Todd v. Tierney

• Decision Date: 04 November 1933
• Docket Number: No. 3910.,3910.
• Citation: 38 N.M. 15,27 P.2d 991
• Parties: TODDv.TIERNEY, County Treasurer.
• Court: New Mexico Supreme Court

38 N.M. 15

27 P.2d 991

TODD

v.TIERNEY, County Treasurer.

No. 3910.

Supreme Court of New Mexico.

Nov. 4, 1933.Rehearing Denied Dec. 12, 1933.

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

Suit by Thomas W. Todd against John J. Tierney, Treasurer of Bernalillo County. From a decree granting a permanent injunction, defendant appeals.

Reversed and remanded, with direction.

E. K. Neumann, Atty. Gen., Frank H. Patton, Asst. Atty. Gen., and J. D. Mell, Sp. Tax Atty., of Santa Fé, for appellant. A. T. Hannett, of Albuquerque, and W. A. Sutherland, of Las Cruces, for appellee. Hervey, Dow, Hill & Hinkle, of Roswell, J. O. Seth and E. R. Wright, both of Santa Fé, and J. D. Atwood, of Roswell, amici curiæ.

SADLER, Justice.

The appellant, as county treasurer of Bernalillo county, appeals from a decree of the district court of said county permanently enjoining him from conducting a sale of real property for delinquency in the payment of taxes for 1931 and 1932, under the provisions of chapter 171, New Mexico Session Laws of 1933, known as S. B. 144, Acts of the Eleventh State Legislature. It was an admitted fact in the case that appellant was the owner of real estate upon which taxes were delinquent for the years mentioned.

The act in question is a new and comprehensive Code for the enforcement and collection of delinquent taxes, prescribing the duties of county treasurers in relation thereto, providing for the sale of real property upon which taxes are delinquent, the issuance of deeds to purchasers, and fixing the means of securing redemption from sales thereunder. It carries the emergency clause authorized by the Constitution, in language as follows: “That it is necessary for the preservation of the public peace and safety of the inhabitants of the State of New Mexico that the provisions of this Act shall become effective at the earliest possible time, and therefore an emergency is hereby declared to exist and this Act shall take effect and be in full force from and after its passage and approval.” Section 44.

The sole attack upon the law, and the ground upon which its enforcement was sought to be enjoined, was that it had been suspended by the filing of petitions with the secretary of state within ninety days following adjournment of the Legislature, bearing the requisite number of signatures to require its submission to a vote of the people at the next general election, under the authority of section 1 of article 4 of the state Constitution, known as the referendum provision. The appellant by demurrer challenged appellee's position, and contended that the act assailed was within the class of laws expressly removed from operation of the aforesaid referendum provision. The basis of this contention is that the act is one providing for the preservation of the public peace, health, or safety, and that, the Legislature having so declared in the emergency clause attached thereto, the courts cannot review and impeach such declaration. The appellant having elected to stand upon the trial court's action overruling his demurrer, the injunction was made permanent, as hereinabove stated.

Actually, by its terms the order appealed from permanently enjoins the appellant as county treasurer from selling property or acting under the law involved, seemingly irrespective of whether upon a referendum it shall be approved or rejected. Certainly it could not properly go further than to stay action pending the referendum except as contingent upon the result thereof.

We have thus squarely presented the question whether the courts may review the legislative declaration that a given act provides or is necessary for preservation of the public peace, health, or safety, in determining whether it is subject to, or exempt from, the referendum provided by the Constitution.

The referendum as it exists in this state is to be found as section 1 of article 4 of the Constitution, and reads as follows:

“The legislative power shall be vested in a senate and house of representatives which shall be designated the Legislature of the State of New Mexico, and shall hold its sessions at the seat of government.

“The people reserve the power to disapprove, suspend and annul any law enacted by the legislature, except general appropriation laws; laws providing for the preservation of the public peace, health or safety; for the payment of the public debt or interest thereon, or the creation or funding of the same, except as in this constitution otherwise provided; for the maintenance of the public schools or state institutions, and local or special laws. Petitions disapproving any law other than those above excepted, enacted at the last preceding session of the legislature, shall be filed with the secretary of state not less than four months prior to the next general election. Such petitions shall be signed by not less than ten per centum of the qualified electors of each of three-fourths of the counties and in the aggregate by not less than ten per centum of the qualified electors of the state, as shown by the total number of votes cast at the last preceding general election. The question of the approval or rejection of such law shall be submitted by the secretary of state to the electorate at the next general election; and if a majority of the legal votes cast thereon, and not less than forty per centum of the total number of legal votes cast at such general election, be cast for the rejection of such law, it shall be annulled and thereby repealed with the same effect as if the legislature had then repealed it, and such repeal shall revive any law repealed by the act so annulled; otherwise, it shall remain in force unless subsequently repealed by the legislature. If such petition or petitions be signed by not less than twenty-five per centum of the qualified electors under each of the foregoing conditions, and be filed with the secretary of state within ninety days after the adjournment of the session of the legislature at which such law was enacted, the operation thereof shall be thereupon suspended and the question of its approval or rejection shall be likewise submitted to a vote at the next ensuing general election. If a majority of the votes cast thereon and not less than forty per centum of the total number of votes cast at such general election be cast for its rejection, it shall be thereby annulled; otherwise, it shall go into effect upon publication of the certificate of the secretary of state declaring the result of the vote thereon.”

The first petition authorized, as will be noted, must be signed by not less than 10 per centum of the qualified electors of each of three-fourths of the counties and in the aggregate by not less than 10 per centum of the qualified electors of the state, as shown by the total number of votes cast at the last preceding general election. This petition may be filed at any time not less than four months prior to the next general election. The second petition authorized must bear signatures of not less than 25 per centum of the qualified electors under each of the foregoing conditions, and must be filed within ninety days following adjournment of the Legislature. In order to avoid useless repetition, and yet distinguish the two petitions, in this opinion we shall refer to petitions as signed either by 10 or 25 per centum of the qualified electors, as the case may be, without mentioning the other conditions attaching thereto, although a statement of such conditions is to be implied in each reference.

In Hutchens v. Jackson, 37 N. M. 325, 23 P.(2d) 355, 361, the question presented was whether the courts can go behind and overturn the legislative declaration of an emergency made in constitutional form, for the purpose of denying immediate effect to an act. We held the courts to be without such power, and, after an extensive review of the authorities, said: “It follows from what has been said that the trial court was correct in refusing to go behind the legislative declaration of an emergency contained in the act in question. That determination was final and conclusive and binding upon the courts.”

But added: “It does not necessarily follow, and we are far from intending to suggest, that the same conclusiveness we accord to the legislative declaration in this case, involving only the immediate or postponed effect of the statute, is to be given such a declaration as precluding an attack by referendum, when the latter question shall be properly before us.”

Our purpose in thus guarding against any misapprehension of the effect of our decision in the Hutchens Case was prompted by the fact that in such opinion we cited as authority and reviewed many cases wherein the courts declined to go behind the legislative declaration that a given act was a safety measure, even though the purpose of the claimed test was to determine its exemption from the referendum. It impressed us then, and still does, that courts giving finality to the legislative declaration in such cases, where the question involved was the important one whether the people had on a given measure reserved or denied to themselves the right of referendum, were high authority upon the somewhat analogous question whether it should be given finality as bearing upon the immediate or postponed effect of the act.

It would have been improper for us in the Hutchens Case to attempt by pure obiter dictum to foreclose or prejudge the case of the referendum now before us for the very potent reason that no such question was involved or presented. But, even had we felt disposed to indulge in dicta arguendo, as appellate courts are at times prone to do in the perhaps mistaken belief that strength is thereby added to positions taken, the effect of the differences, though slight, in phraseology of the referendum and emergency provisions of the Constitution, and the force of other arguments, not then pursued, coming to mind as applicable to a...