State v. Montoya.

• Decision Date: 25 March 1927
• Docket Number: No. 3166.,3166.
• Parties: STATEv.MONTOYA.
• Court: New Mexico Supreme Court

32 N.M. 314

255 P. 634

STATE

v.MONTOYA.

No. 3166.

Supreme Court of New Mexico.

March 25, 1927.

Syllabus by the Court.

Laws 1921, c. 133, § 474, offends Constitution, art. 4, § 32, in so far as it attempts to discharge personal liability for taxes duly assessed.

Laws 1921, c. 133, § 474, does not offend Constitution, art. 4, § 32, in so far as it discharges the lien of taxes.

Laws 1921, c. 133, § 474, if construed merely as barring suit to enforce personal liability for taxes, still offends Constitution, art. 4, § 32, since it postpones the obligation.

Authority of special collector of delinquent taxes is not restricted by chapter 26, Laws 1925, to taxes assessed since January 1, 1910.

Appeal from District Court, Bernalillo County; Helmick, Judge.

Action by the State, by J. W. Norment, Special Tax Collector, against Mauracio Montoya. From a judgment sustaining defendant's demurrer, plaintiff appeals. Reversed and remanded, with directions.

Statute, if construed as barring suit to enforce personal liability for taxes, held unconstitutional. Laws 1921, c. 133, § 474; Const. art. 4, § 32.

J. W. Norment, of Albuquerque, for the State.

R. P. Barnes and J. A. Miller, both of Albuquerque, for appellee.

WATSON, J.

[1] The state, by J. W. Norment, special collector, brought suit upon a tax assessment of 1897, praying personal judgment, and for a declaration and foreclosure of a lien upon the property assessed. A demurrer filed was based upon Laws 1921, c. 133, § 474, which reads as follows:

“All taxes accrued upon any property in this state prior to January 1, 1910, whether assessed or not, when no tax sale has been made therefor to a purchaser other than the county, shall be presumed to have been paid, and any tax lien therefor is hereby discharged, and it shall be the duty of all county treasurers to mark such taxes paid.”

The state contended that the section just quoted was ineffectual to defeat its cause of action because of section 32, art. 4, of the Constitution, which reads as follows:

“No obligation or liability of any person, association or corporation, held or owned by or owing to the state, or any municipal corporation therein, shall ever be exchanged, transferred, remitted, released, postponed, or in any way diminished by the Legislature, nor shall any such obligation or liability be extinguished except by payment thereof into the proper treasury, or by proper proceeding in court.”

The trial court sustained the demurrer, holding that the statute, if ineffectual as a discharge of the taxes, did at least operate as a statute of limitations to bar the remedy, and did also discharge the lien, neither of which effects, he held, is obnoxious to the Constitution. The state has appealed.

The above-quoted constitutional provision has been under consideration four times, and each time it has involved questions of taxation. In Board of Education v. McRae, 29 N. M. 85, 218 P. 346, we held that the repeal of a law under which a poll tax assessment had already been made could not affect liability for such assessment. In Asplund v. Alarid, 29 N. M. 129, 219 P. 786, we considered that a property tax once duly assessed would be, and held that a per capita road tax duly assessed was, such an obligation or liability as could not be released or amended. In Lewis v. Tipton, 29 N. M. 269, 222 P. 661, we held that the time of redemption of a tax certificate owned by the state might be extended. The theory of this decision was that, when the county bids in the property, the taxpayer's obligation or liability is extinguished, and that, when he subsequently redeems the property, he in effect merely purchases real estate from the state. State v. State Investment Co., 30 N. M. 491, 239 P. 741, does not seem to have any bearing upon this case. These decisions seem to dispose of the first of appellee's positions; namely, that a tax assessed is not such an obligation or liability as is contemplated by the Constitution in providing that such obligations or liabilities may not be released, etc.

[2] Another of appellee's contentions is that there is nothing in the constitutional provision to prevent the Legislature from releasing the state's lien upon the property. He points out that the lien is purely of statutory origin, does not exist unless expressly provided by statute, and insists that it may be discharged at the will of the Legislature. Appellant's reply to this contention is that a tax lien is essentially an “obligation or liability held by the state.” In a broad sense that contention may be correct, but it does not go far enough. To come within the language of the Constitution, it must be an “obligation or liability * * * of any person, association or corporation. * * *” The tax lien would not seem to be an obligation or liability of a person. As a lien, it is binding only on property. That it happens, also, to be a personal obligation in this case, or, rather, that there is a personal obligation in the same amount, and of the same origin, does not alter the situation. The coexistence of a personal obligation or liability is quite unessential to a lien. 37 C. J. 310, 311. So we hold with the trial court that, in so far as the statute has discharged the lien, it is not violative of the Constitution, and is to be upheld.

[3] As to the personal liability sought to be enforced appellee contends that, if...