Barker v. State Ex Rel. Napoleon.

• Decision Date: 30 August 1935
• Docket Number: No. 4149.,4149.
• Citation: 49 P.2d 246,39 N.M. 434
• Parties: BARKER, Mayor, et al.v.STATE ex rel. NAPOLEON.
• Court: New Mexico Supreme Court

39 N.M. 434

49 P.2d 246

BARKER, Mayor, et al.

v.STATE ex rel. NAPOLEON.

No. 4149.

Supreme Court of New Mexico.

Aug. 30, 1935.

Appeal from District Court, Santa Fe County; Otero, Judge.

Mandamus by the State, on the relation of Emilia Napoleon, against Charles B. Barker, Mayor, and others to compel the levy and collection of a tax to pay a judgment based on a tort in favor of the relator against the city of Santa Fe. To review a judgment issuing a peremptory writ, defendants bring error.

Affirmed.

Constitutional or statutory limitations on municipal indebtedness refer only to obligations voluntarily incurred by municipality, and do not apply to obligations sounding in tort. Comp.St.1929, § 141-1001.

Earl D. Kenney, of Santa Fe, for plaintiffs in error.

Reed Holloman, of Santa Fe, for defendant in error.

BRICE, Justice.

Relator applied for an alternative writ of mandamus against the respondents to compel the levy and collection of a tax to pay a judgment based upon a tort, in favor of relator against the city of Santa Fé. An alternative writ was issued by the district court to which an answer was filed admitting the facts alleged, but denying that there was legal authority for issuing a peremptory writ of mandamus alleging: “That the City of Santa Fe, through its City Council has the discretionary power to levy taxes for general purposes up to a limitation of five (5) mills on the dollar of assessed valuation of property located in said municipality; that the City of Santa Fe will require all monies to be raised by taxes under such limitation for its 1935 municipal current expenses.” And alleged further, in substance, that the respondents had no power or authority under any law to levy a tax to discharge the judgment in question.

The district court held that the relator was entitled to the relief prayed for and thereupon issued a peremptory order commanding the respondents in their several official capacities to do the things necessary and required by law to levy and collect taxes sufficient to pay said judgment and to pay the same to the relator. A writ of error has been sued out in this court to review the final judgment of the district court entered in said cause. The parties will be referred to as relator and respondents.

The case was tried upon the writ and answer. Without stating more of the allegations of the writ than is necessary to determine the case, it is alleged, after preliminary allegations with reference to the official positions of the respondents, that on the 19th day of June, 1933, the relator recovered a judgment in the sum of $8,700, with interest thereon at the rate of 6 per cent. per annum from the date of the judgment, together with costs, against the city of Santa Fe, which judgment is still in full force and effect and no part has been paid; and commanding the several respondents in their official capacity to perform the necessary official acts to the end that a tax be levied and collected for the payment of such judgment and that it be paid.

The parties agree that the sole question to be determined is whether or not there is legal authority for the levying of such tax; all of the proceeds of the levy of a tax of 5 mills on the dollar, the maximum rate authorized under section 141-1001, Comp. St. 1929, being required by the city for municipal current expenses. In other words, Is there authority in the Constitution or laws of the state to levy a tax to pay the judgment in question other than section 141-1001, Comp. St. 1929? It is agreed that, under the facts, no part of the 5-mill levy can be used for such purpose.

Respondents contend that if relator's judgment is paid at all, it must be paid from a tax levy as limited by section 141-1001, Comp. St. 1929; that as all the funds which can be obtained from such levy are needed to pay the ordinary expenses of the city, there can be no fund provided to pay such judgment at this time. The material parts of that statute are: “The maximum rate of tax to be levied for city, town or village purposes or uses shall not exceed five (5) mills on the dollar. *** The foregoing limitations shall not apply to levies for the payment of the public debt or interest thereon; Provided, further, that the limitations herein contained shall not apply to tax levies authorized by the fifth legislature and exempted from similar limitations in existing laws.”

On the other hand, relator contends that the limitation statute has application solely to taxes levied to provide funds for ordinary current expenses and does not include judgments for torts; that the city is authorized to make such levy under its general authority to levy taxes and pay debts.

[1][2] Chapter 133 of the Session Laws of 1921, among others, had the following section (section 302), now appearing in the Comp. St. of 1929, as follows: “141-302. On or before the first Monday in September of each and every year the city council or board of trustees of any city, town or village, shall make and order a levy of taxes for all municipal purposes, and certify the same to the county commissioners. Such levies shall conform to and be within the budgets or estimates for such year as approved by the state tax commission and shall be within the limitations as to rate of levy as provided by law.” The latter was amended as above in 1925 (Laws 1925, c. 102, § 14). Chapter 140 passed at the same session (1921) is the limitation act in question, now appearing in Comp. St. 1929 as section 141-1001; the material parts of which have been quoted. That such statutes have reference to the ordinary municipal expenditures incurred in carrying on business, enacted to protect the public against extravagance and waste where expenditures are discretionary, and not as to items definitely fixed by law and not specifically included, or judgments for torts, or like items over which the officials of municipalities have no control; has been the view expressed by the great majority of decisions where the question was an issue.

“Sec. 278. There is a considerable conflict of authority upon the question as to how far a constitutional limitation upon municipal indebtedness applies to obligations imposed upon municipal corporations by law as distinguished from those which are discretionary or voluntary. It is universally agreed that limitations upon municipal indebtedness do not apply to obligations sounding in tort, and that it is not a defense to an action of tort against a municipal corporation that a judgment for the plaintiff will increase the indebtedness of the defendant beyond the constitutional limit. ***” 19 R. C. L. p. 981.

It is unnecessary to quote from authorities, but we cite the following: Mayor, etc., of Anniston v. Hurt, 140 Ala. 394, 37 So. 220, 103 Am. St. Rep. 45; State ex rel. Pyle v. University City et al., 320 Mo. 451, 8 S.W.(2d) 73; State ex rel. Coolsaet et al. v. City of Veblen, 58 S. D. 451, 237 N. W. 555; Lewis v. Widber, 99 Cal. 412, 33 P. 1128; Dawson County v. Clark et al., 58 Neb. 756, 79 N. W. 822; Little v. City of Portland, 26 Or. 235, 37 P. 911; Heyman & Bro. v. Bath et al., 58 Cal. App. 499, 208 P. 981; Morris v. Sheridan, 86 Or. 224, 167 P. 593; Town of Flagstaff v. Gomez, 29 Ariz. 481, 242 P. 1003; Metropolitan Life Ins. Co. v. Deasy, Auditor, et al., 41 Cal. App. 667, 183 P. 243; State ex rel. Keck v. City of Sunnyside et al. (Wash.) 43 P.(2d) 621; Conner v. City of Nevada, 188 Mo. 148, 86 S. W. 256, 107 Am. St. Rep. 314; Burr v. Board of Supervisors of City and County of San Francisco, 30 Cal. App. 755, 159 P. 458; City of Long Beach v. Lisenby, Mayor, et al., 180 Cal. 52, 179 P. 198; State ex rel. Pool v. City of Willow Springs (Mo. Sup.) 183 S. W. 589; City of Bloomington v. Perdue, 99 Ill. 329; Rice v. Walker, 44 Iowa, 458; Menar v. Sanders, 169 Ky. 285, 183 S. W. 949, L. R. A. 1917E, 422. Also see annotations in 94 A. L. R. at page 937, the headnote of which is as follows: “The general rule is that constitutional or statutory limitations upon municipal indebtedness or upon the amount of municipal taxation refer only to obligations voluntarily incurred by the municipality, and do not apply to its obligations sounding in tort.”

There are a number of cases holding that a limitation on indebtedness does not apply to judgments for tort upon the same reasoning. Chase County v. Chicago, B. & Q. Ry. Co., 58 Neb. 274, 78 N. W. 502; Thomas v. City of Burlington, 69 Iowa, 140, 28 N. W. 480; City of Bloomington v. Perdue, 99 Ill. 329; City of Chicago v. Sexton, 115 Ill. 230, 2 N. E. 263.

The Supreme Court of Missouri in State of Missouri ex rel. Emerson v. City of Mound City, 73 S.W.(2d) 1017, 1022, 94 A. L. R. 923, decided last year, has overruled the Missouri cases we have cited. The Missouri Constitution, after fixing a maximum rate, continued, “said restrictions as to rates shall apply to taxes of every kind and description, whether general or special, except taxes to pay valid indebtedness now existing, or bonds which may be issued in renewal of such indebtedness.” Const. Mo. art. 10, § 11. The court in that case stated: “That the limitation contained in section 11, article 10, of the Constitution as to the annual rates of taxation which may be levied for municipal purposes is self-enforcing and applicable to ‘taxes of every kind and description, whether general or special,’ with no exceptions whatever, except the ones made by the section of the Constitution itself not applicable here, has been held many times by this court, and it makes no difference that the debt is valid or a judgment had been rendered.”

From reading the previous decisions, it would seem that exceptions had been made for many years, though the language of the Constitution is positive and may justify the change, but it is quite different from the New Mexico act. Three of the eight judges of that court dissented. Courts of the state of Texas are likewise an exception to the majority. Gould v. City of...