State ex rel Overton v. New Mexico State Tax Commission

• Decision Date: 20 October 1969
• Docket Number: No. 8793,8793
• Citation: 1969 NMSC 140,81 N.M. 28,462 P.2d 613
• Parties: STATE ex rel. William C. OVERTON, County Assessor, Los Alamos County, New Mexico, Plaintiff-Appellee and Cross-Appellant, v. NEW MEXICO STATE TAX COMMISSION, Ben Chavez, Chief Tax Commissioner, and Frank S. Ortiz and Wyatt Atkins, Associate Tax Commissioners, Defendants-Appellants, and Cross-Appellees, New Mexico United Veterans Council, Intervenor-Appellant, Veterans for Equalization of Taxes, Intervenor-Appellee and Cross-Appellant.
• Court: New Mexico Supreme Court

Page 613

462 P.2d 613

81 N.M. 28

STATE ex rel. William C. OVERTON, County Assessor, Los Alamos County, New Mexico, Plaintiff-Appellee and Cross-Appellant, v. NEW MEXICO STATE TAX COMMISSION, Ben Chavez, Chief Tax Commissioner, and Frank S. Ortiz and Wyatt Atkins Associate Tax Commissioners Defendants-Appellants, and Cross-Appellees New Mexico United Veterans Council, Intervenor-Appellant Veterans for Equalization of Taxes, Intervenor-Appellee and Cross-Appellant.

No. 8793.

Supreme Court of New Mexico.

Oct. 20, 1969.

Rehearing Denied Jan. 9, 1970.

Robinson & Ortega, Albuquerque, for defendants-appellants and cross-appellees.

Bigbee & Byrd, Santa Fe, and Gallagher & Ruud, Albuquerque, for intervenor-appellant.

James A. Maloney, Atty. Gen., James V. Noble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee and cross-appellant.

Willard F. Kitts, Albuquerque, for intervenor-appellee and cross-appellant.

OPINION

WATSON, Justice.

This is a declaratory judgment action brought by the Attorney General for the County Assessor of Los Alamos County against the State Tax Commission and the commissioners thereof. By it the Assessor questions the constitutionality of § 72-1-13, N.M.S.A.1953 Comp., which had been amended by ch. 304, N.M.S.L.1967. The amendment added the sentence italicized below so that the pertinent portion of the section now reads as follows:

'72-1-13. Soldiers' exemption-Real and personal property, including the community or joint property of husband and wife, of every soldier shall be exempt from taxation in the sum of two thousand dollars ($2,000). The exemption, pursuant to this section, shall be allowed against the assessed valuation of the property against which the exemption is claimed. Where both the husband and wife are soldiers as defined by this act each shall be entitled to assert the full amount of their respective exemptions. * * *' (Emphasis added.)

The Assessor had received a letter from the Tax Commission dated May 2, 1967, advising him of the amendment of § 72-1-13, supra, and instructing him to allow the soldiers' exemption against the assessed valuation and to correct any exemption that might have been granted against the market value.

The complaint alleges that the amendment above set forth was unconstitutional in that it violated Art. VIII, § 5 of the New Mexico Constitution which required that the exemption be deducted from the actual value of the property rather than the assessed valuation. In addition, it is alleged that § 72-1-11, N.M.S.A.1953, Comp., as amended by ch. 42, N.M.S.L.1967, violated Art. VIII, § 5, supra, because it restricted the allowance of the exemption to veterans with at least 90 days active duty who had been residents prior to certain dates, whereas the constitution had no such requirements. The complaint also sets forth in the alternative that § 72-1-11, supra, as so amended, was arbitrary and discriminatory and in violation of Art. II, § 18 of the New Mexico Constitution and in violation of the Fourteenth Amendment to the Constitution of the United States.

The complaint states that an actual controversy exists and that the Tax Commission, pursuant to its supervisory powers over the assessment and tax laws of New Mexico, will force relator (the Assessor) to wrongfully apply the exemption to the assessed valuation instead of the actual value of veterans' property in Los Alamos County, and will prohibit his granting the exemption to all bona fide resident veterans as required by Art. VIII, § 5, supra.

After an answer was filed by the Tax Commission, the New Mexico United Veterans Council intervened on the side of the Commission to the extent of the constitutional issues, and the Veterans for Equalization of Taxes intervened on the side of the Assessor. Thereafter, and on June 20, 1968, the Assessor amended his complaint to add that ch. 304, supra, also violated Art. VIII, § 1 of the New Mexico Constitution, in that the allowance of the exemption against the assessed value of the property would result in levying taxes upon tangible property not in proportion to the value thereof and that the taxes imposed would neither be equal nor uniform upon subjects of the same class. The intervenors' pleadings were similar to those of the parties they joined, except that the Veterans for Equalization of Taxes, by amendment, alleged that ch. 304, supra, also violated Art. IV, § 26 of the New Mexico Constitution, which prohibits the granting of privileges and immunities.

The Commission's answer to both the Assessor's complaint and the complaint of the intervenor, Veterans for Equalization of Taxes, denied the constitutional violations, and, in addition, set up separate jurisdictional defenses which included the claim that the plaintiff and the intervenor had no standing to sue and that their complaints presented no justiciable issue or controversy. Although these affirmative defenses were not pressed before the trial court, they were set forth in the Tax Commission's requested findings and conclusions. The trial court concluded that it had jurisdiction and that an actual controversy existed because the Assessor was being required to do an unconstitutional act, and that the defense of sovereign immunity was not applicable under the circumstances of this declaratory judgment proceeding.

The judgment of the trial court was in two parts: First, that the 1967 amendment allowing the exemption against the assessed value was unconstitutional, but that this was a severable provision from the rest of the act which was constitutional; and second, that § 72-1-11, supra, which set forth the resident and active duty requirements was a reasonable legislative implementation and was constitutional. The Tax Commission and the United Veterans appealed from the first part of the judgment, and the Assessor and the Veterans for Equalization of Taxes cross-appealed from the second part.

Although it has not been urged upon us, nor covered in the briefs, we cannot ignore jurisdictional questions. There must be an 'actual controversy' before jurisdiction is obtained under § 22-6-1, N.M.S.A.1953 Comp. American Linen Supply of N.M., Inc. v. City of Las Cruces, 73 N.M. 30, 385 P.2d 359 (1963). Jurisdiction of the subject matter cannot be conferred by consent of the parties, much less waived by them. Public Service Co. of N.M. v. Wolf, 78 N.M. 221, 430 P.2d 379 (1967); Martinez v. Pesearch Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965). Absent jurisdiction over the parties or absent the power or authority to decide the particular matter presented, and the lack of any essential element is just as fatal to the judgment. Elwess v. Elwess, 73 N.M. 400, 389 P.2d 7 (1964); Bernstein v. Bernstein, 73 N.M. 365, 388 P.2d 187 (1964). If sensed by the court, even though not raised by the parties, the question of jurisdiction compels an answer. State v. Morris, 69 N.M. 89, 364 P.2d 348 (1961); William K. Warren Foundation v. Barnes, 67 N.M. 187, 354 P.2d 126 (1960); Taos County Board of Education v. Sedillo, 44 N.M. 300, 101 P.2d 1027 (1940).

In Sedillo, supra, we pointed out that there must be a real and not a theoretical question, and the party raising it must have a real interest in the question before a declaratory judgment action will lie.

Here the plaintiff is the County Assessor whose duty it is to assess the property and to allow the exemption based upon evidence submitted by the veteran. Sections 72-1-14 to 72-1-16, N.M.S.A. 1953 Comp. The Assessor has no personal stake in the matter. He is under the direction of the State Tax Commission, a superior office. § 72-6-12, N.M.S.A.1953 Comp. The Assessor has no duty to protect taxpayers or veterans against wrongful discrimination. He cannot represent their interests. Board of County Commissioners, etc. v. Hubbell, 28 N.M. 634, 216 P. 496 (1923); See also Tadlock v. Smith, 38 N.M. 288, 31 P.2d 708 (1934). He is not a proper party to represent other persons under Rule 17 of the Rules of Civil Procedure (§ 21-1-1(17). N.M.S.A.1953 Comp.). State Farm Mutual Automobile Ins. Co. v. Foundation Reserve Insurance Company, Inc., 78 N.M. 359, 431 P.2d 737 (1967).

The general rule is that a public officer as such does not have such an interest as would entitle him to question the constitutionality of a statute so as to refuse to comply with its provisions. 16 Am.Jur. Constitutional Law § 128, where it is also said:

'If the duty to act devolves on a superior officer who directs one of his subordinates to perform the act, the general rule is that such subordinate may not in effect review the decision and order of his superior and refuse to act merely on the ground that the law is unconstitutional. Under such circumstances, the superior, and not the subordinate, is responsible for the official act in question.'

We have held that the unconstitutionality of a statute cannot be raised as a defense to a mandamus action against a public officer unless there is a showing that the officer will be injured or jeopardized by the operation of the enactment. Hutcheson v. Gonzales, 41 N.M. 474, 71 P.2d 140 (1937). See also State ex rel. Davidson v. Sedillo, 34 N.M. 1, 275 P. 765 (1929), in which we held that a county treasurer could not question the constitutionality of an act affecting his office unless it had been previously declared unconstitutional by a court of competent jurisdiction. Here there is no allegation or finding that the Assessor will be injured or jeopardized by the questioned laws, the general administration of which is in the defendant. The State Tax Commission has the duty to direct the Assessor as to his duties under the law (§ 72--6--12(2), N.M.S.A.1953 Comp.). The responsibility lies with the Commission, not the Assessor. Nor does the fact that the action was brought by the Attorney General create a cause of action. Asplund v. Hannett, 31 N.M. 641, 249 P. 1074, 58 A.L.R. 573 (1926); Hutcheson v. Gonzales, supra; State ex rel. Capitol...