State Ex Rel. Martin v. Harris

• Decision Date: 27 June 1941
• Docket Number: No. 4606.,4606.
• Citation: 45 N.M. 335,115 P.2d 80
• Parties: STATE ex rel. MARTINv.HARRIS, Chief Tax Com'r, et al.
• Court: New Mexico Supreme Court

45 N.M. 335

115 P.2d 80

STATE ex rel. MARTIN

v.HARRIS, Chief Tax Com'r, et al.

No. 4606.

Supreme Court of New Mexico.

June 27, 1941.

Appeal from District Court, Taos County; Taylor, Judge.

Mandamus proceeding by the State of New Mexico, on the relation of Helen Martin, against Paul B. Harris, Chief Tax Commissioner of New Mexico, and others, to compel the making of special tax levy for payment of judgment. From a judgment ordering a peremptory writ, the State Tax Commission appeals.

Affirmed and remanded with directions.

On appeal from mandamus order compelling county to levy tax to pay a judgment previously rendered by the same judge, findings in the earlier judgment that failure to pay plaintiff's claim was due to wrongful diversion of funds supported the presumption that earlier judgment rested on theory of wrongful diversion or tort so as to authorize the mandamus irrespective of statutory debt limits. Comp.St.1929, §§ 33-4241 et seq., 33-5601.

C. C. McCulloh, of Santa Fe, and Floyd W. Beutler, of Taos, for appellants.

Kiker & Sanchez, of Santa Fe, for appellee.

MABRY, Justice.

Relator below sought by mandamus to compel the Board of County Commissioners of Taos County to make a special tax levy to produce funds for the payment of the balance due on a judgment owned by her upon which there remains unpaid the sum of $1,203.98 with accrued interest. State Tax Commission and the individual members thereof and the Assessor and Treasurer of said County were joined as respondents to compel the performance of certain official duties incident to perfecting the levy, in the case of State Tax Commission, merely the approval thereof. No appearance seems to have been entered for the Assessor and Treasurer. The record fairly indicates that the Board of County Commissioners approved and consented that the alternative writ previously issued should be made peremptory and State Tax Commission answered challenging relator's right to the writ. Upon final hearing a peremptory writ of mandamus was ordered and State Tax Commission prosecutes this appeal.

The relator came into ownership of the judgment through succession from her deceased husband, the late Dr. Thomas P. Martin of Taos. He had served as County Health Officer of Taos County for the fiscal years 1930-1931, 1931-1932, 1932-1933, 1933-1934 and 1934-1935. In cause No. 3271, theretofore pending on the civil docket of the district court of said county, the relator then serving as executrix of the last will and testament of her deceased husband, had recovered judgment against the board of county commissioners of said county in the sum of $1,569.44, later reduced by a credit thereon for personal taxes due from her decedent's estate to the principal balance found due in the current mandamus action. Upon his death the account of decedent with the county for his services as health officer over the period indicated had not been balanced and the basis of the judgment recovered as aforesaid was the county's liability in relation thereto. This proceeding represents the second effort to enforce a levy for satisfaction of relator's judgment, a peremptory writ of mandamus having issued in a prior mandamus action directing a levy for the year 1939. The board of county commissioners had declined to obey the writ, seemingly as alleged and not denied, because of the refusal of State Tax Commission to approve the levy ordered. The Commission was not a party to the earlier proceeding.

Briefly summarized, the defenses interposed by the respondent commission to the relief prayed are as follows:

(1) That to obey the writ would cause the tax rate to exceed the five mill limit for current expenses imposed on counties by 1929 Comp., § 33-5601;

(2) That compliance with the order would circumvent the twenty mill limitation provided by Const.Art. 8, § 2, for tax levies on real and personal property for all purposes;

(3) That compliance with the alternative writ would operate to violate the Bateman Act (1929 Comp., § 33-4241 et seq.) prohibiting counties from becoming indebted or contracting debts during any current year which cannot be paid from taxes during such current year; and

(4) That the respondent commission has had reposed in it by the legislature judgment and discretion in the matter of approving budgets and determining the amount of money that may be expended by counties for county purposes and that to grant the writ prayed would be to control its discretion contrary to the principles applicable in mandamus.

Touching the issues raised by the petition and answer, the respondent commission tendered evidence for the purpose of showing that the levy sought would cause the county budget for current expenses to exceed the statutory five mill limitation. The only evidence produced on this issue was the testimony of the County Treasurer. It disclosed that for the two or three years immediately preceding the one for which the levy was sought, the rate to provide funds to meet the county budget for current expenses had never been less than 5 mills. Owing to the fact that the 1940-1941 budget had not been approved at the time of the hearing, the witness could not state what the rate would be, although he did say that during the budget hearings thereon Chief Tax Commissioner Harris, the supervisor of budgets, had declined to permit inclusion of one hundred dollars for a new typewriter for witness' office on the ground that they “could not go over the levies required for the budget”. On cross examination the witness admitted there was no certainty that because the levy was 5 mills one year, it would be the same another; that the expenditure for different items might vary. Upon motion all of this testimony was stricken as a mere expression of opinion that the levy for the fiscal year involved would amount to five mills.

Evidence also was tendered by respondent and rejected by the court to show the percentage of tax collections in Taos County for each of the three fiscal years involved and the agreed salary of the county health officer for each of said years. The ground upon which the trial court excluded such evidence, as stated by objecting counsel, is that it was an effort to go behind the judgment in cause No. 3271 and to reopen and relitigate questions properly to have been and presumptively litigated therein which had become res adjudicata as between the parties thereto.

In this court the respondent assigns seven errors, grouping them for argument as follows:

“1. The court erred in striking the testimony of the witness J. B. Martinez, to prove the amount of levy required for the county budget of the present fiscal year.

“2. The court erred in ordering a levy to be made contrary to the constitutional limit of 20 mills for all purposes, and the statutory limit of 5 mills for county purposes.

“3. The court erred in ordering a levy to be made to pay relator's judgment when the entire levy allowed by the Constitution and Laws of this state is necessary for the current operating expenses of this county.”

[1] As to the first assignment, it perhaps is enough to say that the trial court correctly struck the testimony of the County Treasurer for the very reason stated in support of the motion to strike, viz., as a mere expression of opinion. However, for another and stronger reason presently to be mentioned, the action of the trial court was proper. We pass further treatment of this claim of error, momentarily, to dispose of the second assignment of error.

Counsel for respondent claim obedience to the writ will violate the 20 mill limitation on the rate of taxation on real and personal property imposed by Const. Art. 8, § 2. This defense was pleaded in the answer filed. It is correctly stated in their brief that, although we have held that a levy to satisfy a tort judgment may be ordered outside the statutory limitation of five mills (Barker v. State ex rel. Napoleon, 39 N.M. 434, 49 P.2d 246, and In re Atchison, T. & S. F. Ry. Co.'s Taxes, 41 N.M. 9, 63 P.2d 345), we have not yet been called upon to say, and so have never held, that a levy for a tort judgment could be made outside the 20 mill limitation imposed by Const. Art. 8,...