Kreigh v. State Bank of Alamogord0.

• Decision Date: 24 May 1933
• Docket Number: No. 3633.,3633.
• Citation: 23 P.2d 1085,37 N.M. 360
• Parties: KREIGH et al.v.STATE BANK OF ALAMOGORD0.
• Court: New Mexico Supreme Court

37 N.M. 360

23 P.2d 1085

KREIGH et al.

v.STATE BANK OF ALAMOGORD0.

No. 3633.

Supreme Court of New Mexico.

May 24, 1933.Rehearing Denied July 24, 1933.

Appeal from District Court, Otero County; Numa C. Frenger, Judge.

Suit by Dale Kreigh and others against the State Bank of Alamogordo. From a decree for plaintiffs, defendant appeals.

Reversed and remanded, with directions.

Trial and determination of suit respecting rights of purchaser at tax sale must be had according to rules prevailing at time of trial, not those prevailing when taxes were assessed.

Holt & Holt, of Las Cruces, for appellant.

J. L. Lawson, of Alamogordo, for appellees.

BICKLEY, Justice.

While Mr. Justice SADLER'S opinion does not reflect the decision of the court, the statement of the case and of the facts is satisfactory, and the views hereinafter expressed are based thereon.

[1] I am in accord with that portion of the opinion of Mr. Justice SADLER which declares that there is nothing in other of our decisions or in section 478, chapter 133, Laws 1921, which detracts from the statement quoted from Williams v. Van Pelt, 35 N. M. 286, 295 P. 418, as follows: “(a) It seems to be conceded by the parties, and we understand the rule to be, that the law in effect at the time of sale governs the matter of redemption and acquiring title after failure to redeem. Cooley on Taxation (4th Ed.) par. 1384. Appellee insisted below, and the court held, that the statute of 1921, under which the sale was made, governed the matter. This is correct. [Italics ours.] When the 1921 Act became effective March 12, 1921, the first half of the taxes of 1920 were past due, but the last half was not yet payable. Under such circumstances, the Legislature had the undoubted power to change the procedure for enforcing delinquent taxes and to make that procedure applicable to the taxes for 1920. There had been no sale and consequently no right of redemption had arisen. Sales to be thereafter made were within the prospective scope of the act whether they were for past or future years. The taxpayer whose property had not been sold prior to the passage of the statute had no vested right in the former procedure to enforce collection. He was not yet the subject of suit. He could avoid sale by paying what the law required. He could insist that the validity of the assessment should be determined by the law in force when it was made. And the law so provided. Section 478, c. 133, Laws of 1921.”

[2] I am of the opinion that all that was “saved” by said section 478 is that, in a suit brought or judgment rendered affecting taxes assessed or which were delinquent at the date of the approval of the 1921 act, “the validity of such delinquent taxes shall be determined by the law in force at the time of making the assessments therefor.” See Chambers v. Bessent, 17 N. M. 487, 134 P. 237.

I advance the further proposition that section 478 should be considered in connection with and as modified by sections 509 and 602 as the opinion of the court suggests, and when so considered appears to save only such portions of repealed statutes as may be necessary to effectuate the enforcement of and securing penalties, obligations, and rights already accrued under the repealed statutes, and that there is no repealed statute dealing with the effect as evidence of a tax deed, and hence none such could have been intended to be saved.

Section 509 declares: “All acts repealed shall be continued in force as far as is necessary to enforce penalties or obligations.”

Section 602 provides: “All laws and parts of laws repealed by Sections 109, 237, 317, 478 and 509 of this act shall remain in force for the recovery of penalties, civil or criminal, already incurred, *** and so for as may be necessary to enforce the assessment, levy and payment of taxes for the years 1920 and 1921, or to enforce or secure rights or liabilities already accrued thereunder.”

If the italicized portion of section 602 is the antecedent of “accrued thereunder,” it appears that the repealed statutes, which were adaptable for enforcing or securing rights or liabilities affecting taxes assessed or which were delinquent prior to 1920 and 1921, were not saved by section 478. If, on the other hand, “accrued thereunder” means rights and liabilities which had accrued for any prior years, then it would appear that the Legislature did not consider that they had saved, by section 478, any of the repealed statutes which were adaptable “to enforce the assessment, levy and payment of taxes, *** or to enforce or secure rights or liabilities,” for such prior years, but saved them by sections 509 and 602.

I invite attention also to the principle that: “The saving clause must have been intended to save something, which would have been otherwise destroyed; to save something out of that, which was repealed.” Colby v. Dennis, 36 Me. 9, 12, cited in Lewis' Sutherland Statutory Construction (2d Ed.) sec. 287. Assuming that section 4101, C. L. 1897, making a tax deed prima facie evidence of certain facts was repealed by omission from the 1915 Code, then the only provision for a tax deed existing in the 1915 Codification is section 5506 thereof, which merely provides that the treasurer “shall execute and deliver to him [purchaser] a deed for the real estate sold.” Chapter 80 of Laws of 1917 contains no provision with reference to deeds, except that more than one tract sold may be included in one deed. None of the sections of earlier statutes repealed by sections 109, 237, 316, 478, and 509, of chapter 133, Laws 1921, pertain to the effect of a tax deed with respect to its being prima facie evidence of the facts recited in the deed or of any facts. So, in considering the saving clauses of the 1921 act, we would not be able to discover that such saving clauses referred at all to any statute relating to the rule of evidence with respect to tax deeds. It might be appropriate to say that the Legislature, by the enactment of section 455, had changed the common-law rule, but I contend that we do not derive any assistance from such circumstance of change in construing the saving clauses themselves in order to arrive at the legislative intent.

The opinion of Mr. Justice SADLER holds in effect that, if suit were brought under the provisions of the 1921 act for taxes delinquent at the date of the approval thereof, the provisions of said act would be applicable and would not be limited merely to the bringing of the suit or the rendering of judgment, but would include the provisions relative to the advertisement for sale, sale, issuance of certificate of sale and the effect thereof, the manner of applying for the tax deed, the issuance and delivery of the deed, and the effect thereof, but would exclude such provisions as affect the determination of the validity of such delinquent taxes. This is correct.

But so far as section 478 is concerned, I see no reason to deny the applicability of the provisions of the 1921 act to “any proceedings” growing out of or incident to the enforcement of the payment of such delinquent taxes which do not affect the determination of the validity of such delinquent taxes, even though proceedings may have been instituted for the collection of such delinquent taxes or establishment of a lien therefor, prior to the effective date of the 1921 act.

In the case at bar, the sale having been ordered before the 1921 act went into effect, and the sale made after its effective date, it is possible that, under section 509 or 602 or both, the officials in charge might employ the provisions of the repealed acts in so far as necessary to enforce penalties and obligations and enforce or secure rights or liabilities already accrued thereunder.

[3] For such purposes, such provisions of the new act as would be available might be employed. In the case at bar, it is admitted by the appellant that the sale was advertised under the provisions of the repealed statute. So far as the time element is concerned, if the officers had seen fit, they could have advertised the sale of April 5, 1921, under the provisions of the 1921 act to have sold property ordered sold on March 9th.

Turning to sections 509 and 602, and applying them to the facts in the case at bar, as far as disclosed, we find the repealed laws are to be employed only in “so far as is necessary” to “enforce obligations” or “to enforce or secure rights or liabilities.” It is fundamental that the procedure to enforce or secure rights or liabilities may be changed. In other words, that no person has a vested right in procedural law. This statement is subject to the qualification embodied in section 34 of article 4 of our Constitution, which declares: “No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.”

I take it that it is the state that is the party interested in the enforcing of the liabilities of the taxpayer, and in securing the state's right to enforce payment of delinquent taxes. After sale, a right I think which the delinquent taxpayer, who is being proceeded against for the enforcement of the payment of delinquent taxes, has, is to have the right to redeem preserved without more onerous conditions. This consequence does not occur in the case at bar. The protection of section 34 of article 4 of the Constitution, supra, is not peculiar to taxpayers who are litigants. It protects all litigants.

Under the provisions of both the new and the repealed acts, the certificate of sale, when recorded, vests in the purchaser, his heirs or assigns, a complete legal title to the property therein described subject to redemption as provided by law.

This right to redeem and the right to have the validity of the delinquent taxes determined “by the law in force at the time of making the assessments therefor” are rights of the delinquent taxpayer. The exercise of the right to redeem by payment of the sum...