Henning v. Town of Hot Springs ( 1939 )

The question is whether the appellant, Town of Hot Springs, is liable as conditional payor on certain sewer certificates issued by it, as provided by Secs. 90-2301, to 90-2308, inclusive, of N.M.Sts.Ann. 1929.

Each of the certificates provide in substance that the Town of Hot Springs, for value received, promises to pay to the bearer $500 at a specified date, with interest at six per cent per annum, and further:

"This certificate shall be payable from money received from special assessments levied to pay for sewer improvements, but any deficiency in the fund to pay this certificate or the interest thereon shall be paid from the general revenues of said municipality.

"This certificate is issued for the purpose of paying the cost of constructing sewer improvements in the said town under and by virtue of Sections 3705 to 3712, inclusive, of the New Mexico Statutes, Codification 1915, and all other laws of the State of New Mexico thereunto enabling, and it is hereby certified and recited that all requirements of law have been fully complied with by the officers of said town in the issuance hereof, and that all proceedings and things with reference to making said improvement, to the fixing of the assessment lien against the property improved, and the issuance of this certificate, have been lawfully taken and performed, and that said town has agreed to collect and enforce the payment of said special assessments, and in the event it becomes necessary to foreclose the lien of such certificates to do so at the expense of the said town."

As we view it, every question presented in this case is settled by City of Santa Fe v. First National Bank in Raton, 41 N.M. 130,65 P.2d 857. Appellant and amici curiae insist, however, that there is a vital question in this case, not presented or decided in the Santa Fe case, which is stated in the brief of amici curiae, as follows: "In this case, it will not be questioned that the promise in the securities in suit to pay deficiencies from general revenues was an attempt to create a municipal debt, in the constitutional sense; nor questioned that if such promise was not preceded by the required election, the promise and the debt were void. Our position is that the omission to hold the election, attempted to be asserted here as a defense, is a factnot in this case, and which can never get in; for, by recitals in the securities, legally importing that such election was held, Appellant municipality is estopped from asserting the contrary."

Amici curiae agree, and we have held (City of Santa Fe v. First National Bank, supra), that these sewer certificates are debts within the meaning of Sec. 12 of Art. 9 of the Constitution of New Mexico, which is as follows: "No city, town or village shall contract any debt except by an ordinance, which shall be irrepealable until the indebtedness therein provided for shall have been fully paid or discharged, and which shall specify the purposes to which the funds to be raised shall be applied, and which shall provide for the levy of a tax, not exceeding twelve mills on the dollar upon all taxable property within such city, town or village, sufficient to pay the interest on, and to extinguish the principal of such debt within fifty years. The proceeds of such tax shall be applied only to the payment of such interest and principal. No such debt shall be created unless the question of incurring the same shall, at a regular election for councilmen, aldermen or other officers of such city, town or village, have been submitted to a vote of such qualified electors thereof as have paid a property tax therein during the preceding year, and a majority of those voting on the question, by ballot deposited in a separate ballot box, shall have voted in favor of creating such debt."

Amici curiae cite Southwest Securities Co. v. Board of Education, 40 N.M. 59, 54 P.2d 412, 415, in support of their plea of estoppel, in which we stated: "If the municipality had authority to issue the bonds at all and the facts authorizing their issue are certified in the bonds, the district is estopped to deny such facts. Board of Com'rs of Gunnison County v. E.H. Rollins Sons, 173 U.S. 255, 19 S. Ct. 390, 43 L. Ed. 689; Board of Com'rs of County of Chaffee v. Potter, 142 U.S. 355,12 S. Ct. 216, 35 L. Ed. 1040. But if the statute requires a public record to be kept which contradicts the recitals in the bond, the rule does not apply, and the district is not estopped to contradict the recitals in the bonds by the record. Sutliff v. Board of County Com'rs, 147 U.S. 230, 13 S. Ct. 318, 37 L. Ed. 145."

They cite Coler v. Board of County Com'rs, 6 N.M. 88,27 P. 619, to the same effect.

Sec. 12 of Art. 9 of the Constitution confers no power upon municipalities to incur debts. It is a limitation upon such power and is not self-executing. Varney v. City of Albuquerque, 40 N.M. 90, 55 P.2d 40, 106 A.L.R. 222; Lanigan v. Town of Gallup,17 N.M. 627, 131 P. 997.

If the Town of Hot Springs is liable to such certificates, we must find statutory authority therefor consistent with Sec. 12 of Art. 9 of the State Constitution. These statutes, so far as material to a decision of this case, are as follows:

"Whenever it shall be necessary and proper in the opinion of the city council or board of trustees of any municipality in this state, * * * to have constructed and maintained a sewer or sewers in said municipality, * * * they shall, by resolution, entered of record, declare the same, and shall cause to be prepared by the city or town engineer, * * * a map of the proposed sewer district, together with the lots or pieces of land situate therein, * * and shall direct said engineer to make, under oath, and file the same with the city or town clerk, a carefully prepared estimate of the approximate cost of said sewer or sewers, and upon the filing of said estimate, said city council or board of trustees shall elect what portion, in whole or in part, of the cost of said construction shall be paid from the general revenues of the city or town, or what portion, in whole or in part, shall be assessed against the lots and pieces of land situate in said sewer district and abutting on the line of said sewer or sewers * * *, benefited by the construction of said sewer or sewers, with the power of issuing bonds to realize money to pay for the construction of said sewer or sewers, in whole or in part." Sec. 90-2301, N.M. Sts. 1929, Ann.

"If said city council or board of trustees shall elect to assess against said lots and pieces of land abutting on said line of sewer or sewers, * * * a part or all of the cost of such construction, they shall record the amount so elected to be so assessed and shall proceed to apportion said amount among said lots and pieces of land, according to the frontage thereof, so that each front foot of such lots and pieces of land shall pay its proportionate share of the total cost of such construction, and shall assess such amount so determined against each of such lots and pieces of land, * *." Sec. 90-2302, N.M.Sts. 1929, Ann.

Provision is made by Sec. 90-2304, N.M. Sts. 1929, for the delivery of a certified copy of the assessment against the benefited property, to the County Assessor, by him to be entered on the assessment book; from which time such an assessment shall be and become a lien on the lots of land respectively on which the assessments had been made. It further provides that the full amount of the assessments shall be enforced and collected in the manner provided by law for the collection of taxes against real estate.

"Said assessments may be made payable in ten annual payments. * * * Interest at a rate not to exceed six per cent. per annum, in the discretion of said city council or board of trustees, shall be charged upon any balances or amounts not paid when the same are due. * * * The said city council or board of trustees are hereby authorized to issue certificates to be designated ``sewer certificates,' to the amount of such assessment, running for a period of eleven years, and payable in equal annual installments from and after the date of the issuance thereof. Such certificates shall be issued for convenient amounts, shall be negotiable in form and shall bear interest from date at the rate not to exceed six per cent. per annum, in the discretion of said city council or board of trustees. Said certificates shall be issued to the person or persons entitled to receive the same and shall state that they are issued in payment for the construction of said sewer or sewers. They shall be payable from money received from the assessments above provided for, and any deficiency in the fund to pay said certificates shall be paid from the general revenues of said municipality, and said certificates may be redeemed at the option of the municipality issued them at any time before maturity." Sec. 90-2305, N.M.Sts. 1929, Ann.

The provision in Sec. 90-2301 of the statute, which empowers cities and towns to issue bonds "to realize money to pay for the construction of said sewer or sewers, in whole or in part", has reference to the whole, or a definite and fixed portion of the cost of construction of sewers, separate and apart from that assessed against the benefited property. It has no reference to sewer certificates like those in suit, provided for by Sec. 90-2305 of the statutes.

For the purpose of a decision of this case, we will assume that the governing board of the town had general authority to submit the question of the incurring of debts represented by certificates or bonds to the interested electorate for approval (a question we need not decide), and, that if the town authorities were authorized to issue the certificates in suit atall, that the appellant is estopped by the recitals in the certificates to deny that they were issued with the approval of the electorate as the Constitution requires.

The vice in appellee's argument is the assumption that the town governing board had authority at all to issue such certificates as a debt against the town. Sec. 12 of Art. 9 of the state Constitution not only prohibits the incurring of any debt unless submitted to a vote of the interested electorate, but prohibits cities and towns from incurring any debt except by an ordinance "which shall provide for the levy of a tax * * * sufficient to pay the interest on, and to extinguish the principal of, such debt within fifty years." Manifestly this could not be done if the liability to pay is contingent upon circumstances that may never arise, or if they should arise, then the amount of the debt could not be determined until due and payable. Such debt must be fixed, definite and certain in amount at the time it is incurred.

This conclusion is decisive and renders unnecessary the consideration of other questions presented and ably argued by counsel.

The cause is reversed and remanded with instructions to enter judgment for appellant. It is so ordered.

BICKLEY, C.J., and ZINN, SADLER and MABRY, JJ., concur.