Munro v. City of Albuquerque (two Cases).

• Decision Date: 16 December 1943
• Docket Number: Nos. 4718, 4722.,s. 4718, 4722.
• Citation: 48 N.M. 306,150 P.2d 733
• Parties: MUNROv.CITY OF ALBUQUERQUE (two cases).
• Court: New Mexico Supreme Court

48 N.M. 306

150 P.2d 733

MUNRO

v.CITY OF ALBUQUERQUE (two cases).

Nos. 4718, 4722.

Supreme Court of New Mexico.

Dec. 16, 1943.Rehearing Denied July 25, 1944.

Appeal from District Court, Bernalillo County; Bryan C. Johnson, Judge.

Consolidated actions by James Munro against the City of Albuquerque for declaratory judgment regarding the liability of the city on certain paving bonds. From a judgment for the defendant in one action, the plaintiff appeals and from a judgment for the plaintiff in the other action, the defendant appeals.

Judgment for the City of Albuquerque affirmed and cause remanded, and judgment for plaintiff Munro reversed and cause remanded.

Dailey & Rogers and Donald M. Bushnell, all of Albuquerque, for City of Albuquerque.R. A. Prentice, of Tucumcari, and H. C. Buchly and W. A. Dunn, both of Roswell, E. R. Wright, H. A. Kiker and Manuel A. Sanchez, all of Santa Fe, Robert C. Foulston and John F. Eberhardt, both of Wichita, Kan., and Rodey, Dickason & Sloan, and Frank M. Mims, all of Albuquerque, amici curiæ.Simms, Modrall & Seymour, of Albuquerque, for James Munro.

BICKLEY, Justice.

James Munro, hereinafter referred to as plaintiff, filed two complaints against the City of Albuquerque, hereinafter referred to as the City. In each, plaintiff sought a declaratory judgment regarding controversies between himself and the City as to the liability or lack of liability of the City growing out of certain paving bonds issued by it and owned by him.

The actions were consolidated in trial court and the appeals to this Court are likewise consolidated. The trial court rendered judgment against the City in one case and in its favor in the other. Effort has been made by the parties below and here to raise every question which might affect liability of the City. The plaintiff contends that he is entitled to have his bonds paid by the City because it was derelict in enforcing collection of certain paving assessments and alleges that but for such dereliction on the part of the City there would have been money in the paving fund to pay his bonds.

Amici curiæ aligned with the interests of the respective parties, have, as well as counsel for the parties, argued orally and filed briefs.

[1] We say at the outset that our conclusion renders it unnecessary to make any declaration as to the correctness of the judgment of the lower court that the plaintiff's cause of action in appeal cause No. 4718 was barred by the statute of limitations. The City contends, correctly we think, that if No. 4718 were a separate appeal it would be permitted under our rule XVII, Sec. 2, to assign errors committed against it and thus raise the question whether notwithstanding any error we might find to have been committed against the plaintiff on the statute of limitations conclusion of the trial court, the judgment in that cause should nevertheless be affirmed.

The causes were tried upon the pleadings and stipulations of facts, no witnesses having been offered by either party.

We assume that the assessments were validly made in accordance with the provisions of Ch. 152, Laws of 1919, which was amendatory of earlier acts and which, with some amendments not material to the issues here involved, were carried forward into the 1929 Comp. and also the 1941 Statutes Annotated, and that such assessments were payable in annual installments.

That act provided for the recordation of the liens of the assessments and that “such lien when delinquent shall have the effect of a mortgage and may be foreclosed in the method now provided by statute for the foreclosure of mortgages on real estate.” It was also provided in that act that governing bodies of municipalities shall have power to fix a lien upon the property assessed “and declare such assessments to be a personal liability of the owner or owners of such abutting property.”

No authority was granted to municipalities under these earlier acts to issue bonds payable out of the moneys collected from such assessments.

However, the lawyers devised a plan for doing so and ordinances were adopted by some of our cities pursuant to such plan. In an attempt to supply the absence of express power or authority to provide for the issuance of such bonds these ordinances usually contained a preamble similar to those in the ordinances of the city appearing in the record before us and which we quote from Ordinance No. 136 which was passed, adopted, signed and approved the 26th day of December, 1922 which, as seen, was before Ch. 133, L.1923, authorizing the issuance of this kind of bonds was enacted as follows:

“An Ordinance providing for the issuance of paving bonds by the City of Albuquerque, New Mexico, to be exchanged for a like amount of assignable certificates which have been or will be issued to the contractor constructing street and alley improvements in said city.

“Whereas, the City of Albuquerque, in the County of Bernalillo and State of New Mexico, has heretofore taken proceedings for the paving and improving of certain streets and alleys in said City, all in accordance with the statutes providing thereof; and

“Whereas in response to the notice to contractors to submit bids for the furnishing of materials and the performance of work necessary for the construction of said improvements, a proposition was submitted to the city by the New Mexico Construction Company, under which the said company agreed to accept six per centum bonds in convenient denominations at par, on the prices named in their proposal for furnishing material and performing the work. Provided, that the City would agree to make all collections of principal and interest on all the assignable certificates issued, and to pay such principal and interest to such bank as might be designated by said company on the day and date due; and

“Whereas, upon due and careful consideration of said proposition, the City Commission found and determined that it would be greatly to the profit and advantage of the city, and to the property owners to be assessed for said improvements, to accept the said proposition for the reasons that the said improvements could be constructed at a smaller cost to the property owners, that the said property owners would have a definite time and place for the payment of their assessments and the installments thereof, that such a plan would provide for one central collecting and disbursing agency, and that the city and the said property owners thereof would receive more for marketable bonds issued in convenient denominations than for assignable certificates issued in odd denominations; and

“Whereas, on the 10th of June, 1928, the City by resolution accepted the proposal of the said New Mexico Construction Company and on the 27th of June A. D., 1928, entered into a contract with said company for the construction of said improvements in compliance with their proposal and the considerations therein and herein mentioned.-

“Now, therefore, in consideration of all matters and things herein mentioned and heretofore done and performed.-

“Be It Ordained by the City Commission of the City of Albuquerque.”

Although it is not apparent that after the passage of Ch. 133, L.1923, there was any longer a need therefor the same preamble appears in Ordinance No. 338 which is the one purporting to authorize the issuance of the bonds involved in appeal No. 4722. This ordinance was adopted and approved July 3, 1929.

The provisions of the two ordinances are substantially the same except that in the earlier ordinance Sections 4 and 5 of such earlier ordinance are as follows:

“Section 4. That if the owner of any parcel of land assessed for the said improvements shall be delinquent in the payment of any assessment, installment or interest due, it shall be the duty of the City Treasurer to notify such owner in writing that such delinquency exists, and that if the amount due is not paid within 30 days after the date of the said notice, the matter will be referred to the City Attorney for collection and foreclosure.

“Section 5. If the payment or payments as specified in the next preceding section is or are not paid within the stated time, it shall be the duty of the City Treasurer to refer the matter to the city attorney, whose immediate duty it shall be to enforce and collect the amount due, together with all costs and penalties, by foreclosure, or in any manner which is now or which may be provided by law.” (Emphasis supplied.)

Whereas corresponding sections in the 1929 ordinances are:

“Section 4. That if the owner of any parcel of land assessed for the said improvements shall be delinquent in the payment of any assessment, installment or interest due, it shall be the duty of the City Treasurer to notify such owner in writing that such delinquency exists, and that if the amount due is not paid within 30 days after the date of said notice, the delinquent property will be foreclosed in the manner now provided by statute or as may be hereafter provided for the foreclosure of mortgages on real estate.

“Section 5. If the payment or payments due as specified in the last preceding section is or are not paid within the stated time, the delinquent property shall be foreclosed in the manner now provided by statute or as may be hereafter provided for the foreclosure of mortgages on real estate.”

Construed in connection with the provision of Sec. 2 of each ordinance to the effect that the city is empowered to receive, collect and enforce the payment of the assessments, “in the same manner and at the same time or times as the owner or owners of the assignable certificates issued to pay the cost of said improvements might receive, collect or enforce the said payments” it seems that the method selected in both ordinances whereby the delinquent property should be made to respond to the delinquent assessments was by foreclosure in the method provided for the foreclosure of mortgages on real estate.

Now Ch. 133, L.1923, which is the act...