the same linquent ing lack of notice. Under some circum certificate hold- imposed upon the duty was permissible city stances it is for the to con timely duty act to under it was er and bond, pay tinue even though to interest the statute, and to either the provisions of might fund not eventually be sufficient to perform city its contrac- to mandamus principal both and interest. We think duty, or institute statutory to fore- tual or city’s contention obligation, its if in his own name.” proceedings closure any, being to enforce the assessments which was bound many The bondholder to take are number, necessarily it in follows (cid:127) perti city records and respect the failure notice to each .assess separate circumstances of whether action, nent to the as- ment is a cause of is sound. delinquent and whether sessments were the So harm to the bond holder occurs steps city had failed refused to take when to assessment is and it steps protect might duty is his take himself he to to have indicated that decline to take city prop- Also, suggested if the or refuses cause the fails the risk. it is erty buyer imposing to be sold. bond would not be too un- requirement upon reasonable the seller the city The risk that the will not act to en- obligation investigator acting as in- force assessments is the collection of the doing formant as to what buying hazard the bondholder takes premises. leaving undone in the just bond. be fair This not holder, many appear judgment appeal and it The cause No. 4722 is not to But it is result which the be. reversed and cause remanded. language clearly the statute indicates judgment appeal cause No. 4718 intent, legislative have no choice stated, affirmed the reasons herein legislature
but to observe it. The has tried given not reasons district by plac- the bondholder’s risk minimize court, the cause is remanded. ing plain, speedy in his hands a and ade- It is so ordered. quate remedy. sympathy sought Much evoked MABRY, J., ARMIJO, LUIS E. urged upon for the us bondholder. Judge, District concur. that when the issued it bonds were must necessarily have been within contem- SADLER, (dissenting). Chief plation parties that of all the bond- Justice would be to the four holders scattered prevailing law declared corners of the earth and would entitled opinion appeal disposing of No. 4722 strikes perform rely upon promise to municipal a blow credit in New Mexico obligation its be under recovery deadly that so therefrom will city. constantly up check This century. not be within half witnessed At claim will bear examination. some As we operates time bring the same it about a seen, the contract was between complete destruction investments contractor, New Mexico hundreds, more, people if our Company, who Construction took throughout all walks of life scattered constructing exchange improve- savings instances their nation—in some life individual ment. If seemed bond- faith an admittedly on the un- —made bought his bond from holder who the con- promise fulfilled of certain mu- keep a task too arduous tractor informed nicipalities Nevertheless, over the state. being as to what was left done or undone contemplation of a so result harsh and so treasurer and other unjust properly disposition officials cоntrol cannot *20 respect enforcing us, appeal collection of if the of before conclusion assessments, good judgment inescapable. business The majority reached feel be 330 80; 115 F. an abid- P.2d Atchison & S.
such
case here.
I entertain
re
T.
is the
345;
reason,
Taxes,
R. Co.’s
N.M.
weight of
P.2d
ing conviction that
138, 139;
precedent, includ-
1277.
logic and
38 A.L.R.
well-considered
Am.Jur.
court, sup-
ing
of
unreversed decisions
this
rests,
upon
Another slender reed
contrary
port
directly
a conclusion
part,
in
nonlia-
ultimate conclusion of
This, I
majority.
one
announced
bility
opinion
prevailing
announced in the
shall
demonstrate.
endeavor to
is disclosed in the
from the
effort to deduce
language
giving
of the statute
a bondholder
opinion
early
prevailing
stages
In its
foreclose,
doesn’t,
if
support
conclusion later to
seeks
for the
very thing
license in the
to do the
en-
announced
find
failure
language
which the
condemns.
relied
statute, authority for
act,
paving
abling
Reference
following language
is to
city. Fail-
imposing
liability on the
general
statute, L.1923,
c.
“In case
to-wit:
authority,
the conclusion
ing
such
to find
body
municipality
the governing
such
exist. Of
arguendo
it does not
is that
shall fail
any
or
lot
refuse
cause
or
course,
authority
is to be found
no such
parcel
any delinquent
of land to be sold for
contrary
to the whole
the statute.
assessment or
in-
installment
thereof or
improvement
philosophy
special
plan and
thereon,
terest
then the holder or holders
that the
credit of
any
bond or bonds secured
such as-
pledged for the retirement
city shall be
sessment
foreclose
lien
the assessment
Any
bonds.
effort so
special improvement
delinquent
in the method
property
such
inhibi-
constitutional
would violate
to do
provided by
foreclosure
now
statute for the
Fe v. First National
City of Santa
tions.
mortgages
real
857; Henning
(mortgaged)
estate.”
130, 65 P.2d
Bank, 41 N.M.
Springs, 44
Hot
N.M.
v. Town
Obviously,
language recognizes
25.
P.2d
refusal
to foreclose
failure
-
plain duty
default
for theretofore the
argument
support
fallacy of this
appears,
enforce
“In case
liability
to-wit:
in the fact that
lies
opinion
enforced, viz.,
parcel
such lot
of land so
sought to
assessed
here
kind
payment
trustee,
of such assess-
arises not
breach
And, ment
installment
principal
the statute.
there-
but outside
within
or interest thereon the
authority,
same shall be
including
sold
overwhelming
some
own,
such
the same
and in
not at
time
the same
our
manner
decisions
property
statutory
sale of
municipality
or constitutional
as the
such
limita-
within
delinquent general
creation and
taxes and
touching the
amount of
at such
tions
bought
shall be
Barker v.
sale
municipal
indebtedness.
State
246;
municipality providing
39 N.M.
Napoleon,
P.2d
there is
ex rel.
Harris,
purchaser
rel. Martin v.
ex
45 N.M.
therefor.”
State
*21
impresses
guage
a strained
un-
It
as
and
removed to
one
immunize
act
imputation against
successful
warranted construction
attack on constitutional
wholly
grounds,
intent
for-
legislature
having nothing
of an
to do with the
opening
question
McQuillin
that in
its
eign to its mind to hold
before us. 5
on “Muni-
default,
cipal Corporations”,
guard against
737,
2238;
author-
mouth
2d Ed.
§
Quite contrary Ivanhoe
Enterprise,
v.
ized and licensed default.
29 Or.
45 P.
and as we ourselves have
35 L.R.A.
such intent
note.
case
held,
special improve-
theory
the whole
Having demonstrated,
feel,
Ias
the un-
contemplates prompt payment
ment
soundness
irrelevancy
of the several
assessments, principal and
and collection of
auxiliary considerations,
upon by
drawn
interest,
punctual
retirement of out-
the prevailing opinion
support,
for its
Any
standing
they
bonds as
mature.
other
part, we
legal proposition
turn now to the
theory
insolvency
acknowledge
of a
upon which it bases chief reliance for its
from
start
in effect
paving district
correctness.
opinion
The
sets forth four
operate as a fraud
investors. See
on
State
separate grounds
nonliability
Carlsbad,
rel. Ackerman
ex
city’s part as
advanced
its counsel. -Aft-
impute
N.M.
:by employer persuades some cases him to delay filing to the doc perverted application timate claim until it is too late—un- a funda til it upon, therein lies is barred trine relied limitations—to bring provided support analogy closer mental weakness case. Would it opinion. held majority for.the overlooks by this court that workman at the could not controlling damages mentioned recover consideration the em- ployer recovery is not agree- outset of in deceit for this dissent that breach of the ment compensate? predicated my not arise According on the statute—does *22 understanding recovery authority opinion, to be majority for such holding a would rather be stems inevitable. found in the statute—but trusteeship—a tort—and a breach of suppose Let us another case having to do body of law for residing with duty paving a trustee under as a redress and the rights the vindication Suppose money bond issue. sufficient wrongs. by city retire the bond issue is collected court, Ritter officials embezzled. recently Could A decided this it be suc- case Co., cessfully judgment maintained pay- Electric 47 that a Albuquerque & v . Gas my city’s general able from the 919, will was 142 P.2d illustrate revenues N.M. unwarranted and not to point. been more thor be sustained? No doctrine has Ob- viously, yet, could And, than that it not. by this court oughly established one look in vain Compensation authority Act creates in the the Workmen’s remedy. recovery. The provides a a a new a .remedy held to be has been decided, Every has cáse which this court Employers In American Taylor v. right. them I have cited several of herein- 544, 3 Ac Co., P.2d 76. N.M. 35 surance above, holding judgment for tort Taylor case that in the cordingly,, we held corporation municipal is not with- the time , could not waive employer Act nor interdiction Bateman estoppel by create filing claims nor limit on proscribed by statutory limits for mu- debt the time. toll or conduct actions nicipalities, argues against the soundness of nevertheless, case, upheld Ritter In' the majority announced in the position affording forbidden as not agreement opinion. Certainly, the Bateman Act is no pro remedy outside that employee a 'the in its less forceful restrictive inhibition he could enforce act said vided against contracting a debt in excess of cur- claiming barred from or, rather, not 'it revenues—indeed, rent more it is so—than its breach. damages restriction, correctly implied, is the in the n enabling suppose pay- a case wherein a work- statute here involved Let us injury—the of an arm loss or ment of bonds from suffers source man n Thrqugh promise proceeds special a fraudulent than leg-.. assessments. 863; Trusts, 96; est ex- L.Ed. on “expressio unius Scott § doctrine 86; support McQuillin alterius”, the 34 “Mu- here on clusio invoked Amer.Jur. nicipal announced, Corporations” num- large invoked and a be could holding scarcely logic reason to sustain less ber others which could cited. payment prohibiting the Bateman Act So, accepted it be taken as an doc- will judgments. tort Act assured- Bateman major- trine in jurisdiction, which the municipal indebtedness ly has ity displeased repu- seem with but do not not from current revenues and paid shall be diate, acting as trus- debts in ex- have held that We otherwise. acting, prime tee. So its as one duties here are void. If the doctrine cess thereof trustee was to enforce collection of majority defeating lia- relied paving se- certificates which formed bility proscribing urged ever been has curity It behind the bonds. is an admitted the Bate- judgment under payment aof tort per- fact that defaulted upheld, been Act, certainly
man has formance of this large as to num- Harris, Napoleon T. and Atchison delinquent properties bers of continued supra, Railway cases, stand cited & S. F. default until became lim- barred subject. of this State on the law as the itations. stipulated It also as a fact this case: defendant, City “that if the my understanding Albuquerque, had not assess- allowed the goes sug opinion so far as prevailing ments on the properties numerous here- City of Ros Hodges gest overruling inabove mentioned to and become barred 310; well, ex P. State 31 N.M. by the statute of limitations of State Carlsbad, 39 N. rel. Ackerman v. *23 Mexico, New of and had enforced the col- 865; Lynch 352, rel. M. P.2d ex 47 State against lection of assessments the 658, said Court, 41 73 P.2d N.M. v. District properties in said accordance the with 746, 333, holding A.L.R. 113 terms of the ordinance and the said and statutes paving under or a trustee bond, there have been would sufficientmon- we us. The have before such as dinances ey paving applicable in the collected fund respect in this is to opinion does most the paid of bonds to have to this series accept say with “caution” what should full; principal plaintiff’s bond in of of cases on sub some these is said in $ *» * However, any admonition of cau ject. quite in amiss when tion seems considered stipulated that interest It is further all foregoing authorities and of light here coupons on bond involved were Fe, Cir., 10 Gray City of 89 v. Santa regularity, the first default paid with due 406, Fe, Gray payment prin- v. of Santa occurring F.2d in of the 374; maturing on cipal of the bond Cir., New amount 10 135 F.2d Or Warner, May 20 1940. 175 U.S. S.Ct. leans v. Kilburn, supra, this plain- decision in except as this Altman v.
It thus results that bond of the in court. The case would not be charged with notice tiff is to be city’s today holders losers find themselves the city’s by the condition default municipalities, prop- propositions. both on disclosing paving accounts foreclose, primary duty de- whose was to notice erties, actual had no he defaulted, par- having of the de- place. relieved taking linquencies were Indeed, fault, paved using enjoying re- while stipulated. so ties have paid savings on streets of others of interest ceipt regularity land, delinquencies over hundreds of whom will nev- him would bond reassure er their in- portion relieve him receive back occurring and were contrary if oth- vestment. notice to constructive McLaughlin chargeable. erwise Furthermore, present paving when Cir., F.2d 402. Turgeon, v. municipal improvements financed special many property reason for assessments one No doubt require present replacement defend- benefited and recon- defaults admitted struction, foreclosures, the municipalities was will themselves commencing ant gen- (so first to feel entertained harmful effect generally then belief today’s amount to holding. toas There is sub- long continued no known eral stitute, by municipalities municipal short taxa- construction practical indebtedness, improve- limitations stat- tion for civic public opin- dissenting by special ments financed pointed out utes), as Kilburn, 45 N.M. Altman benefited. With ion in was there collapse pur- A.L.R. plan practical of that for all P.2d applicable to of limitations a poses, way want feasible certifi- paving same, to foreclose financing towns cities city’s in the brief thought is echoed This New Mexico will face almost insurmount- cates. city’s counsel the case accomplishing difficulties in able future filed course, “Of municipal improvements statement: bar, today’s after deci- to the assessees say, limitations furnish sion. would no answer to decision expected.” undoubtedly generally result, of such a avoidance disastrous However, decided the the Altman case privilege omitting in the bond they say contrary what following holders to foreclose default law behalf, “generally expected” in that legislature, agree I mandatory years make duty of action more than could all causes four behalf, previously nonperformance had existed either of which old give or in the holders were rise to recoverable damages. *24 already suddenly found to be barred. But for the If is not mandatory,
335 demonstrates, opinion as we think ordinarily this enforce would be into any language strong. simple it inject is difficult to truth is that the de- legis- pression rendering more certain changed the sense re- of relative * * * sponsibilities. con- it to be so intent lative sidered. “Arrangements where the are sanctions part moral, knowingly legal, Nevertheless, stated, already if no are not at all uncommon in ordi- supportable than that an- conclusion nary dealings Though of mankind. reached, majority can nounced disappointment often lead gen- and are results, regret- these unfortunate however erally profession, advised our table, been cannot It has be avoided. we all know that deals made are often' demonstrated, opinion, pre- my that the party says in which one things he will do opinion a mis- vailing is bottomed but legal responsibil- refuses to assume that where application the doctrine ” ** * ity not doing so. a new legislature creates provides remedy, invoking those The trouble with this statement of coun- remedy supplied. right are confined to the sel is that the assume legal did re- support correct- gone, With its main sponsibility in the matter of these col- ex- ness announced is of the conclusion lections enforcement thereof and posed challenge. to serious permitted escape it not be should lia- bility plea on the it is a moral city lacks Certainly, position responsibility. responsibility If a moral support of moral sanction. The only, is difficult to understand how practically admit as counsel themselves employed enforce mandamus mitigate the harshness Seeking much. remedy court performance, its position taken in the face of the held available to and other courts perform- many defaults in the admitted Lynch ex rel. State v. the bondholder. following agreement, trust ance of its Court, 41 N.M. 73 P.2d District brief, palliatory language found in 746; Gray A.L.R. of Santa to-wit: 406; Cir., Id., Cir., F.2d Fe, Only legal rights clear 374. 135 F.2d if the said: we can’t “It was as by mandamus. Carson Recla- enforceable but by contract collect pledge ourself Vigil, 31 office, District v. N.M. main- mation .say will establish we we instance, know of We nor records, receive disburse P. 907. tain any, undertake, cite contracting where the funds, without counsel do performance so, collections, enforce employed to enforce to do you obligation. While prevailing latter col- if fall down moral approval lend obligation words moral does opinion yourself. lect *25 336 collected, city’s re- subsists and appraisement the
to counsel’s
of
in
only, it does so
of
sponsibility
the certificate
for
as moral
holder or bondholder
nonliability
part
holding
diligence
lack of
of
effect in
of
its
City
compel
to
them
city’s part
officials is mandamus
a breach thereof.
for
to
collec-
assess or reassess
enforce
by
ex-
party
driven
Whenever
is
tion.
he is
plead
igencies
his case to
of
bound,
City is
where
legally
“On the
hand
obligated
morally
not
but
of
power
ground
levy a valid assessment
without
to
some
look for
time
no diffi- or
assessment
has levied an invalid
is here
there
legal liability and
by
reassess,
abun-
it,
supported
power
or has
culty
without
finding well
v.
permitted
New Orleans
City
duty,
as
authority.
neglect
of
of
a valid
dant
44,
L.
44
expire
20 S.Ct.
Warner,
uncollecti
175 U.S.
sessment to
and become
Fe, supra;
96; Gray
ble,
Santa
City
City
v.
of
is liable
breach
Ed.
of
Tur-
McLaughlin v.
Id.,
City
of
debt
supra;
or
evidenced
contract
Inv.
402;
Cir.,
Bessemеr
(Emphasis mine).
F.2d
geon,
75
or bond.”
8
certificate
Cir.,
Chester,
F.2d
Fe,
Cir.,
113
City
City
3
10
89 F.
Gray
Co. v.
Santa
v.
.
Hubbard,
Ky.
234
571; Stephens
v.
2d
411
City
665;
Cas-
v.
Henning
27 S.W.2d
Albuquerque
this test the
Under
304;
1264;
1,Wyo.
62 P.2d
57 P.2d
per, 50
plaintiff
permitting
liable
Corporations”,
“Municipal
McQuillin on
suit
to outlaw a
limitations
Re-
;
Flarvard Law
Ed., 126,
2428 44
§
security
furnishing the
foreclose the liens
annotation
610;
extensive
view
for his bond.
A.L.R.
in 51
1271, supplemented
38 A.L.R.
Casper, supra
Henning
v.
[50
discussed
cases are
937, where innumerable
Wyo. 1,
1268], dealing with
57 P.2d
analyzed.
briefly
situation,
Supreme
somewhat similar
paving
involving
opinion
able
In an
following
made the
Wyoming
Court of
Fe, pre-
Sante
bonds issued
remarks,
pointed
pertinent
the situ-
very
Phillips
the United States
siding Judge
hand-
this
ation before
court on
eve
this,
Appeals
Court
Circuit
ing
mu-
decision
down
historic
Circuit,
down the rule to be
laid
Tenth
State,
nicipal
life of
to-wit:
an
“If
n
as follows:
from the authorities
deduced
money
another
give
individual
been made
no assessment has
“Where
supposedly
obligation
for a
valid
return
remains,
still
to assess
power
but
instrument should
writing,
written
invalid assessment has been
invalid,
where an
turn out to be
no court would hesi-
power
exists,
to reassess
making
possi-
made but
recovery
tate an instant
an assessment
Principles
where
has
been col-
justice
honesty
ble.
due
fundamentally apply
individuals,
but the assessment still
lected when
munici-
holder would
alike,
lature and
and should
states,
palities,
and Nation
any right the assessment
foreclose
alike, unless constitutional
applied
legisla-
enabling
act of the
liens without
Municipalities,
statutory
forbid.
provisions
legisla-
power conferred
ture. The
Legislature
true,
creatures of the
it is
are
munici-
granted
upon
governing body
of a
powers
ture
only
and have
prohibited
are of
them,
things
pality
bond holder
and cannot do
efficacy,
Tobin
differ-
by law,
equal dignity
the first
held in
Council,
P.2d
holder
Wyo.
ence
apparently
the bond
being
Town
not,
ought
properly
But courts
could not
exercise
proceed
vincingly are not complete legal furnish defense efficacy. respondent mandamus for the to answer: statu- fairly said that can it How yourself—the duty “Foreclose foreclos- tory in the bondholder foreclosure ure residing you per- great is as its efficacy, as rank, high dignity is as by you formance im- as efficacious as that imposed foreclosure mandatory duty posed upon your me. Proceed on own ac- so much never city, the one when count.” until, through either being as comes into opinion and can- prevailing has inaction negligent mere or deliberate these satisfactory furnish a answer to duty, the breath party charged with queries. very fact that mandamus can right? How life is into the blown will lie at the suit of the bondholder efficacy when equal considered of compel foreclose fastens certificates possession lien of all holds primаry duty city. foreclosure on sought given it is whose foreclosure And once it primary is conceded that the bid in the express statutory authority to duty city, rests on all the trustee for the benefit breach abundantly thereof is established. And, ironic it not bond holders? secondary statu- speak bondholder’s Much opinion is said in prevailing nonperform- arising tory privilege supposed of a possessed advantage unfair being city’s primary ance of by the per- bondholder in standing fact efficacy, the known in the face of equal mitting the statute run of limitations to scattered to bondholders thereby gaining security never con- act and must the nation four corners templated by tax- statute—the all, only long after concertedly, if at *27 power ing city. back It all comes inter-communication, organiza- extensive question primary where rests committees and holders’ bond tion duty city, of foreclosure. If it rests on the litigation? to finance funds collection demonstrated, as has been then all the perform good need do is to in faith pertinent questions few but a are These mandatory duty foreclosure and the supplies opinion prevailing to which position bond holder never will be in whose But there is another still no answer. stand limitations run watch on conclusively establishes answer correct foreclosure, right disposed. if so majority assertion fallacy that If, city’s beginning, duty and the are right entertained bondholder’s efficacy. they duty If the ideas now that dignity and advanced it equal' on absolute; theory so, legal may what is not that upon arising bond- compel mandamus to the bond holder after its default is equal holder duty may dignity imposed an act himself do rank and with the perform which he
33» it, rehearing, for being as a trustee good Court now suf- faith on its notify ficiently upon premises, it to advised in would seem called Chief to have Jus- SADLER, repudiating MABRY, tice it Mr. Mr. holders Justice BICKLEY, protect Judge the trust District WIL- order Justice LIAM Orleans v. City of New BARKER and District Judge themselves. Cf. J. Warner, ordered, no- LUIS E. supra. sitting, Not was no such it is ARMIJO holder, given adjudged but plaintiff, tice a bond motion decreed him seasonably rehearing hereby continued and the same is denied. interest, collected, up which it had not installment, very lulling him thus last Chief District SADLER and Justice per- security, while into sense of false Judge dissenting BARKER WILLIAM J. bar
mitting limitations to from such opinion on action written file properties. I foreclosure on herein. reasoning cannot approve either wrong- authority will absolve SADLER, BARKER, Chief Justice such circum- responsibility doer from Judge (dissenting). District stances. minds, Because to it follows night our 4718, by the As affirmed appeal No. the day in damages results for given majority, reasons “not for the very duty per breach of the whose samel court”, the reasons the district but compelled by formance mandamus 4722, my appeal No. disposing stated (State Lynch rel. Court, ex District v. 41 ma- disagreement naturally persists. N.M. 73 P.2d 113 A.L.R. 746 jority complaint filed below hold the Fe, Gray Cir., v. of Santa judgment in us review of before 406; Id., 374), namely, F.2d 135 F.2d appeal a cause state No. fails statutory contractual fore city. all rea- For action punctually delinquent paving close assess opinion, my given, sons heretofore ments, especially more where the obligor does. (Hodges Roswell, a trustee v. I dissent. 310; 384, 247 ex P. State rel. N.M. Acker Carlsbad, v. 39 N.M. man 47 P. BARKER, Judge, District con- WM. J. 865; Lynch rel. ex State 2d District curs. P.2d Court, 41 N.M. 113 A.L.R. Rehearing. On Motion rehearing favor a 746), disagree action of the having majority causes hereto- with denying The above-entitled submitted on therefor. been heard and motion motion fore