Altman v. Kilburn , 45 N.M. 453 ( 1941 )

There is involved here the question whether the New Mexico statute of limitations has run against street paving certificate or bond obligations issued by the town of Clayton.

Appellee, plaintiff below, filed his complaint seeking foreclosure of certain paving liens represented by paving certificates or bonds, issued by the said town, of which certificates or bonds he was the owner and holder. Appellants, defendants below, as owners of some of the abutting lots sought to be foreclosed, answered setting up, among other defenses, the controlling one that the causes of action sued upon were barred by the statute of limitations. The parties will hereafter be designated as plaintiff and defendants.

Plaintiff demurred to the answer, the demurrer was sustained, and judgment of foreclosure was entered against defendants. The appeal is from this judgment upon the demurrer.

The complaint contains two causes of action, both based upon paving certificates or bonds issued upon assessments against certain property of defendants. The two causes of action affect property against which like special assessments were made, though at different times and under different ordinances. For the purpose of this case the distinction between the two causes of action is of no moment, the question being one of appraising the paving lien, the ordinance, and the statute authorizing it, in relation to our general statutes of limitation.

The complaint shows that under the ordinances the assessments levied against the property might, at the option of the property owner, be paid, as is usual, in ten equal annual installments, with interest; that for nearly six years there had been default in the payment of any such annual installments.

This lien upon the property so improved by the paving was established by the conventional provisional order method, whereby assessments of benefits were laid upon the property by ordinance, the statutory lien thus created and certificates or bonds issued for the purpose of securing the funds to pay for the improvement. Such certificates or bonds are discharged only by money realized from the assessments collected.

The ordinance in question contained the following provision: "Failure to pay any installment whether of principal or interest, when due, shall cause the whole of the unpaid principal to become due and payable immediately and the whole amount of the unpaid principal and accrued interest shall thereafter draw interest at the rate of one per centum per month or fraction of a month, until the day of sale, but at any time prior to the day of the sale, the owner may pay the amount of all unpaid installments, with interest at one per centum per month, or fraction of a month, on the unpaid installments, and all penalties accrued, and shall thereupon be restored to the right thereafter to pay in installments in the same manner as if default had not been suffered."

Defendants make and rely upon the following points in their challenge to the court's ruling upon their demurrer and its holding the liens good as against their plea of the statute of limitations: (a) that on default in the payment of any installment of the paving liens the entire unpaid balance thereof became due and the cause of action of plaintiff thereupon accrued; and (b) that plaintiff's cause of action is barred either by the six or four year general statute of limitations.

Upon the question of the acceleration of the indebtedness, defendants point to the language of the ordinance authorizing the assessments for the improvements and the bonds issued thereupon as hereinbefore set out, urging that, since the acceleration of the indebtedness upon default of any payment to become due and payable does not rest upon the option of the City or any holder of any paving certificate, the entire unpaid balance upon such default automatically becomes immediately due and payable. Defendants cite and rely upon Buss v. Kemp Lumber Co., 23 N.M. 567, 170 P. 54, L.R.A. 1918C, 1015 and Beebe v. Fouse, 27 N.M. 194, 199 P. 364, as authority for their position. The court, in these two cases, defendants urge, expressly repudiated the idea for which plaintiff contends, that this language of the acceleration clause was for the benefit of the creditor, the City or its assignee, who had an option or election in the matter.

Plaintiff would distinguish the situations presented in both the Buss v. Kemp Lumber Co. and the Beebe v. Fouse cases, supra, from that found here. He points to what he terms extraordinary provisions found in the ordinance here under consideration, viz., (a) the penalty provision, and (b) the restoration provision, and relies upon this distinction in urging that the acceleration provision is solely for the benefit of the municipality, and contends that Roswell v. Levers, 38 N.M. 419, 34 P.2d 865, holding the penalty imposed invalid, does not weaken the strength of his argument. We are not dealing with the tax levying power of the town in its governmental capacity, plaintiff contends. Amici curiae upon one brief also argue strenuously for a distinction between the facts involved in the two cases above cited and the situation presented here.

We see nothing in the case before us to distinguish it to the extent that the rule applied by us in Buss v. Kemp Lumber Co., supra, would not likewise apply here. We hold, therefore, that, under this acceleration clause, the entire indebtedness becomes due and payable upon default in the payment of any installment, without the necessity of an exercise of any option to so declare.

If any statute of limitation applies — and this is the principal point in the case — is it the four or six year statute? Sections 83-103 and 83-104 of the N.M.Comp. Laws 1929, our general limitation statute, read:

"83-103. Notes — Written instruments — Judgments of courts not of record. Those founded upon any bond, promissory note, bill of exchange or other contract in writing, or upon any judgment of any court not of record, within six years."

"83-104. Accounts — Unwritten contracts — Torts — Frauds — General provision. Those founded upon accounts and unwritten contracts; those brought for injuries to property or for the conversion of personal property or for relief upon the ground of fraud, and all other actions not herein otherwise provided for and specified within four years."

It is clear that suit was not brought upon the bonds in question within time to avoid the defense of either the four or six year term provided by such statute, if in fact the indebtedness here involved under the circumstances of the case can be defeated by such statute.

Plaintiff contends that the six year statute of limitation does not control for the principal reason that this is not a contract in writing and the indebtedness does not come within the terms of the statute under any designation. This, he urges, is an action based upon an improvement assessment lien, imposed under the taxing power of the state, which plaintiff seeks to foreclose, and is not an action upon contract; that the certificate or bond is merely evidence of the indebtedness or lien, and is not the foundation of it. Weggs v. Kreugel, 28 N.M. 24, 205 P. 730. In this plaintiff is correct. And, he argues against the applicability of the four year statute for the reason that such improvement tax liens are not there in specified; and further, that if it could be said the act might have applied at the time of its enactment and until 1929, that since then the enactment of Section 90-1217, N.M.Comp. Laws 1929 (Chap. 118, Laws of 1929), which had to do with assessments for such improvement and fixing the lien thereof, gave the status of perpetuity to the validity of such liens; and that since the latter act is a specific statute dealing with the subject of improvement assessment liens, such statute must prevail over a general statute on the subject of limitation of actions.

We would find no difficulty in holding that the four year statute of limitation, which includes "all other actions not herein otherwise provided for", would cover an action of this character, provided other considerations to be hereinafter discussed are not controlling. As was said in the case of Knoxville v. Gervin, 169 Tenn. 532, 89 S.W.2d 348, 351, 103 A.L.R. 877: "``All other cases not expressly provided for' establishes a bar to all suits not specifically mentioned * * *."

The specific act of 1929 referred to (Chap. 118, Laws 1929), provides: "The amount so assessed shall be a lien upon such lot or parcel of land from the time of such assessment * * * which shall be on a parity with the tax lien of general taxes, and no sale of such property to enforce any general tax or other lien shall extinguish the perpetual lien of such assessment." (Emphasis ours.)

Clearly, if these special paving assessments are "taxes", as plaintiff contends, and the municipality acts in a governmental, rather than in a corporate, capacity in assessing such and creating the liens therefore, then, we would say, such liens are created and collected as a governmental function of the municipality, and the tax, or assessment, in this respect, partakes of the nature of a general tax, though it is of course not one, and that no general statute of limitation could affect such obligations and liens. This would be true aside from the other point, also relied upon by plaintiff, that a "perpetual" lien is actually given by the statute authorizing such assessments. Sec. 90-1217, N.M.Comp. Laws 1929.

We know that if the municipality is here exercising a governmental function in improving its streets and thoroughfares, as distinguished from a purely corporate function, then a different rule as to the applicability of the statute of limitation applies. See 17 R.C.L., Sec. 347, page 974, "Limitation of Actions"; 37 C.J., Sec. 32, page 715, "Limitation of Actions".

Was the municipality, then, exercising a governmental function in laying the assessments in question? It is clear that we find a sharp division of authority when we come to answering this question. It is true that the cases often rest upon dissimilar statutes, but a somewhat troublesome and perplexing diversity of authority exists nevertheless. Notes in 103 A.L.R. 877-891.

We know that although the assessment levied against the property improved and presumably benefited is sustainable upon the theory and basis of benefits accruing to such property, and yet there must be present also a public purpose to be served; otherwise such tax or assessment could not be sustained. "It is a well settled principal of constitutional law that no tax can be levied except for the purpose of raising money which is to be expended for a public use." 26 R.C.L., p. 41, par. 26, "Taxation." "Taxes cannot be imposed except for public purpose. This is elementary and applies to taxes by municipal corporations as well as other taxes." 5 McQuillen Municipal Corporations, par. 2372. See 26 R.C.L. p. 46, par. 29, "Taxation", for a definition of public use and citation of authorities. In 25 R.C.L. par. 1, pages 79-82, under "Special or Local Assessments", we find a helpful discussion of the history and nature of assessment liens and their relation to the question of taxes. We find again in 26 R.C.L. par. 22, page 38, "Taxation", this statement of the general rule: "Taxes on property include (1) general taxes laid on all property or on all the property of a certain class located within a specified territory, for the purpose of defraying the public expenses of that territory; (2) special assessments, laid on the property specially benefited by a local improvement in proportion to the benefit, for the purpose of defraying the cost of the improvement."

We said in State, etc. v. District Court of McKinley County et al., 41 N.M. 658, 73 P.2d 333, 336, 113 A.L.R. 746: "Nor is there disagreement on the proposition that in initiating the paving program, appraising benefits, and levying the assessments against abutting property, the town of Gallup was acting in agovernmental capacity. We have held that the power to levy a special or local assessment is essentially a branch of the taxing power. City of Albuquerque v. City Electric Co., 32 N.M. 401,258 P. 574; City of Roswell v. Bateman, 20 N.M. 77, 146 P. 950, L.R.A. 1917D, 365, Ann.Cas. 1918D, 426; City of Roswell v. Levers, 38 N.M. 419, 34 P.2d 865. See State ex rel. Ackerman v. City of Carlsbad, 39 N.M. 352, 47 P.2d 865 and Gray v. City of Santa Fe [10 Cir.] 89 F.2d 406, where similar plans of financing were before the courts." (emphasis ours.)

We find almost universal support for the following rule stated in 25 R.C.L. 85, par. 3: "Notwithstanding the distinctions made between local assessments and general taxes, the laying of special or local assessments is generally recognized as an exercise of the taxing power, rather than the police power or the right of eminent domain, though there were in earlier times several dissentients from this view."

We have also said that "special assessments are levied under the taxing power of the state." City of Roswell v. Levers,38 N.M. 419, 34 P.2d 865, 869. And, in Roswell v. Bateman, 20 N.M. 77, 146 P. 950, 952, L.R.A. 1917D, 365, Ann.Cas. 1918D, 426, quoted with approval language from Franch v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S. Ct. 625, 45 L. Ed. 879, to the effect that "* * * the authority to require the property specifically benefited to bear the expense of local improvements is a branch of the taxing power, or included within it. * * *" And, we have said that: "Such special assessments are quasi taxes and are laid to enable the discharge of some of the functions of government. The power to impose them is related to the taxing power." Walton v. City of Portales, 42 N.M. 433, 436, 81 P.2d 58,60.

In Hagerman v. Territory, 11 N.M. 156, 161, 66 P. 526, we said: "and it is well settled that the plea of the statute of limitations is no defense to those actions by such corporation involving public rights, such as taxation, unless the statute expressly so provides. [Citing Dillon, Municipal Corporation, Sec. 533, and other authorities.] And, as we have already observed, our statute contains no such provision."

It is suggested that in nothing we have heretofore said in any case was it under circumstances whereby we were called upon to directly analyze and distinguish the dual character of the taxing power of municipalities. It will be noticed that in the Levers case, supra, we did, in a way, observe a distinction between taxes levied for support of the general government and those assessed for special improvements when we held that property owners were entitled to set-off penalty and interest paid under protest. We there said: "It is no doubt true that the relation of taxpayer and public is such that taxes voluntarily paid cannot be recovered in the absence of an enabling statute, and that taxes are not ordinarily either the subject or the object of set-off, as against other claims. Nor do we question that special assessments are levied under the taxing power of the state.Nevertheless, we do not consider that we are here dealing withthe ordinary relation between taxpayer and public." (Emphasis ours)

In the case of Staley v. Medford, D.C. Or., 8 F.2d 314, 315, the court, in discussing the applicability of the general statute of limitation as applied to "all taxes", held that the statute did not apply to assessments for local improvements in cities and towns. Such special assessments "are not taxes levied upon the properties designated by the act, nor within the sense and purpose thereof. They are special assessments authorized by the municipality, and not in pursuance of the general system provided for the levy and collection of taxes." A like distinction is made in the City of Cisco v. Varner et al., Tex.Civ.App.,8 S.W.2d 311, and affirmed in, Tex.Com. App., 16 S.W.2d 265. The court there had under consideration the Texas statute, Vernon's Ann.Civ.St. art. 7298, which provides that no delinquent taxpayer may plead or rely upon "any statute of limitations by way of defense against the payment of any taxes due from him or her either to the state, or any county, city or town."

In holding this statute inapplicable to special assessments for improvement purposes, the court said: "So far as we have been able to ascertain, wherever the question has been presented, such assessments have been held not to be a tax within the meaning of the statute of limitation fixing the time for enforcing the collection of taxes. 2 Page Jones on Taxation by Assessments, p. 1849, § 1164; City of Hartford v. Mechanics' Savings Bank,79 Conn. 38, 63 A. 658; Gould v. Mayor, etc., of City of Baltimore,59 Md. 378; City of Galveston v. Guaranty Trust Co., of N Y supra [5 Cir., 107 F. 325]."

But, let us examine further our own commitments upon the subject. This court has, in a number of cases, affecting irrigation assessments, distinguished such assesments from taxes. We said in Lake Arthur D.D. v. Field, 27 N.M. 183, 199 P. 112, in holding special assessments for such improvements on state lands not to be a tax in violation of Sec. 3 of Art. VIII of the N.M. Constitution: "Specific assessment on property for improvements, based upon benefits, the cost of which is assessed against the property, is not a tax within the constitutional sense."

We used the following language in the case of In re Proposed Middle Rio Grande Conservancy District, 31 N.M. 188, 242 P. 683,688: "There is a marked difference between general taxation and special assessments for local objects, and the word, ``tax' may be used in a contract or statute so as not to embrace within its meaning local or special taxes, although both kinds of taxation derive their authority from the general taxing power."

Justices Bickley and Watson in their special concurring opinion in Davy v. McNeill et al., 31 N.M. 7, 42, 240 P. 482, 497, quoted with approval Cooley on Taxation, 4th Ed., as follows:

"While in a general sense the term ``taxes' includes every burden that may be lawfully laid upon citizens by virtue of the taxing power, yet all burdens imposed in the exercise of the power are not taxes.

"For instance, special assessments, although an exercise of the taxing power, are not taxes, so-called taxes are often not taxes within the legal definition of the term. Taxes are the enforced proportional contributions from persons and property, levied by the state by virtue of its sovereignty for the support of government and for all public needs."

And they there employed with approval this further quotation from State ex rel. Johnson v. Chicago, etc., Co., 195 Mo. 228,241, 93 S.W. 784, 787, 113 Am. St. Rep. 661: "The term ``special taxes,' as applied to the charging of the cost of the improvement of city streets against abutting property, is not technically correct. Such charges are special benefits and not taxes in any sense of the word. If they were taxes, they could not, generally, be enforced, because the amount would make the total tax exceed the limitation prescribed by the Constitution."

We reaffirmed what we had theretofore said about such special assessment not being a tax, in Gutierrez v. Middle Rio Grande Conservancy District, 34 N.M. 346, 282 P. 1, 70 A.L.R. 1261, and in Waltom v. City of Portales, 42 N.M. 433, 81 P.2d 58, we describe paving assessment as "quasitaxes".

It might clarify somewhat the confusion which appellee senses as having arisen from some language we have used in earlier cases, particularly the case of State ex rel. Lynch v. District Court of McKinley County, supra, when we say, as we now do, although in levying these paving assessments the municipality was acting in a governmental capacity nevertheless such assessments are not levied for governmental purposes, and are, therefore, not taxes. The municipality exercises a governmental function in levying the tax (for otherwise involuntary payment of such assessments could not be exacted), but it is not for a governmental purpose.

We see nothing in the Lynch case, supra, which commits us to a holding contrary to that now proposed. The language used and relied upon by appellee here was not necessary to a decision, and it is clear that counsel conceded the correctness and applicability of the definition accepted and there employed by Mr. Justice Sadler without considering the consequences likely to thereafter flow from its unclarified use. It is obvious that neither counsel considered the point, for they could not have done so without discovering that the almost unanimous authority was against them — if the statement, contrary to our appraisal of it, was to be taken to mean that such special assessments are taxes in the general acceptance of the term.

In view of what we have said upon the subject and the general distinction which most courts make between "taxes" and "special assessments", it is clear, also, that Sec. 141-715, N.M. Stat.Ann. 1929 Comp., providing that suits for the collection of taxes or for the foreclosure of tax liens shall be barred if not brought within ten years from and after the date of delinquency of such taxes, does not apply to special improvement assessments; so there can be no reliance upon this ten years statute which applies to general taxes.

Appellee attaches much force to the language hereinbefore quoted from Chap. 118 of the Laws of 1929 (Sec. 90-1217, N.M. Stat.Ann.Comp. 1929), providing that "no sale of such property to enforce any general tax or other lien shall extinguish the perpetual lien of such assessment". He contends that this statute, though not as clear as it might be in defining and making such lien perpetual in fact, lends additional weight to his argument that the legislature did not intend that any limitation should apply to paving lien obligations. In the first place, it may be said, the statute does not directly and definitely confer upon these obligations any status of perpetuity. And, in the next place, appellee misconceives the meaning of the term "perpetual lien" as used there. In the case of City of Albuquerque v. Middle Rio Grande Conservancy District,45 N.M. 313, 115 P.2d 66, recently decided, we had an occasion to deal with this term as it applied to assessments for paving improvements, and we there held contrary to this contention. We there said: "In other words, it is reasonable to conclude that all the legislature intended by employing the phrase ``perpetual lien', in view of the context, was that the assessment lien shall be perpetual as against current and future recurring ad valorem tax liens."

And, at the same time, we spoke of the paucity of definitions of the phrase "perpetual lien", but quoted with approval the following: "``Perpetual lien,' as used in a statute declaring taxes to be a perpetual lien is to be taken as meaning a primary lien, overriding all others, and not as continuing delinquent taxes in force against real estate after the statute has barred a right of action thereon. D'Gette v. Sheldon, 27 Neb. 829,44 N.W. 30, 32." 32 Words Phrases, Permanent Edition, p. 172. Appellee is in error in his appraisal of the term as used in our statute.

In the case of Knoxville v. Gervin, 169 Tenn. 532,89 S.W.2d 348, annotated in 103 A.L.R. 877, there was presented almost the identical question with which we are concerned. It was there held that the statute of limitation does run against such special assessments since the assessments imposed are not taxes. We believe that this case and others achieving a like result are clearly fortified with the better reason.

We hold that the four year statute of limitation applies as to all causes of action involved herein, and that the court erred in sustaining the demurrer to defendants' answer and giving judgment for plaintiff. The cause will be reversed with instructions to the trial court to overrule the demurrer and to proceed thereafter in a manner not inconsistent with this opinion.

BICKLEY, J., and EUGENE D. LUJAN and IRWIN S. MOISE, District Judges, concur.

BRICE, C.J., and ZINN, J., did not participate.