Borrowdale v. Bd. of County Com'rs of Socorro County.

• Decision Date: 09 December 1916
• Docket Number: No. 1867.,1867.
• Citation: 23 N.M. 1,163 P. 721
• Parties: BORROWDALE ET AL.v. BOARD OF COUNTY COM'RS OF SOCORRO COUNTY.
• Court: New Mexico Supreme Court

23 N.M. 1

163 P. 721

BORROWDALE ET AL.

v. BOARD OF COUNTY COM'RS OF SOCORRO COUNTY.

No. 1867.

Supreme Court of New Mexico.

Dec. 9, 1916 Rehearing Denied March 16, 1917

Syllabus by the Court.

Under section 24, art. 4, of the state Constitution, the Legislature has the power to pass local or special laws as to state roads extending into more than one county. A legislative act, which creates a designated route extending into more than one county as a “state highway” and makes provision for the working and opening of the road in one county only, is not violative of the above constitutional provision.

Conceding that chapter 23, Laws 1915, created a “state highway,” as therein described, it was competent for the Legislature to provide for its construction and improvement in one county by any officer or agent it might select. Hence the designation in said act of the board of county commissioners of Socorro county, as the agency of the state, to open and improve said highway, was not violative of the Constitution, and was not an attempt to regulate county affairs by a local or special law.

Section 24, art. 4, of the Constitution provides: “The Legislature shall not pass local or special laws in any of the following cases: Regulating * * * the assessment or collection of taxes or extending the time of collection thereof.”

Held, that this section does not prohibit the enactment of a special law levying a tax for the construction of a state road, the assessment and collection thereof being governed by general law.

The above constitutional provision simply prohibits special legislation regulating those acts which the assessors and collectors of taxes generally perform, and which are denominated “assessments” and “collection” of taxes, and does not prohibit the Legislature from directing the levy of a special tax for a state road within a given county.

The act in question does not violate section 1 of article 8 of the Constitution, which requires that taxes shall be equal and uniform upon subjects of taxation of the same class, by requiring the levy of a special tax upon all the taxable property within the county of Socorro for the purpose of providing a fund for the improvement of the said highway, as the act in question creates a special taxing district for the purpose of improving the highway in question, which the Legislature had the power to do.

Where commissioners are charged with the duty of levying a tax within a given county for the improvement and repair of a state highway, and levy such tax, and thereafter, in anticipation of the revenue to be derived from such tax, borrow money for the improvement of the highway, such debt, so incurred, is not the debt of the county, but of the special taxing district created by the Legislature; hence the act in question in this regard is not violative of section 10, art. 9, of the Constitution, which prohibits counties from borrowing money until after the proposition to create such debt shall have been submitted to the qualified electors of the county, etc.

Additional Syllabus by Editorial Staff.

“Laying out” is, and has been from the earliest times, the appropriate expression for locating and establishing a new highway.

In Const. art. 4, § 24, forbidding the Legislature to pass local or special laws regulating the assessment or collection of taxes, the word “assessment” denotes the official estimate of the sums which are to constitute the basis of the apportionment of the tax between the individuals subject to taxation within the district, as distinguished from the levy.

Appeal from District Court, Socorro County; M. C. Mechem, Judge.

Action by William M. Borrowdale and others against the Board of County Commissioners of the County of Socorro. Judgment for defendant dismissing the complaint on demurrer thereto, and plaintiffs appeal. Affirmed.

This action was instituted in the court below by the appellants, who are all alleged to be taxpayers of Socorro county, for the purpose of enjoining and restraining the board of county commissioners of the county of Socorro from constructing the highway, authorized and required to be constructed by chapter 23, Laws 1915. This act will be found in the footnote.FN1

FN1. Chapter 23.Be it enacted by the Legislature of the state of New Mexico:Section 1. That there is hereby created a state highway to start at Hondo post office, in Lincoln county, New Mexico, and to run via Lincoln, Capitan and Nogales to Carrizozo, from whence it shall run by the most practicable and feasible route to the city of Socorro, in Socorro county, New Mexico, thence, following the route of what is known as the “Ocean to Ocean Automobile Route,” to Magdalena in said county of Socorro, then via the most practicable and feasible route, by way of the N-Bar Ranch and down Silver creek, to the town of Mogollon in Socorro county, New Mexico.Sec. 2. That the board of county commissioners of Socorro county is hereby directed to cause to be made in the years 1915 and 1916 a levy of not to exceed two mills on each dollar of taxable property in said county for the purpose of providing funds for the working and construction of that portion of the said state highway which lies between the city of Socorro and the town of Mogollon in said county.Sec. 3. The proceeds of the levies herein provided for shall be kept by the county treasurer of said Socorro county in a fund to be known as the Socorro-Mogollon road fund, and shall be expended by and under the authority and supervision of the board of county commissioners of said county upon that part of the said state highway which lies between the city of Socorro and the town of Mogollon.Sec. 4. The board of county commissioners of Socorro county is hereby authorized to anticipate the proceeds of the levies hereinabove provided for by borrowing money, the amount not to exceed the total proceeds of said levies, at a rate of interest not exceeding eight per centum per annum; and the said board is further authorized to solicit and receive contributions to assist in the construction of said portion of said state highway, and any funds contributed for such purpose shall be deposited in and credited to the Socorro-Mogollon road fund hereinabove provided for and expended in the same manner as the proceeds of the levy hereinabove authorized.Sec. 5. That chapter 27 of the Session Laws of 1913 and all acts and parts of acts in conflict with this act is hereby repealed.

Appellants also sought to enjoin and restrain the levy of the tax required by the act and the borrowing of money therein authorized. The complaint alleged that the said act was unconstitutional and void for the following reasons: (a) That it is a local or special law for the laying out, opening, or working of a road or highway not in fact extending into more than one county, but lying and being wholly within the county of Socorro. (b) That said act is a local or special law regulating county affairs, in that it attempts to vest in the appellees special authority and supervision of said proposed highway and its construction. (c) That said act is a local or special law for the assessment and imposition of a special tax, in all of which particulars said law is in violation of article 4, § 24, of the Constitution. (d) That said act is violative of article 8, § 1, of the Constitution, which requires that taxes shall be equal and uniform upon subjects of taxation of the same class. (e) That said act is in violation of article 9, § 10, of the Constitution, prohibiting counties from borrowing money until after an election to create such debt has been held and the proposition approved.

Appellees filed a demurrer to the complaint, for want of facts, which was sustained by the trial court. Appellants refused to plead further, and final judgment was entered, dismissing the complaint. From such judgment this appeal is prosecuted.

Hanna, J., dissenting. J. G. Fitch, of Socorro, for appellants.Harry P. Owen, Dist. Atty., of Los Lunas, and Barnes & Nicholas, of Socorro, for appellee. ROBERTS, C. J. (after stating the facts as above).

[1][6] Appellants' first contention is that the act in question is violative of section 24, art. 4, of the Constitution, which prohibits the Legislature from passing local or special laws in certain enumerated cases, among which is the following:

“Laying out, opening, altering or working roads or highways, except as to state roads, extending into more than one county.”

The argument advanced, if we understand appellants' position, is that, because no provision is made for the working of that portion of the highway in the county of Lincoln, the force and effect of the act is only for the “laying out, opening, altering or working” a highway in one county, hence falls within the constitutional inhibition. Concededly, it was competent for the Legislature, under the constitutional provision, supra, to lay out the highway in question.

“ ‘Laying out’ is, and has been from the earliest times, the appropriate expression for locating and establishing a new highway.” Foster v. Park Com'rs, 133 Mass. 321.

By the act in question, the Legislature attempted to lay out and establish a described route extending into two counties as a state highway. Whether the description was sufficient to accomplish the purpose is aside from the question here involved, because, if the description of the proposed route was so defective that the law would fail of its purpose, it would not for such reason be a law, “laying out” a highway in one county; thus we approach the question here, which resolves itself into the simple proposition as to whether the Legislature may constitutionally provide for the working of a state highway by a special mode in one county, not common to all the counties through which the highway is laid out. This question is answered in the affirmative, by the Constitution, if the Legislature had the power to declare that a certain...