Hutchens v. Jackson

• Decision Date: 10 June 1933
• Docket Number: No. 3898.,3898.
• Citation: 37 N.M. 325,23 P.2d 355
• Parties: HUTCHENSv.JACKSON, County Treasurer.
• Court: New Mexico Supreme Court

37 N.M. 325

23 P.2d 355

HUTCHENS

v.JACKSON, County Treasurer.

No. 3898.

Supreme Court of New Mexico.

June 10, 1933.

Appeal from District Court, Quay County; Harry L. Patton, Judge.

Action by Roy D. Hutchens, for himself and all other residents and taxpayers of Quay County, similarly situated, against Cleo Jackson, Treasurer of Quay County. From a judgment dismissing the action, the plaintiff appeals.

Judgment affirmed.

Act relating to sale of property for delinquent taxes, if in conflict with prior statutory enactments, repeals earlier laws to extent of irreconcilable conflict. Laws 1933, cc. 109, 171; Comp.St.1929, §§ 33-4241, 33-5901 to 33-5908.

R. A. Prentice, of Tucumcari, and Chas. W. G. Ward, of East Las Vegas, for appellant.

J. C. Compton, of Portales, for appellee.

SADLER, Justice.

The plaintiff, appellant in this court, as a taxpayer and property owner suing for himself and on behalf of all others similarly situated, seeks to enjoin defendant, the county treasurer of Quay county, from proceeding under Laws 1933, c. 171, to give notices, advertise for sale and sell real estate in said county upon which taxes are delinquent for the years 1931 and 1932.

The act whose enforcement is thus sought to be enjoined was enacted as Senate Bill 144, approved March 16, 1933, and by reason of the emergency clause attached, if the effect of the emergency be not open to the inquiry of the courts, effective on that date. It is a new delinquent tax law embracing a comprehensive scheme for the sale of real property for delinquencies in the payment of taxes for 1931 and subsequent years.

The grounds relied upon by plaintiff in his complaint and here urged are as follows: (1) That the legislative declaration in said act declaring an emergency and putting the same into immediate effect upon its passage and approval was without warrant in fact, and is ineffective; (2) that the act violates the “due process” clause of the New Mexico and Federal Constitutions; (3) that the expenditures called for in giving the notices and making the publications required by the act are in violation of 1929 Comp. § 33-4241, the “Bateman Act,” and 1929 Comp. §§ 33-5901 to 33-5908, the so-called “Budget Law.”

The defendant, appearing by the district attorney of the Ninth judicial district, interposed a demurrer to the complaint. The demurrer questioned generally the sufficiency of the complaint and specifically challenged the power of the court to inquire into the question whether an emergency in fact existed warranting the legislative declaration putting the law into immediate effect. The trial court sustained the demurrer, and, the plaintiff electing to stand upon his complaint and refusing to plead further, judgment of dismissal was entered, from which judgment this appeal is prosecuted.

The trial court rendered a written opinion in ruling upon the demurrer, specifically stating that he was only ruling upon the issues raised by the complaint and the demurrer thereto. He thereupon gave it as his opinion that the act was not unconstitutional as depriving landowners of their property without the due process of law. Without passing upon the question whether the legislation assailed violated the so-called Bateman Act or the so-called Budget Act, the trial court merely adverted to the fact that these acts were mere creatures of the Legislature, and, if contravened by a subsequent act of the Legislature, would be repealed by implication to the extent of any irreconcilable conflict. Upon the question of the effect of the emergency clause attached to the act, the trial court held the determination by the Legislature that an emergency existed was final and not open to collateral attack or review by the courts.

We shall consider the points raised in the order of their statement hereinabove. The pertinency to the first point lies in these facts: That the new delinquent tax law directs the sale on the second Monday in June of each year of real property of the respective counties upon which taxes are delinquent for the preceding year or years. The operation of the act for the first sale to be held thereunder is confined to delinquencies beginning with the year 1931. Accordingly, the complaint alleges that the county treasurer is about to begin giving the notices for a sale of real property which under the terms of the act would be held on June 12, 1933. If the act did not become effective upon its passage and approval by virtue of the inclusion of the so-called emergency clause, then the sale about to be held or advertised would be wanting in validity by reason of the fact that there was no law in force, so authorizing, at the time of the doing of the several acts, such as giving notice and the like, required under the terms of the act.

[1][2][3] This brings us to a consideration of the effect of the emergency clause. It is to be construed in the light of applicable constitutional provisions. Section 44 of the act provides: “That it is necessary for the preservation of the public peace and safety of the inhabitants of the State of New Mexico that the provisions of this Act shall become effective at the earliest possible time, and therefore an emergency is hereby declared to exist and this Act shall take effect and be in full force from and after its passage and approval.”

Section 23 of article 4 of our state Constitution provides: “Laws shall go into effect ninety days after the adjournment of the legislature enacting them, except general appropriation laws, which shall go into effect immediately upon their passage and approval. Any act necessary for the preservation of the public peace, health or safety, shall take effect immediately upon its passage and approval, provided it be passed by two-thirds vote of each house and such necessity be stated in a separate section.”

The question of whose determination, that of the Legislature or of the court, shall give conclusiveness and finality to the existence of a declared emergency made the occasion of putting a law into immediate effect, has been many times presented. Two diametrically opposed theories on the subject are reflected in the decisions. According to one line of decisions, the legislative determination is neither final nor conclusive; the matter being held to present a judicial question which gives the courts the final determination. Another line of authorities holds the question to be one strictly and solely for legislative determination, and that, when the Legislature has found the existence of facts warranting its use of the emergency provision for accelerating the effective date of legislation, and has so declared, its action is conclusive and binding upon the courts as well as every one else.

It would be wholly futile to attempt to reconcile these conflicting opinions, and equally unavailing to set out upon a comprehensive review of all of them. Many involve the exemption of a questioned act from the referendum by reason of the declaration in an emergency clause that it is necessary for the public peace, health, or safety, acts relating to which are ordinarily deemed emergent and capable of being given immediate effect, as well as furnishing a class of laws almost uniformly excepted from operation of the referendum provisions. Many of the cases which we shall cite and discuss are upon the question whether it is for the Legislature or the courts to determine when a law is of the class excluded from annullment by referendum. Decisions that the legislative declaration is controlling in that class of cases are obviously strongly in point here.

Illuminating text discussions and case notes dealing with the question are to be found in 59 C. J. 1143 et seq.; 25 R. C. L. § 50, under the topic “Statutes”; 50 L. R. A. (N. S.) 195, 212; L. R. A. 1917B, 15, 26; 7 A. L. R. 519.

Some of the leading cases denying conclusiveness to the legislative determination that an emergency exists or that the questioned act falls within the class of cases excepted from the referendum are the following, to wit: State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11; McClure v. Nye, 22 Cal. App. 248, 133 P. 1145; Atty. Gen. ex rel. Barbour v. Lindsay, 178 Mich. 524, 145 N. W. 98; Merrill v. City of Lowell, 236 Mass. 463, 128 N. E. 862; McIntyre v. Commonwealth, 221 Ky. 16, 297 S. W. 931; State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S. W. 327; State ex rel. Pollock v. Becker, 289 Mo. 660, 233 S. W. 641; State v. Stewart, 57 Mont. 144, 187 P. 641.

Among the cases frequently cited and relied upon as holding to the opposite view will be found Kadderly v. City of Portland, 44 Or. 118, 74 P. 710, 711, 75 P. 222; Roy v. Beveridge, 125 Or. 92, 266 P. 230; Van Kleeck v. Ramer, 62 Colo. 4, 156 P. 1108, 1110; In re Interrogatories of the Governor, 66 Colo. 319, 181 P. 197, 7 A. L. R. 526; State v. Smith, 102 Ohio St. 591, 133 N. E. 457; Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S. W. 199; Hanson v. Hodges, 109 Ark. 479, 160 S. W. 392; followed in Stanley v. Gates, 179 Ark. 886, 898, 19 S.W.(2d) 1000, 1005; Orme v. Salt River Valley Water Users' Ass'n, 25 Ariz. 324, 217 P. 935; Oklahoma City v. Shields, 22, 0kl. 265, 100 P. 559, 575; Day Land & Cattle Co. v. State, 68 Tex. 526, 543, 4 S. W. 865; Culp v. Commissioners of Chestertown, 154 Md. 620, 141 A. 410; Diaz Cintron v. People of Porto Rico (U.S. C. C. A. 1st Ct.) 24 F.(2d) 957, 959. See, also, Wheeler v. Chubbuck, 16 Ill. 361; State v. Crawford, 36 N. D. 385, 162 N. W. 710, Ann. Cas. 1917E, 955; State v. Jackson, 119 Miss. 727, 81 So. 1.

A careful reading and analysis of the two conflicting lines of authority and the reasoning advanced in support of the respective views announced, particularly as applicable to our own constitutional provisions, convince us of the soundness of the rule which holds final and conclusive a legislative determination of an emergency. Perhaps the leading case supporting this rule and the one most...