Johnson v. Greiner

• Decision Date: 12 March 1940
• Docket Number: No. 4534.,4534.
• Citation: 44 N.M. 230,101 P.2d 183
• Parties: JOHNSONv.GREINER, County Clerk.
• Court: New Mexico Supreme Court

44 N.M. 230

101 P.2d 183

JOHNSON

v.GREINER, County Clerk.

No. 4534.

Supreme Court of New Mexico.

March 12, 1940.

Appeal from District Court, Chaves County; James B. McGhee, Judge.

Action by Henry D. Johnson against D. P. Greiner, County Clerk of Chaves County, State of New Mexico, to recover the sum of 25 cents, which plaintiff paid to defendant, under protest, in connection with the filing of a chattel mortgage. From a judgment for plaintiff, defendant appeals.

Affirmed.

Where plaintiff presented a chattel mortgage to a county clerk for filing with usual statutory fee, and clerk refused to file mortgage unless plaintiff paid an additional 25-cent fee which was claimed by clerk to be due his office under statute, and plaintiff paid 25-cent fee under protest, plaintiff could maintain action against clerk to recover the 25-cent fee, since, in effect plaintiff was compelled to pay the additional fee under “duress,” in view of possible effect of failure or delay in filing mortgage. Comp.St.Supp.1938, § 21-102; Laws 1939, c. 112, § 13.

Filo M. Sedillo, Atty. Gen., A. M. Fernandez, Asst. Atty. Gen., and Richard E. Manson, of Santa Fe, for appellant.

O. O. Askren, of Roswell, and Thomas E. Mears, Jr., of Portales, for appellee.

JOHNSON, District Judge.

Appellee, plaintiff below, filed suit in the District Court of Chaves County against appellant, the County Clerk of said county, to recover the sum of twenty five cents. The complaint alleges that appellee, on November 1, 1939, presented a chattel mortgage for filing with the usual statutory fee, and that appellant county clerk refused to file said chattel mortgage unless the appellee would pay an additional fee of twenty five cents; that appellee thereupon paid to the appellant, as such clerk, under protest, the additional sum of twenty five cents and that said sum has not been transferred to the State Treasurer and is now in the hands of said clerk. It is then alleged that said fee of twenty five cents was claimed by said Clerk to be due said office under Section 13 of Chapter 112 of the Session Laws of 1939 of the State of New Mexico.

The complaint then challenges the constitutionality of said Chapter 112 on several grounds including the ground stated in paragraph 4-d, wherein appellee alleges: “That Chapter 112 of the Laws of 1939, as passed, is in contravention of Section 16 of Article IV of the Constitution of the State of New Mexico, for the reason that the bill embraces more than one subject; that is to say, one subject is for the purpose of appropriating a fund for the reconstruction of a capitol building; and, second, a fund created for the purpose of buying lands to be used as public parks and operating of the same, if such lands of scenic beauty may be acquired by the Board, and that said bill was not a general appropriation bill as defined as an exception in said Section 16.”

To this complaint the county clerk filed a demurrer. Paragraphs III-d and IV of said demurrer are in the following language:

“III-d. Plaintiff's complaint fails to allege sufficient facts showing that Chapter 112 of the Laws of 1939 contravenes Section 16 of Article IV of the Constitution of the State of New Mexico, for the reason that the complaint and Chapter 112, supra, show on their face that said Chapter 112, supra, does not embrace more than one subject in the sense prohibited by Article IV, Section 16, of the Constitution, all allegations as to unconstitutionality being mere conclusions of the pleader.”

“IV. That said complaint fails to state a cause of action entitling plaintiff to relief because said complaint shows upon its face that it is an action for the recovery of a fee or tax levied pursuant to the provisions of Chapter 112, New Mexico Session Laws of 1939 and paid under protest by plaintiff; that there is no authority in law, by statute or otherwise, for the payment of such tax under protest and for a suit to recover the same; further, said complaint does not show said tax was paid by reason of any force, fraud or compulsion.”

The district court sustained appellant's demurrer on all grounds except those stated in Paragraphs III-d and IV, and as to Paragraphs III-d and IV, the demurrer was overruled. Both parties took exceptions to the ruling of the Court, and both elected to stand on their pleadings and refused to plead further. The District Court accordingly gave judgment in favor of appellee and against appellant for the sum of twenty five cents. The defendant has prosecuted this appeal.

[1] The first question to be determined is whether or not appellee can maintain this suit. Counsel have not called our attention to any special statute authorizing a taxpayer to pay under protest a tax or fee of the character involved in this case. The general rule under such circumstances has been stated to be: “In the absence of a special statute to the contrary, the fact that an illegal tax is or is not paid under protest is of no importance. If payment of an illegal tax is made under duress, it need not be paid under protest to entitle the taxpayer to recover it back, if he makes it clear that his payment is involuntary, and a protest in such a case is important only as evidence that the payment was the effect of the duress.” 26 R.C.L., page 459, Sec. 414.

Tested by this rule, the appellee may sue to recover the tax paid if the payment was made under duress. Appellee claims the payment was under duress; appellant denies that there was any compulsion, and asserts that appellee had a number of adequate remedies such as injunction or mandamus. Sec. 1, Chap. 54, Session Laws of 1935 (Sec. 21-102, 1938 Supp. to the New Mexico Statutes, Annotated, 1929 Comp.) provides that every chattel mortgage or a copy thereof, shall be filed in the office of the County Clerk, and: “Failure to so file such chattel mortgage, or copy thereof, shall render the same void as to subsequent purchasers or mortgagees without notice, as to judgment or attaching creditors from the date of entry of such judgment or levy of such attachment; as to trustees in bankruptcy from the date of adjudication in bankruptcy; as to receivers from the date of filing the order of appointment, and as to assignees for the benefit of creditors from the date of the recording of the assignment.”

[2] Failure of appellee to file his chattel mortgage would expose him to the risk of losing his security under the filing statute. Every minute might prove important. In effect, the county clerk compelled appellee to pay the twenty five cent fee or risk the loss of his security. It would be difficult to find a clearer case of duress, and we therefore hold that appellee is entitled to maintain this action.

We now turn to appellee's attack upon the constitutionality of said Chapter 112 upon the ground that it contravenes Sec. 16 of Art. IV of the Constitution, which reads as follows: “The subject of every bill shall be clearly expressed in its title, and no bill embracing more than one subject shall be passed ***.”

No contention is made that the subject of the legislation is not expressed in the title of Chapter 112. The sole challenge is that Chapter 112 embraces more than one subject.

The title of said Chapter 112 reads as follows: “An Act Authorizing the Alteration, Reconstruction and Redesigning of the Capitol Building and Executive Mansion at Santa Fe, the Erection of Additional Buildings, the Acquisition of Additional Lands in Santa Fe, the Acquisition of Lands Elsewhere in New Mexico for Park Purposes; Imposing a Tax on the Privilege of Filing or Recording Instruments in the Offices of the County Clerks, Authorizing the Anticipation of the Proceeds of Such Tax by the Issuance and Sale of Debentures, Creating a Capitol Buildings Improvement Commission, Investing in It the Enforcement of This Act and Declaring an Emergency.”

Section 1 of said Act expresses the purposes of the legislation, and Section 2 thereof provides the appropriation:

Sec. 1. “That for the purpose of providing suitable and adequate quarters for the various legislative and executive departments of the State of New Mexico, and relieving the present congestion and lack of suitable and adequate quarters and offices in the present capitol building, and for the purpose of making the architectural design of said capitol building appropriate to New Mexico, the alteration, reconstruction and redesigning of said capitol building and of the executive mansion, the erection of new and additional buildings at Santa Fe, to house the legislative and executive departments of the State, and the acquisition of additional land adjoining the present site of said capitol building, or elsewhere in Sante Fe, and the acquisition of lands elsewhere in New Mexico for park purposes, are hereby authorized in the manner provided by this act.”

Sec. 2. “There is hereby appropriated out of the fund in the State Treasury, to be known as the Capitol Buildings Improvement Fund, the sum of Five Hundred Thousand Dollars ($500,000.00), or so much thereof as may be necessary for the purposes specified in Section 1 hereof, except for the acquisition of lands for State parks, and for this last mentioned purpose, there is hereby appropriated out of said fund the sum of Two Hundred Fifty Thousand Dollars ($250,000.00).”

Section 3 creates a Capitol Buildings Improvement Commission consisting of the Governor and four other members appointed by the Governor. Sections 4-11, inclusive, relate to the organization of said commission and to its powers and duties. These sections outline in detail the various powers and duties of the commission with respect to the alteration and reconstruction of the present capitol building and executive mansion, provide the method of acquiring additional capitol grounds, and authorize the purchase of all necessary furniture and equipment.

The only part of the Act dealing specifically with the acquisition of lands for park purposes is contained in ...