Tondre v. Garcia

• Decision Date: 16 August 1941
• Docket Number: No. 4545.,4545.
• Citation: 116 P.2d 584,45 N.M. 433
• Parties: TONDRE et al.v.GARCIA, County Treasurer, et al.
• Court: New Mexico Supreme Court

45 N.M. 433

116 P.2d 584

TONDRE et al.

v.GARCIA, County Treasurer, et al.

No. 4545.

Supreme Court of New Mexico.

Aug. 16, 1941.

Appeal from District Court, Valencia County; Lujan, Judge.

Representative suit for a declaratory judgment by Joseph F. Tondre and others against Joe B. Garcia, as Treasurer of Valencia County, New Mexico, and the Middle Rio Grande Conservancy District. From an adverse judgment, the Middle Rio Grande Conservancy District appeals.

Judgment reversed in part and affirmed in part.

A tender of taxes wrongfully refused is equivalent to payment where the tender is kept good, and the result of such a tender and refusal is that it prevents interest or penalties from thereafter accruing on the amount tendered, and renders a subsequent tax sale illegal if the amount tendered be included therein.

George R. Craig and Stanley W. P. Miller, both of Albuquerque, for appellant.

Fred Nicholas, of Albuquerque, and Carl H. Gilbert, of Santa Fe, for appellees.James H. Pershing, Robert G. Bosworth, and Louis O. Kelso, all of Denver, Colo., amici curiae.

BICKLEY, Justice.

This is a representative suit for a declaratory judgment. It was instituted by the plaintiffs, here the appellees, owners of lands situate in the county of Valencia and within the Conservancy District. The complaint tendered the following issues:

1. That the defendant County Treasurer had unlawfully refused to accept the payment of state and county taxes, duly tendered by the plaintiffs, basing such refusal upon the assertion that the same could not be paid unless all Conservancy District assessments against the plaintiffs' lands were also paid at the same time.

2. That tax sales previously held by the defendant County Treasurer and an additional threatened tax sale were illegal because the Treasurer included therein the principal, interest and penalties on delinquent state and county taxes which had been previously tendered.

3. That the Conservancy District's special benefit assessments against the lands of the plaintiffs were illegal for various specified reasons. Inasmuch as the trial court ruled that the plaintiffs could not maintain this contention in the case at bar, and no review being sought of such ruling, this specific issue is immaterial except historically, and for incidental bearing on affirmative issues presented by defendants.

The answer was directed, in the main, to the allegations with respect to the alleged illegality of Conservancy District assessments. It did not deny the tender by the plaintiffs of their state and county taxes, nor the refusal of such tender by the defendant County Treasurer. This tender was kept good by further allegations of the complaint which were not denied.

By way of new matter the answer pleaded res judicata as to the legality of the Conservancy District assessments, pleaded that bonds of the District had been issued and were outstanding, and further pleaded that there was pending in the United States District Court for the District of New Mexico, a cause entitled “J. A. Carpenter et al. v. Middle Rio Grande Conservancy District” (hereinafter referred to as the Carpenter case), in which the court had impressed the funds derived and to be derived from District assessments and levies with a trust in favor of the bondholders and had ordered the District to collect its assessments in sufficient amount to pay its outstanding bonds. It further pleaded that the United States Court, in the Carpenter case, had assumed jurisdiction over the District's funds and had retained jurisdiction for the purpose of making further orders, and, therefore, that the present case presented a conflict of jurisdiction between the two courts.

The reply was also largely directed to the issue of the legality of the Conservancy District assessments. In reply to the defendant's plea of another action pending, the plaintiffs pleaded that there was a lack of identity of parties, subject matter and issues between the two causes, that the decree in the Federal Court cause was entered by consent, upon stipulation, without any bona fide contest of the issues, and that the Federal Court, in that case, had denied applications for leave to intervene and set up certain of the issues presented in the present case, such applications having been made by certain land owners in their own behalf and in behalf of all others similarly situated. The plaintiffs denied that there was any conflict in jurisdiction between the two causes.

Some five months after the answer was filed, the defendant filed a plea in abatement, questioning the jurisdiction of the District Court of Valencia County and maintaining that the Conservancy Court, i. e., the District Court of the Second Judicial District, had original and exclusive jurisdiction to try the matter set forth. This plea in abatement was overruled. Thereafter, upon a stipulation of facts the case was heard by the District Court. Findings of fact, conclusions of law, and a decree including an injunction were rendered thereafter by the court.

The decree ordered the defendant County Treasurer to accept payment of state and county taxes irrespective of delinquencies in Conservancy District assessments and allowed the plaintiffs and all others similarly situated to make good their tender and pay such state and county taxes within a reasonable time fixed by the decree. It further held the tax sales, in which those tendered state and county taxes had been included, to be illegal and enjoined the issuance of tax deeds thereunder. By declaratory judgment, the court also found that the tax sale provisions of our revenue laws were not applicable to delinquent Conservancy District assessments, but awarded no injunctive relief in that respect.

Further pertinent facts will be mentioned in the course of this opinion.

Appellees say that appellants have not complied with our rules respecting assignments of error in that such assignments have not been separately stated, but improperly commingled. We find it convenient to notice appellees' points relied upon in support of the judgment as follows:

1. The trial court correctly overruled the plea in abatement.

2. The trial court correctly ruled that the federal court litigation was not a bar to the present proceeding.

3. The County Treasurer could not legally refuse to accept the tender of state and county taxes, even though unpaid Conservancy District assessments against the same lands were not also tendered.

4. The County Treasurer could not legally sell lands for both state and county taxes and Conservancy District assessments after wrongly refusing a tender of state and county taxes.

5. The provisions of our general tax laws, requiring the sale of property for delinquent state and county taxes are not applicable to delinquent Conservancy District assessments.

In support of the plea in abatement defendants argue that the Conservancy Act, Comp.St.1929, § 30-101 et seq., designates the District Court of Bernalillo County as the “Conservancy Court”, this being the county wherein the petition for the organization of the Conservancy District was filed and the lands in the Conservancy District lying in more than one judicial district, and, that the Conservancy Court for all the purposes of the Conservancy Act, except as otherwise provided “maintain and have original and exclusive jurisdiction co-extensive with the boundaries of said district”. Comp.St.1929, § 30-201(2).

That among the purposes of the Conservancy Act is the organizing of the District, the levying of the assessments, the validating of the assessments, the collection of the assessments, the enforcement of the collection thereof. That such Conservancy Court has exclusive jurisdiction over the officers of the District including the issuance of mandamus to compel the Treasurer of Valencia County, who is ex-officio Treasurer of the Conservancy District, one of the defendants herein, to perform his statutory duty to collect and enforce the collection of the Conservancy assessments in the manner and at the time provided for in the Conservancy Act.

The statutory duty alluded to by defendants is found in paragraph 5 of Sec. 30514, N.M.S.A., 1929, and is as follows:

“Such assessment shall become due and shall be collected during each year at the same time and in the same manner that state and county taxes are due and collectible; and if further assessments in any year are necessary, to effectuate the provisions hereof, such assessment shall be levied, evidenced and certified as herein provided in apt time and not later than the first day of December in such year, to the assessor of each county in which the property subject to such assessments is situate, and with like effect as in case of other assessments.

“If a county treasurer shall wilfully neglect or fail to collect any assessment provided for herein at the time of the collection of other taxes, he shall be subject to a penalty of one hundred ($100.00) dollars for each such failure, unless the collection of the assessment has been enjoined by order of a court of competent jurisdiction; such penalty to be recovered in a suit brought by the board to the use of the district.”

Y1‘ So the appellant argues that if the Conservancy court is the proper and only one which may force the Treasurer to make collections of Conservancy assessments, it also must be the proper and only one to issue injunctions against him. The argument is faulty. The mandamus proceedings referred to in the Conservancy Act are designed to force the Treasurer to discharge a duty which the law imposes. The injunction proceeding, on the other hand, seeks to enjoin him from doing a wrongful act. If the injunction proceeding be well founded, the act sought to be enjoined is not one which the law directs or permits him to perform. In attempting to commit such act he is not carrying out any provision of the law under which the District is created and acting as an officer of...