State v. Rosenwald Bros. Co.

• Decision Date: 08 January 1918
• Docket Number: No. 2100.,2100.
• Parties: STATEv.ROSENWALD BROS. CO.
• Court: New Mexico Supreme Court

23 N.M. 578

170 P. 42

STATE

v.ROSENWALD BROS. CO.

No. 2100.

Supreme Court of New Mexico.

Jan. 8, 1918.

Syllabus by the Court.

The proceedings had under section 5475, Code 1915, are of a special statutory nature, and no right of appeal from the order of the district court is granted the state or the petitioner under that section, not by section 1, c. 77, Laws 1915.

“Special proceedings” defined (citing Words and Phrases, Special Proceeding).

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

Proceeding by Rosenwald Bros. Company, a corporation, for the correction of assessment books. From a judgment for plaintiff, the State of New Mexico appeals. Dismissed.

Proceedings under Code 1915, § 5475, for reduction of an assessment are special, and no right of appeal from the order of district court is granted to state or petitioner under that section, nor under Laws 1915, c. 77, § 1.

H. L. Patton, Atty. Gen., for the State.

J. R. Moore, of Los Angeles, Cal., for appellee.

PARKER, J.

This case comes to us by appeal from the order and judgment of the district court for Bernalillo county. The proceedings below are initiated under section 5475, Code 1915, by the filing of a petition with the district attorney, by appellee, Rosenwald Bros., a corporation, wherein it was alleged that the assessment books of said county should be corrected so as to avoid a 40 per cent. increase in the assessed valuation of certain property of appellee. The district attorney presented the petition to the court, and the relief prayed for was granted, from which order the state appealed.

The appellee has moved to dismiss the appeal principally on the ground that no appeal lies to this court in such cases. Appellee contends that the proceedings below were of a special statutory nature, and that the statute grants no right of appeal from the action of the trial court, whereas, appellant contends that the latter part of section 2, art. 6, of the state Constitution grants the state the right of appeal, said portion of said section being self-executing, and also that the Legislature intended, by the use of the words “Supreme Court” in section 5475, supra, to grant such right of appeal. Section 5475, Code 1915, provides:

“The assessment book, when delivered to the county treasurer, *** shall constitute his authority to collect the taxes therein set forth, and he shall not be held liable for any irregularity or illegality in any of the proceedings prior to his receiving said assessment book; and the amounts to be paid as taxes, as shown by said assessment book, shall not be altered, reduced or in any manner changed, except by direction of the district or Supreme Court; but this prohibition shall not extend to the correction of obvious clerical errors in names, description of property or computation of amount of taxes. If the treasurer shall discover any errors of other kinds, in said assessment book by which any injustice would be done to any taxpayer, it shall be his duty to report the same to the district attorney, and every taxpayer complaining of any such injustice may submit his complaint to the district attorney; and if the district attorney is satisfied that correction or change should be made so as to avoid injustice to the taxpayer, it shall be his duty to submit the matter to the district court and ask for an order of that court that such change or correction should be made, without cost to the taxpayer injuriously affected.”

That section was considered in the case of South Spring Ranch & Cattle Co. v. State Board of Equalization, 18 N. M. 531, 569, 139 Pac. 159, and we held that the section applied to ordinary erroneous assessments as well as to overvaluation of the taxpayer's property. In State v. Chacon, 19 N. M. 456, 459, 145 Pac. 125, we held that section 2, art. 6, of the state Constitution defined the jurisdiction of this court, but did not confer upon litigants thereby the right to appeal. In that connection we also held that appeals are the creatures of statutes, and that when the right is not specifically granted by statute, the litigant is not afforded the right to have his case reviewed by a superior tribunal. The contention of appellant-that the second portion of the section is self-executing and confers the right to appeal upon the state-is manifestly foreclosed by the doctrine announced in that case.

The solution of the question of the right of the state to appeal in this proceeding depends upon a construction of section 1, c. 77, Laws 1915. That section provides that any party aggrieved in “any civil action” may appeal to the Supreme Court. The section cited amended a portion of the act of 1907 concerning civil procedure. Chapter 57, Laws 1907. A reasonably thorough investigation made by us discloses that a distinction is maintained by the courts between ordinary civil actions and special proceedings founded upon statute. It has been held that no appeal exists in the latter class of cases, unless the statute specifically grants the same, the courts or tribunals in such cases exercising special and limited jurisdiction. Kimber v. Schuylkill County, 20 Pa. (8 Harris) 366, 368; Margraff v. Cunningham's Heirs, 57 Md. 585, 589; Baker v. Chisholm, 3 Tex. 157; Tadlock v. Texas Monumental Committee, 21 Tex. 166; Gadd v. Com'rs, 82 Md. 646, 33 Atl. 433; Gabler v. Black, 210 Pa. 541, 60 Atl. 257; Wells v. Thomas, 72 Md. 26, 19 Atl. 118; Naylor v. Naylor, 60 Tex. Civ. App. 606, 128 S. W. 475. In none of these cases is it made clear that the doctrine announced is any different from the doctrine we announced in the Chacon Case, supra, that the right to appeal must be based upon statute. But the inference seems permissible, from an examination of those cases, that unless the right is specifically granted in the act under which the proceedings are created, or by a specific subsequent act, none exists. Those cases all concern special or summary proceedings, such as annexation, abatement of taxes, divorce and election proceedings, as distinguished from ordinary civil actions. The question, however, is more squarely presented in cases hereafter to be noted. Thus in Phillips v. Corbin, 25 Colo. 62, 65, 49 Pac. 279, 280, it was held that a statute allowing appeals from “all final judgments and decrees of the county court” did not authorize an appeal from a judgment of the county court in a proceeding looking to the annexation of contiguous towns, such a proceeding being held to be special. Speaking to the effect of the general provision of the statute allowing appeals from the county court, the court said:

“It is evident, therefore, that, by the enactment of this section, the Legislature had not intended to provide *** for appeals in such proceedings, but that it had reference only to appeals from judgments which were rendered by the county court in the exercise of the jurisdiction conferred by section 1; that is, a ‘civil action.’ ***”

In Pilgrim Consol. M. Co. v. Board of Com'rs, 32 Colo. 334, 76 Pac. 364, the court expressed doubts of its jurisdiction over the case, but entertained the appeal because the question of its jurisdiction was not raised by the parties. The proceeding was to correct errors in the assessment of certain property for taxation. In Board of Com'rs v. Denver Union Water Co., 32 Colo. 382, 76 Pac. 1060, the proceeding below was founded upon a particular statute giving the right to a taxpayer to petition for relief from the payment of taxes in certain events. The court said:

“This act gives to an aggrieved” party “a remedy which in its absence he would not have. It prescribes a special procedure. ***”

While it did not decide the proposition involved in the case at bar, it said:

“It is also doubtful if the Code provisions relating to appeals and writs of error apply to special proceedings. ***”

It is inferred in another part of its...